Curtain up.

Welcome back, gentle readers. Are you glad to be back in school? Me neither. What I did during winter break:

Nintendogs. The Squid and the Whale. Hiking. Munich. Advance Wars Dual Strike. Brokeback Mountain. Yoga. Syriana. Cooked christmas dinner for 10. Casanova. Half-Life 2. The Matador. Discovering the Glendora Ridge Road. King Kong. Snow activities in Jackson, Wyoming. Harry Potter and the Goblet of Fire.

In Harry Potter, I came very close to committing the first intentional tort of my life as the woman sitting next to me made not one but two calls from her cell phone during the movie. Only my awareness of the penalties awaiting in the civil and criminal justice systems prevented me from grabbing her phone and hurling it to the front of the giant Imax theatre, so I could experience the satisfying sound of plastic shattering.

Winter break also reminded me: school blows.

09 Jan 06

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Hello, nice site look this:

Posted by: Helga at December 16, 2006 02:17 AM


Inquisition.

Up until now, the most frequently asked question has been why are you going to law school?

Over winter break, I noticed that the new #1 question is ‘what kind of law will you practice?’ Apparently, once you’re halfway done people are forced to concede that you’ll likely finish, and move on to the next boring question.

I label these questions boring because they are not really ‘questions’ in the sense of ‘statement designed to elicit information’. Rather, they’re almost always platforms for the questioner to express their opinion about why going to law school / being a lawyer stinks.

Despite this, I’ve always answered these questions accurately and sincerely. But recently, when I tell people I plan to practice X type of law, I notice they usually say “well, my uncle / mother / brother is a lawyer and they hate [whatever shit job they have, totally unrelated to my field of interest]”

While I do think many of the slings & arrows complained of by law students and lawyers are either self-induced or overstated, I have to admit the general public seems to have a hidden agenda to broadcast their negativity about the field of law. Why, oh why?

It’s gotten to the point where I’m tempted to say ‘no comment’ just to forestall the inevitable reaction. Meanwhile, I’m still waiting for someone to ask ‘so, are you studying anything interesting this semester?’ That question, as far as I recall, has never been asked.

10 Jan 06

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Civ pro in the snow.

Last week I went on a day of snowmobiling in the forests near Jackson Wyoming. While we were having our picnic lunch (at a picnic table while it was 30 deg and snowing), I asked the guide about the status of snowmobiling in Yellowstone–I knew the policy had changed around a couple times and figured it might be the type of question this gentleman would’ve formed an opinion about.

Oh, yes. He gave a lengthy rundown of the conflict between locals (pro-snowmobile) and the environmental groups (anti) and the litigation that had ensued.

But the best part was when I asked about who was filing the lawsuits. He explained that because the lawsuit named the United States as a party, it could be brought in any federal court. And the Sierra Club & other environmental groups had chosen to file their suits in federal districts likely to have favorable caselaw and/or judges ... snowmobile dude gave a perfect explanation of federal venue shopping.

11 Jan 06

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Schedule whore.

The big news this semester is that I have successfully whittled down my on-campus appearances to three days a week. This has dramatically improved my enjoyment of law school.

The downside I suppose is that there are a lot of worthwhile classes that happen to meet on Thursdays. To those professors I offer apologies: I never considered your class seriously. The topic may have appealed to me, but I just preferred having the day off.

Part of the secret to my schedule success is having a three-credit independent study. If you have any capacity to get things done without a syllabus lighting the way, this has got to be the best deal in law school. You write the same paper you’d have to write for a seminar, but without the assigned reading and class meetings. I have no idea why people would let their option for up to 7 credits of independent study work go unused.

13 Jan 06

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Legal scholarship.

Students are prohibited from helping professors grade exams because it’s agreed that they’re not qualified to evaluate other students’ work.

But in their role as law review editors, these same students are considered plenty well-qualified to evaluate legal scholarship produced by these same professors.

