One and done

After the end of the first semester, I've decided to retire the blog. I hope you've enjoyed reading, and that you have some greater understanding of how the first semester of law school goes.

As the last post indicates, the grades in law school remain a mystery to me. There are other narratives out there about how shocking it is to receive mediocre grades, and I don't really have any else to add to those. In the context of that disappointment, I find that it's hard to write about law school anymore. I'm not quitting law school itself, and I expect that I'll still have gainful employment at the end of the three years. But right now, it's hard to feel anything positive toward law school after all that hard work yielded such poor results. Blogging about semester #2 just doesn't seem right -- I'm afraid that there would be an aftertaste of bitterness in everything I'd write, which wouldn't be healthy for the writer or interesting for the reader. Plus, as last semester's outcome demonstrates, I obviously need to be spending even more time studying. So the blog is one of the casualties of that reorganization.

It's been a fun experiment for a semester -- thanks for reading!

The post-exam post

I put off writing about the exams for a long time because I didn't want to think about them. And not because I felt terrible about my performances, but because everything about exams and grades is so mysterious that it was stressful just contemplating the work I had just done. Because of the bell curve, my grades will only demonstrate my performance relative to everyone else in my classes, and since I can't possibly know or even reliably guess how well they did... well, you see where this is headed.

Because it's been 17 days since my last exam, and because just this morning I checked the registrar's website and received my first grade, it's time for me to belatedly make a few notes about those exams.

As the last post discussed, time is often in short supply on law school exams. Only two professors gave any guidance on how long our answers should have been, but we were able to get a general sense based on some past student answers that the professors provided us. Surprisingly, the time/word ratio varied considerably in my four exams:

Torts: No specific guidance on length given by the prof. We had four hours and only one question to answer, and because of this, I felt the most comfortable about this exam afterwards. I managed about 3100 words in 4 hours.

Civ Pro: For this 3 1/2 hour exam, the prof gave a maximum word limit of 6000. My pace was terrible, and I got really far behind by the third and final question. I walked out of this exam feeling really bad -- I think my answers to all three questions might have been 2400 words total.

Con Law: Two questions: an open-ended essay question ("What do you think about Constitutional issue x and why?") worth one-third, and an issue-spotter/hypothetical case question worth two-thirds. Three hours. Previous student responses averaged around 1000+ words for question 1 and 2000+ words for question 2. As with the Civ Pro exam, I really fucked up my pace on this exam and had to write really fast at the end. I wrote the issue-spotter first, and felt pretty good about my answer (circa 2300 words), but did not feel good about my 450-word response to the essay question.

Contracts: Three questions, 3 hours and 20 minutes. The best part was the word limit: Prof. Tambor suggested "about 500 words" per response. However, it wasn't as easy as that might suggest, because the facts were pretty detailed for all three hypotheticals and it's harder to process three distinct questions of contract law back-to-back-to-back than for another topic, because contract law has so many different elements that it can seem like completely different subjects, at times.

In any case, I felt OK about the Contracts exam afterwards, but still a bit rushed. Needless to say, I did not proofread or revise in any of my exams: there's no time to do that.

Predictions:
With the above caviats about the impossibility of predicting one's exam results, here are my best guesses. I've used three separate categories for analyzing how well I did in the class: My general feeling of how well I knew the material during the semester; my analysis of how well I prepared; and my feeling a couple hours after the exam. (I made these predictions before knowing the grades; since then, I've added the actual grades in bold, and left the predictions unchanged.)

TORTS: During semester: 7/10; Quality of exam prep: 7/10; Post-exam feeling: 8-9/10.
Best guess for my grade: A-, A, or B+. I would be really pissed with a low grade in this class, because I feel like I demonstrated that I knew the material really well. If this grade is bad, I'd feel really discouraged about the prospect of ever getting good grades.
That last sentence presciently sums it up. Actual final grade: C+

CIV PRO: During semester: 5/10; Quality of exam prep: 8/10; Post-exam feeling: 4/10.
Best guess for my grade: B-, B, maybe B+ if I'm lucky. This was a bad exam experience -- I feel like I know the material (and that I knew it on exam day), but my answer to the third question was really rushed. Best case scenario is that my first two answers were first-rate, and that the third one doesn't pull me down too far. But if I had to bet on my worst grade, this would be it.
Actual final grade: C

CON LAW: During semester: 5/10; Quality of exam prep: 5/10; Post-exam feeling: 6/10.
Best guess for my grade: B/B+. I wouldn't be shocked by an A-, because I felt like my issue-spotter answer was really good. But my essay was rushed and didn't really have a conclusion, and I'd be surprised if that third of the grade was higher than B-, and possibly lower. In all honestly, B or B+ would both be fair grades for my performance in the class. I suspect that a lot of the students had learned Supreme Court cases in detail in poly-sci or pre-law classes already, and although I felt comfortable with my level of knowledge in the class, I knew from class discussion that there were a lot of students who knew the New Deal cases like the backs of their hands.
Actual final grade: C+

