Week 6.

The undergraduates have arrived back at UCLA this week so every line on campus is now considerably longer. How is it they can get properly educated starting school so late? Sheesh.

The UCLA daily newspaper (what’s it called? The Daily Bruin or something? Are bruins typically a daily occurrence in nature?) is almost indistinguishable from The Onion except that it’s, you know, real.

The Onion, you see, exists on two distinct levels of satire. One is its take on the news of the day. The other, which I believe goes over the head of most of us city dwellers, is its parody of small-town papers with their overblown opinion pieces, “local color” columns written by local characters, fascination with minute goings-on not really suitable for journalistic coverage, etc.

Student newspapers I suppose are exempt from some of this scrutiny because despite being meant sincerely, we assume that they’re published by people who don’t know any better. In the meantime, I savor the feature articles about the outrageous difficulty of purchasing bedsheets in Westwood Village, and the editorial cartoons drawn with ball-point pen on dining hall napkins.

01 Oct 04


Vote wisely.

I don’t know what you got in your absentee ballot to remind you how to fill in the card properly, but this is what we in California got. A puppy and a poem. This is the kind of thing that makes me vote against tax increases.

01 Oct 04


Sadly, the prevalence of puppy love may well mean that this approach improves the accuracy of the count.

On the other hand, were anyone to argue that an inability to fill out a simple ballot should disqualify a person’s vote wouldn’t get much of an argument from me.

Posted by: Russ MItchell at October 2, 2004 07:03 PM

Crazy taxi(ng).

Come to think of it, I did vote against two taxes. One of them was a tax on people who make more than $1 million per year to support public mental health services. The other was a phone line tax to improve emergency response services.

I always vote against these types of taxes because a tax should tend to fall on the people who benefit from it. Right? Don’t we all benefit from social improvements like mental health and emergency response infrastucture? If it’s such a great idea, the legislature can find a place for it in their budget. Otherwise it’s just freestanding taxation attaching itself to wherever it can find a home.

01 Oct 04


Too bad Bush is such a schmuck; otherwise, you could consider voting Republican.

Posted by: Russ Mitchell at October 2, 2004 07:09 PM

I like taxation! Just tax everybody!

Sad thing is that Bush has gone a long way towards making Democrats look like the party of fiscal responsibility. I was reading that under Bush, the federal discretionary budget has grown something like 10% per year, compared to an average of 2-3% under Clinton.

Posted by: MB at October 3, 2004 04:30 PM

......and let’s not even TALK about the budget deficite since the Iraqi war began.....


Posted by: Pamby at October 7, 2004 05:10 PM

I am voting against that measure, for the reasons MB has incicated.

As to Prop 71, the stem cell bill, I am torn. I support the reasearch and wouldn’t mind California being known as the world’s capital of stem cell research. But where did they come up with $3B over ten years? That’s a huge price tag by any measure. I called into a talk show today to ask a big proponent where that figure comes from. Of course, the person hadn’t the slightest clue.

How can I vote on that huge a budget increase without anyone justififying the amount involved? Could much have been accomplished at half the cost. I think so. Any thoughts.

And by the way, as to this:

>because a tax should tend to fall on the people who benefit from it

I think MB needs to sharpen this argument a bit as to allow for both direct and indirect benefits. If we restricted taxes to fund only government spending that directly benefitted individuals, there would be no need for government because the market would be able to handle the whole thing.

I do agree that hitting up certain income segments to pay for programs with ostensible social benefits is a bad idea.

Posted by: Russ Mitchell at October 7, 2004 05:32 PM

re Iraq spending: as far as I know, everything we’ve spent on Iraq is IN ADDITION to the deficit Bush has already racked up. Granted, it’s been a soft cycle for tax revenue, but still.

I did vote for the stem cell research. Maybe that was crazy. But it’s an example of something funded with bonds, and the interest costs fall on the state budget, which a cost redistributed among all through tax.

Indirect benefits is ok. Progressive taxation is ok. But usually the $1M-income tax or the phone tax is a sign of a measure that wouldn’t have had enough public support as a general measure. You know the signature collection guys were standing in front of supermarkets saying “Make rich people pay their fair share! Make cell phone users pay for their own car accidents!”