So consider this: tenure offers for law professors depend on published scholarship. Published scholarship is controlled by students. What does that suggest about published scholarship? What does that suggest about who gets tenure?

There are perennial debates about whether student-run law reviews are a good idea. Law professors seem to end up supporting them, but DUH–getting tenure would be hella difficult if you actually had to pass the scrutiny of peers rather than students.

Am I being stupid? You tell me. What if second-year firm associates graded the bar exam? What if undergrad art students evaluated submissions for the Whitney Biennial? What if admissions decisions were made by current students?

Answer: we wouldn’t take the results seriously. When a procedure requires judgment & discretion, our confidence in the outcome depends on our confidence in the abilities of the person making the decision.

Consider the market incentives this system creates. A non-tenured professor X is shopping her article to law reviews. Did she have to write the greatest, best-researched article ever? No. It just has to pass scrutiny of editorial boards whose members have 2 years of experience with the law.

Are they familiar with her field or the topic? Maybe a little. Are they familiar with prior scholarship in the area? Probably not. So how much effort is Prof X going to exert if she wants tenure?

I’ll let you ponder that one. Here’s another observation: professors who have written casebooks, hornbooks, etc. are reliably smarter than those who haven’t.

I think the reason for this comes back to market incentives. Unlike a law review article, a casebook has to pass scrutiny with a range of economic stakeholders: the publisher who invests in it, the professors who require their classes to buy it, etc. A casebook is, in effect, peer-reviewed by the free market.

15 Jan 06

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Spring semester diversity update.

Last semester I wondered whether my diversity statistics would improve in the spring. Apparently not:

Black students in administrative law: 1

Black students in federal courts: 0

Black students in tax seminar: 0

Black students in my independent study: 0

17 Jan 06

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Clarence Ray who.

Clarence Ray Allen was executed at San Quentin last night:

Only about 300 people turned out to protest the execution ...
[it] did not draw the oratory of the Rev. Jesse Jackson or the folk-singing of Joan Baez, both of whom were among the 2,000 people outside San Quentin’s walls the night Stanley Tookie Williams was put to death last month.

There’s plenty of good reasons to oppose the death penalty. But to me that sums up the problem with the Save Tookie campaign: what passes for principled objection to the death penalty sometimes looks more like opportunistic grandstanding.

Clarence is just as dead as Tookie. Apparently if Clarence had written some children’s books–or maybe if Clarence had been black instead of native American–he would’ve pulled better ratings.

And was Tookie really that worthy of all the attention? It wasn’t like anyone seriously thought he was wrongly accused, nor was there DNA evidence waiting in the wings to exonerate him.

He was a bad dude. He was convicted by a jury and it was upheld all the way through the appeals process. He never once took accountability for the murders, which to me made his “jailhouse redemption” quite a bit less convincing. He was like the “Blair Witch Project” of death row inmates: extremely positive word of mouth, but then you see it up close and you’re like “why are people so into this?”



Ah, the vagaries of public taste. So let us note the death of Clarence, who suffered the accident of bad scheduling, and had an exceptionally tough act to follow.

17 Jan 06

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Death penalty 1.

Here at matthewb.com, we so rarely cover any topics of meaningful heft. But in honor of Clarence & Tookie, maybe we should depart from the usual fluff to provide some death penalty fluff.

There’s one major reason I don’t support the death penalty. But I find some the more popular reasons against it to be less persuasive:

“The death penalty should be abolished because killing is wrong / it’s barbaric for the government to kill people / it’s cruel and unusual / etc.”

You can’t disagree with this one without seeming to object to the proposition that generally, Killing Is Bad. So let me agree: Killing Is Bad.

But we don’t really think literally all killing is bad. If a policeman is being shot at, and he returns fire and eliminates the assailiant, that’s technically a killing, though we excuse it as such.