Posted by: MB at October 7, 2004 07:50 PM

Totally with you on the marketing of tax hikes.

Berkeley had no support for putting on a ballot measure that would raise general property taxes. So now it’s asking voters to approve separate measures for:

1) youth services

2) libraries

3) paramedic and fire service

All of the money would go into the general fund. None are bond measures. Will be interesting to see if they get away with it.

Posted by: Russ Mitchell at October 8, 2004 08:42 AM


The supreme court is entering its eleventh year with the same justices—the only longer streak was the 12 yrs from 1811-1823; the longest streak in this century was 6 yrs (1975-1981)

While we like to blame republican presidents for the heavy-duty conservatives on the court, let us remember: William Rehnquist was confirmed 68-26 by a democrat-controlled senate in 1971. Antonin Scalia was confirmed 98-0 by a democrat-controlled senate in 1986. Clarence Thomas was confirmed 52-48 by a democrat-controlled senate in 1991 (a straight party-line vote except for, uh, 10 democrats)

Hm, what do you think the chances are the current republican-controlled senate will return the favor as justices inevitably begin to step down in the next few years.

03 Oct 04


How to talk like a law professor.

Contrary to conventional wisdom, legal opinions are not full of portmanteaux like “thereupon” “hereinafter” “notwithstanding” etc. (You’re more likely to see those in contracts.) No, the greatest linguistic tic of the legal scholar is the phrase “as to”.

“As to” roughly translated means “with respect to” or “pertaining to”. It’s really a conjunction, and can be useful in a variety of contexts. The state of mind as to the act of robbery. The damages as to the original act of negligence.

However. Reliance on “as to” means that judges & law professors start unnecessarily converting verbs into adjectives. So instead of “Did that answer your question?” you’ll sometimes hear “Was that responsive as to your question?” Further down the line, “what was your decision as to eating lunch?” “is there consensus as to ordering another keg?” And so on.

06 Oct 04



The Onion on the overruling of certain Patriot act searches:

“That’s the way these things happen. First, they overturn one little clause, then they whittle away at the rest. Before you know it, our civil liberties will be totally restored.”

06 Oct 04


Gay marriage.

I’ve been looking into the topic of “jurisdiction stripping”. Congress is attempting to pass a law (Marriage Protection Act) forbidding the federal court system from hearing cases on the validity of gay marriage. In general, though federal judges don’t encourage it, congress does have the power to add or remove topics from the jurisdiction of federal courts.

However, the issue is unlikely to come up through the courts on those grounds. As our presidential candidates are at pains to note, marriage is historically a state issue and the states need to decide for themselves (this fact allows candidates to take whatever position on gay marriage they want without having to back it up with action—the president has no power to set marriage laws)

Still, thanks to the full faith & credit clause of the constitution, gay marriage may not be a federal issue but it’s certainly a national issue. As soon as ONE STATE fully legalizes it (eg Massachusetts has authorized it, but it’s still in the midst of legal & state constitutional challenges) those marriages will have to accepted by all the other states as legit under the FF&C clause.

The net effect is gay marriage will be legal everywhere, even if marriage licenses are not available everywhere. Even if many states pass laws preventing gay marriage from originating in that state, FF&C will let them in through the side door.

Once legislatures figure that out, they will run to amend their laws to close the FF&C loophole, by saying “we accept FF&C except for gay marriage”. And there is the federal constitutional issue.

Historically the supreme court has not been generous to states attempting to trim federally-granted constitutional rights down to state parameters. It has also not been generous to laws that discriminate, which goes back to the significance of the Lawrence v Texas decision last year, which struck down the Texas anti-sodomy laws. What the court was really saying is “you can’t make laws that selectively target gays”.

Eventually the Supreme Court will probably hear a case involving an FF&C restriction that targets gays and if they apply Lawrence as precedent, it’ll be a real dust-up on the bench.

08 Oct 04


Interesting. Our church council just gave the go ahead to our pastor to NOT discriminate in conducting marriage ceremonies, and to screen any couple and every couple in the same way. So, in essence, we are endorsing gay marriage. We are pleased at their decision.

Really, it would be best if the religious portion of a ceremony was just that......and didn’t also complete a legal proceeding....simply a blessing, if you will. Still, since it is what it is, we are in support.

Posted by: Pamby at October 13, 2004 04:03 PM

Week 7, looking to exams.

The halfway mark of the first semester of law school. That really wasn’t so bad. I guess that’s why they have finals in the 2nd half, to maintain a high level of suspense.

Attention is slowly shifting to the exams, which are your entire grade in the class. Law school has a reputation for being cutthroat and competitive. UCLA is pretty mild in this regard but it’s an inevitable result of the curve grading system: the goal is not to be good in absolute terms, what’s important is being better than your classmates.

Everyone is starting to negotiate that gray area between being overly self-reliant (and missing important points of law) and being overly generous with one’s study materials (and potentially giving away a competitive advantage)

I know it sounds horrible. But consider. Law exams are entirely open-book. So one’s net performance is going to be a combination of a) the quality of the materials you prepare & bring to the exam and b) what you actually write. If you come up with the greatest torts exam technique ever, it doesn’t benefit you to share it.

Believe me, there are people who have an intuitive grasp of all the material who will be weak on the exam; and there are people with a so-so grasp of the material who will prepare great exam materials and ace it. The exam is not a test of being a lawyer. It is a test of specific analysis & writing skills in a limited time interval. To do well, you can’t gloss over the executional aspects.

08 Oct 04


Bad student.

For the first time today I found myself sneaking in a quick round of Galaga (which I have, along with dozens of other 80s videogames, on my class laptop) at the beginning of Torts. I just needed a 3-minute vacation.

Spring semester virtuously has spring break as an intermission. October is the long slog for the fall student, as there’s no holiday relief from Labor Day to Veterans Day.

In brighter news, Prof Crim’s lectures have gotten so far behind his reading assignments that I won’t have any new reading next week.

13 Oct 04

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Week 8, culture of complaint.

To those who wonder how the US economy can absorb thousands of law school grads each year, one answer is because lawyers get disillusioned and leave the profession with apparently great regularity.

This leads to a body of written work that might be termed the literature of complaint (perhaps literature of whining is more apt)

These are the books and articles (frequently written anonymously) that all feature a protagonist who, while incredibly successful & important as a lawyer, wakes up one day and realizes its great tragic emptiness. Blah blah etc.

1. These tales speak to no fundamental misery intrinsic to the legal profession, but rather the naive and uninformed expectations carried into the profession by folks who should’ve known better. I mean, long hours, long meetings, eccentric senior partners, absorption of your life—this is exactly the experience big law firms promise. Everyone knows this. So then you take a job there and you’re surprised when that’s exactly what it’s like?

2. These ex-lawyers are sufficiently vocal in their discontent that they give the impression there are no happy lawyers. Logic implies there are plenty of firm partners who are busy and rich and like it that way. Those guys don’t, as a rule, publish often—“I’m a Rich Lawyer and Life is Good”.

3. So why do disgruntled lawyers feel so impelled to share their suffering? Part of it must be their primal scream against the world in retaliation for their powerlessness. The other is to bend the ear of sympathetic law students, lawyers and ex-lawyers. Misery has always loved company. I guess there is satisfaction in thinking you’re revealing The Big Lie Nobody Knows!! But everyone knows.

These guys have no one but themselves to blame for poor career choices. So many jobs in America are awful, repetitive, back-breaking, soul-dulling work. People find some happiness in them because they’re dependent on them.

For a white guy (it’s always a white guy) with the huge privileges of education and massive compensation to blather on about how it’s not fulfilling to him ... I suppose he’s entitled to his angst, but angst is itself a luxury most can’t afford.

These tales of woe end up circling around a sermon on the importance of “freedom” or “autonomy” or “what’s really important”. Translation: “it’s taken me 8 years to realize that even as a well-paid lawyer, it’s a cash flow business, not a capital business. You don’t end up amassing some war chest that you can live off of. I chose to develop an expensive lifestyle—which you think I’m owed, because I’m an important lawyer—with ongoing obligations and I’ve become totally dependent on those large ongoing checks.”