The problem I get stuck on is that our government has a lengthy track record of killing people. It’s been a major part of our foreign policy since 1776. We have a huge military whose members are trained, among other things, to kill people. Lots of them, if necessary. In addition to covert assassinations carried out by quasi-military agencies (CIA, NSA etc)

So I find it hard to explain why it’s more barbaric to kill a prisoner who’s been convicted of a most serious crime and received the benefit of due process of law, than various citizens of foreign countries.

Ah, you might say, these are essentially self-defense killings. We’re killing people who are shooting at us. Really?

The US military admitted dropping a 500-pound bomb on the wrong house in the city of Mosul on January 8, and says the bomb killed five people. The homeowner, however, claims the bomb killed 14 people, including 7 children. The strike was intended for another target nearby. The house that was bombed was intended as a search target, not as a site to be attacked.

This news item passed largely undetected as the media was covering the dead miners story. These were just ordinary Iraqi citizens, and now–whoopsie!–they’re dead. Those killings strike me as a lot more “barbaric” than Clarence & Tookie, that’s for sure. But they provoked hardly any response.

Bottom line: as a generally satisfied citizen of the United States, I am by implication the beneficiary of a lot of killing. I don’t know how to conceptually isolate the barbarism of the domestic penal system the way others apparently can.

20 Jan 06

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Death penalty 2.

Next possibility:

“We shouldn’t kill people because of the possibility of error–how do we know we’re not executing an innocent man? We can’t undo it afterwards.”

I used to buy this objection, but strangely enough, law school has persuaded me otherwise. Because error is a deliberate policy choice of the criminal justice system.

Criminal trials require a finding of guilt “beyond a reasonable doubt”. It does not require evidence “to an absolute certainty”. That’s a pretty big gap, when you think about it. So it’s flatly incorrect to say that accuracy is the primary goal of criminal justice. It’s high up on the list, but not at the top.

We’d like to think we’re not punishing innocent people, but statistically, there’s going to be a lot of cases that fall into the gap between “reasonable doubt” and absolute certainty. Not maybe. Definitely. When the criminal justice system is working at maximum accuracy, innocent people will still be put in jail.

Could we improve accuracy? Sure, by increasing the evidentiary threshold for conviction. If we required something closer to “certainty” we’d avoid false positives (erroneous convictions). But we’d also increase the number of false negatives (erroneous exonerations). So while we’d know innocent people weren’t going to jail, we’d also know a lot of guilty people were going free.

This is apparently not acceptable, so we engage in a utilitarian calculus about how many false positives we’re willing to tolerate in return for an acceptable conviction rate. Hence, reasonable doubt.

Maybe you’re willing to accept error when it comes to imprisonment, but not for execution. That’s fair. Certainly we could increase the evidentiary standard for capital punishment. Even the Constitution requires “the Testimony of two Witnesses ... [or a] Confession in open Court” for a treason conviction, which is typically punishable by death.

I have no idea of certain states use a higher burden of proof for capital cases. Ultimately the problem with this position is that it suggests accuracy is the issue, and that maybe the death penalty would be OK if you had enough evidence. So this is a flawed objection.

21 Jan 06

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Death penalty 3.

So the objection I find most persuasive:

“The death penalty is a waste of government resources: the time and money spent putting someone to death far exceeds what it takes for life imprisonment [or other equivalent punishment]”

A large incremental price is paid for what is, in terms of punishment, small incremental utility. Though the efficiency varies among states, a death penalty conviction is always the start of a long-term relationship between the courts and an inmate.

Who does this benefit? It turns criminal punishment into epic-length judicial theater. I don’t see how this serves any of the social purposes of criminal punishment. (I dimly remember them from 1L crim law)

I think folks don’t like this argument because it seems to prioritize govt interest in efficiency over a prisoner’s interest in not being executed. But it also makes it more durable–I haven’t heard any argument that the death penalty is administratively efficient.