And for these colossal personal mistakes of common sense, financial prudence and self-awareness, the legal profession at large is held accountable. Very strange.

15 Oct 04


Commercial materials.

There are a wide variety of commercial outlines, case briefs and supplemental textbooks to attract the law student dollar. At the beginning of the term I though “why would I want extra reading?” but now 9 weeks in, I have caved and bought a few.

The problem is, the main textbook in any class is invariably a casebook. From what I can tell, casebooks have developed an idiomatic and not entirely logical format. Cases, usually from appellate courts, are edited down for length and then the casebook editor adds a section of “notes and questions” on the end. Not much space (if any) is given to explaining the doctrine that the case is about—your best bet is to get a hint from the section heading at the top of each page (“oh right, I’m in Informed Consent ...“)

The other problem with casebooks is they’re, you know, full of cases. What’s good is these are real opinions. What’s bad is the judge was not writing the case for your benefit, law student, so teasing out the signficance sometimes seems like a long drive for a short day at the beach.

Anyhow. The supplements, if nothing else, confirm that you actually are following what’s going on correctly because they just give you the doctrine and the applications, and often—this is very helpful—hypothetical situations to answer questions about. The final exam is going to be full of hypos, not appellate court opinions, that’s for sure.

19 Oct 04


Swing and a miss.

Today I got back a writing assignment from civil procedure that I totally missed the boat on. The funny thing is, in my first draft I answered the question more accurately, and the night before it was due totally rewrote it, thinking I’d found a sneaky trick. Tricky only to me, apparently.

However, if I missed the boat, it left the dock without too many people on it. The professor told the class with characteristic gentleness that it was not our finest hour (perhaps most tellingly, he didn’t bother writing comments on the papers after he got to a certain point in the pile)

Yay for ungraded work!

19 Oct 04



Prof Crim, devout Red Sox fan, was absent with “the flu” yesterday (the day after game 5 went almost 6 hrs) and predicts that he will likewise be absent tomorrow (after game 7 is played tonight). Meanwhile the 2 lectures he managed this week were “mystifying clouds of words”. If the Red Sox go to the world series he might as well take a leave of absence, he’s no use to us in this condition.

Meanwhile I got gossip this morning that a classmate who sits in front of me in Torts has dropped out of law school altogether. There hasn’t even been a graded assignment yet and this guy threw in the towel. I guess if I’d already paid I’d have stuck it out and see how I did on the exams, but ... to each his own.

20 Oct 04


Week 9, the fur flies.

I’ve stumbled into my first significant disagreement with an instructor: a memo assignment pertaining to California law about negligent infliction of emotional distress.

I was born with a gene that gave me a low threshold of pain for illogical reasoning. It gets in my brain and makes me crazy, and I cannot let it go until I conclusively win or lose. I almost don’t care which: while it’s nice to be right, it’s the ambiguity that drives me nuts, and it’s the certainty I want, not the affirmation that I was on the right side.

Generally this has been a positive in my career, but not always. Certainly there are plenty of times I wish I could’ve said “whatever” and moved on (and probably should have) Over time I’ve learned more about how to present ideas with tact and clarity. Also the importance of picking your battles.

In this dispute, I’m quite sure I’m on the right side. Other students agree with me, but—the professor and the teaching assistant do not. On some level I feel I should drop it. Yet it’s a non-trivial issue affecting everyone who takes the course. Hard to know what to do.

23 Oct 04


Fur flies II.

I figured out what to do. Turns out the judge who wrote the opinion in the case which is the source of the below-referenced disagreement is alive & well and working as a legal consultant in San Diego. Dude even has his own website. So I emailed him. We’ll see what happens.

24 Oct 04


even if you don’t hear from him—you’ve proven yourself far more clued into how the real world works than, i would guess, 95 percent of your classmates.

Posted by: Russ Mitchell at October 30, 2004 12:43 PM

Look out Santa Monica Blvd.