It seems to be couched more in the idea that the victims’ interest in retribution is worth any cost. I don’t agree with that on principle, and I wonder if victims really feel that way or if it’s a politically imposed projection.

THE END

Back to our regularly scheduled idiocy

23 Jan 06

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Judges.

The high point of yesterday’s class action symposium at UCLA: Judge Marsha Berzon of the 9th Circuit Court of Appeals appearing on a panel, and looking exactly like a bored 6th grader as she doodled in her notebook while Elizabeth Cabraser was droning on.

I would’ve thought that a federal appeals judge would’ve developed more crafty ways of disguising boredom by this point. Or maybe the joy of life tenure is: you don’t have to.

The low point of today’s visit by Justice Ruth Bader Ginsburg: Ruth came across as this totally sweet lady who happens to sit on the nation’s highest court. And she voluntarily scheduled a Q&A with students, so maybe that’s assumption of the risk right there. But I could not believe the number of jackass questions my fellow students asked her.

Things could’ve been worse, I know. But when someone steps up and their ‘question’ is typed out on multiple pages ... you know you’re in trouble. There was the pair of dudes who had a lengthy, ridiculous question about some fussy issue lurking inside a First Amendment case. Guys! It’s a published case! Read it!

Then this guy (must be a 1L) in his one suit & tie asks a Bill O’Reilly type question about the effectiveness of the senate confirmation hearings. Ruth pointed out his history was incorrect, and then dismissed his question. Of course, he immediately gets back into line to ask a ‘follow-up’ question. SIT DOWN!!

Then comes the woman ... the crackpot we were all waiting for ... who had no question, but rather a speech about Native American something something and drug abuse and the ATF or something, I couldn’t follow it. She was just reading from a script.

If you thought of Ruth Ginsburg as a lightweight justice, think again. She cut in on the crackpot and said hey, you don’t have a question, and nobody wants to hear your speech. All of us in the main hall had to repress our urge to applaud wildly.

27 Jan 06

Comments

Too bad about her visit. I was hoping that her visit would have resulted in more thought provoking discourse. Where have all the thoughtful conservatives gone? I’m prone to conservative ranting myself but I also realize it is a unique opportunity to elicit some thoughts beyond what is just in her opinions. I was considering setting up a tent on the lawn out front and putting up a sign saying “condemned and evicted so they can build a starbucks” in reference to the Kelo decision, but they wouldn’t let me bring all my stuff on the bus (liberal conspiracy!). I don’t think this would have had a detrimental effect on legal discourse inside the law school yet still provided some comic relief.

Posted by: tonyr at January 28, 2006 12:52 AM

As MB pointed out, Justice Ginsburg was great. One thing I was particularly happy with was her willingness to point out what an embarrassment the Senate Democrats are making of the confirmation process (and themselves). I think she finished her response with, “...it has to stop.” Great stuff.

Posted by: Bader lover at January 28, 2006 10:49 AM

The suit? Our 1L Moot Court Champion. And mock trial team member. Enough said.

Posted by: at January 28, 2006 11:46 AM

“the suit” - I love it!

Posted by: at January 28, 2006 12:40 PM

See, this is why they don’t let us have nice things....

Posted by: at January 29, 2006 12:35 AM

I got a little nervous when she defended the persuasive value of foreign legal precedent by likening it to a law review student comment. Not, IMHO, a winning argument.

Posted by: MB at January 29, 2006 09:14 AM


How much is that professor in the window.

UCLA has received $1 million to endow the David Binder Chair in Clinical Law.

Prof. Binder, as previously reported, makes $189K a year. Add in pension, health benefits, discounts on rice bowls in the student cafe, and you’re probably looking at $220K in compensation-related costs.

Now if we invest that $1M at 4.5% a year–and that won’t cover inflation–it’ll yield $45K. So with this “endowment” the law school can afford to buy about 20% of a David Binder-level professor.

Maybe they’ll be selling candygrams to make up the difference.

30 Jan 06

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