Prof Civ Pro (imagine deadpan delivery): “Federal rule 21 is my favorite. Misjoinder and non-joinder. Just because if I ever leave teaching to have a drag queen act, that would be a great name. Miss Joinder.”

Update: Prof Civ Pro informs me he has used the joke for 10 years. I guess we always forget that every professor’s act has been honed by many years of trial & error.

25 Oct 04


Fur flies, the end.

I didn’t hear back from the judge. (though I may still—there are generational differences in how often people check email. I only get my postal mail once a week) The professor ended up agreeing with me on one of the cases in contention. It will not lead to any curricular re-evaluation of the assignment but at least I wasn’t smokin’ dope.

Some days at law school I get caught in the gap between my curiosity about topics and the whole “don’t rock the boat” principle familiar to me and anyone else who has held down a job. I mean, law school is just another work environment, and the people working there have the same motivations—wanna get paid, wanna get a good performance review, wanna get hired back next year.

I myself don’t have anything to lose by making hay out of certain topics, but it doesn’t mean it’s going to rise to a level approximating interest for anyone else. It would be nice to think professors cared about every allegedly brilliant idea students came up with, but what’s in it for them?

It’s another application of the principle I used to call “your emergency is not my emergency” back when I was working. The conundrum is, you can’t do your job (or your studies or whatever) without the help of other people, but you can’t necessarily get them to pay attention either, since whatever is the most important thing to you may rank low on their list.

When I learn about something new, I want to find out all sorts of things about it. But the guy who’s been teaching the first-year course for 22 yrs is maybe not quite as fulfilled by the inquiries as I am.

28 Oct 04


Summer lovin’.

A fair number of fiirst year students seem to have bypassed any anxiety about exams and moved on to anxiety what they will do for work next summer. There are two schools of thought on the issue:

1) since you have completed a whopping one year of law school, you are not tremendously useful to anyone so whatever job you could get is going to be pretty menial, strictly of the resume-padding sort, not of the meaningful learning sort.

2) law firms recruit on-campus during the fall of second year for summer jobs AFTER second year. These are considered important because they tend to lead to offers for jobs after graduation. Thus doing something interesting THIS summer gives you an advantage during interviews next fall.

I tend to believe (1). But that’s mostly because I don’t plan to participate in (2). The law firm recruiting process resembles the baseball draft, where kids coming out of school are put into the minor leagues to see how they perform before they get an offer to join the majors.

To fully buy into (2), you have to sorta believe that what you do the summer after your first year has major consequences for potentially the next 20 years of your professional life. That seems a stretch, doesn’t it.

30 Oct 04


Like the blog. Very true about the resume padding job for the 1L summer. As a socal native living in Michigan, I miss the weather.

Posted by: A at November 1, 2004 01:27 PM

Week 10.

2/3 done with fall semester.

30 Oct 04


Law firms II.

Why will I not participate in on-campus recruiting next fall? I have no interest in working at a big law firm.

This is not a position of idealism. Except for a couple isolated exceptions, every lawyer I’ve met who worked at a big firm I found to be an insufferable idiot. Every lawyer whom I liked and respected (or hired to represent me) has been an independent practitioner or ran their own firm.

As a first-year this position will earn you a mixture of pity and contempt. But I have different motivations for being in law school than many of my classmates, and thus different goals for what I want to do with the degree afterwards.

One major difference is that I already had my “work terrible hours to pay your dues” career experience when I worked in the technology business in the 90s. It was totally worthwhile and totally necessary. I recommend it to all my classmates whose previous work experience may be, shall we say, somewhat light. But having done it once, why would I want to do it again?

Not that I think that because I worked for some years in an unrelated field that should give me some kind of shortcut into the legal field. No, I start at the bottom with everyone else. But the specific costs & specific benefits of working at a large firm do not appeal to me.

NB. A recent insight into big-firm marketing: a second-year student was talking to me about how she had just been flown to New York for a 2nd interview. She was extremely amazed & excited that THEY PAID for her plane ticket & hotel! Woohoo, a free trip! I gently suggested that the trip was not, in the long term, free; she insisted quite firmly that it was. It’s great to be new to the working world, I hear they have free coffee and pencils too.

30 Oct 04

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