Lawyering: No exam, just our memos (20% and 70%) and class participation (10%). I'd be disappointed with anything less than A- in this class. I know that I got 20/20 on the first memo, and have no reason to suspect that I didn't earn all 10 points for participation. As with Torts, if I got a bad grade here, I'd be really discouraged.
Actual final grade: B

Finally, I logged onto the registrar's website to discover -- to my surprise -- that my grade for Contracts is in, and that it is A-. Because Contracts was my last exam of the semester, I didn't think about it afterwards like I did for the other three, and so I didn't write down any formal predictions. I'm definitely pleasantly surprised with the A-: I probably would have guessed B+, B, and A-, in that order. We have been given a lot of conflicting information about when grades will be available, but the consensus seems to be that they will trickle in over the next three weeks, and that at the beginning of February we will get a class ranking. (Which will be somewhat less dramatic, because the curved grades for each class ensures that everyone has at least a general understanding of his/her position in relation to everyone else.)

First semester GPA: 2.687, which is almost exactly a B-minus average.

Ready...set...write!

An objective professional journalist would have a lot to report during the time of law school exams. However, the blogger in the midst of exam preparation has little time to report, or to do much of anything besides study. As a brief respite from studying, I will spend a little while describing what's going on right now.

A standard law school exam is comprised of approximately 1-3 essay questions over the course of 3-4 hours. Although books on law school seemed to indicate that exams were almost always open-book/open-note, three of my four exams are closed-book/no-notes. Almost everyone takes the exam on a laptop, using software that disables all functions except the exam software -- essentially turning the computer into a bare-bones word processor. And then you type like crazy in response to the questions.

The questions are based on "fact patterns" -- hypothetical scenarios that raise issues of law that the students are supposed to identify and respond to. These scenarios get pretty elaborate and wacky because they're supposed to encompass everything (or almost everything) we've learned in the course. So in a torts problem, Person A will be assaulted and battered by Person B, who will slip and fall on icy steps, and will be a victim of medical malpractice at the hospital, and will then be subjected to harassment by Person A while recovering at home. And we have to analyze (argue the rules of) those claims.

I've seen several practice questions and although the torts problems seem relatively straightforward (though not to say "easy"), the fact patterns for Civil Procedure are often extremely complicated. For me, it is much easier to picture a series of car crashes, broken arms, and shouting matches than it is to imagine corporations in four different states with varying claims about a non-compete clause. It's obviously important to understand the more abstract and intangible concepts that make the world function, but it is not always easy to process them in a limited amount of time. But that's what we have to do.

How much time do we get to think about each question? There are no specific rules, and there is no minimum word-count, but I'm worried by the examples I've seen. A couple of the teachers have provided past exams and samples of "good answers." For a two-question exam in Con Law, one "good answer" was 4000 words; the other was 5000. Our Civ Pro teacher gave us a maximum word limit of 6000. Who are these people that write 6000 words in three hours (500 words every fifteen minutes!)? It would be hard to write a free-associative blog post at that pace, much less an exam about highly technical material that I've memorized and applied to a brand new and intentionally tricky fact pattern. I know -- as a former writing teacher -- that it's not the quantity that counts, but I also know that a teacher is at least subconsciously impressed by a student who can demonstrate a thorough grasp of detail, even when that detail is not completely on point.

There's much more to say, but no time to say it. The word count of this post is 542 words, and it took 30 minutes to write. Can I do that ten times in three hours? I'll tell you after December 20.

What happens in law school weeks 9-12

Obviously you stop blogging and, with few exceptions, communicating with the outside world. Here are some things that I have been doing:

1. Revising my first memo and writing my second (and final) memo for my Legal Research and Writing class. (If you've been following the story so far, this class has the nondescript and awkward title "Lawyering" at my school.)

The memos are the most practical assignments of the first year. In each, I was assigned a hypothetical case for which I had been given a brief summary of facts by my hypothetical boss at my firm. In Memo #1, a client who is a regional manager at a local paper-clip company had some employees who were making fun of him at work. One of them created a MySpace page mocking the boss, and he found out who did it. Because he'd been emotionally traumatized by the situation, he wanted to know if he could sue his employee for Intentional Infliction of Emotional Distress (a tort).

So we had to research Kentucky cases in which this had come up and write a 9-page memo summarizing the important findings and answering the client's question. My answer was NO, that he did not have a cause of action, but some people went the other way. I should pause here to say that, although in one sense the idea that this assignment has "no right or wrong answer" reminds me of humanities graduate school a lot, the kind of analyses that you can perform in law school are not nearly as broad as they are in that field. Although it seems that almost any kind of well-researched response to a theme in Oliver Twist might yield a good grade on a seminar paper, law school is very different. Memo format is very rigid, much more than an article in a typical journal of literary criticism. After tracking down a bunch of relevant cases, you formulate a rule of law that seems to apply to your set of facts, and then compare the facts to each element of that rule. But you have to have a specific rule that can be stated concisely and that breaks down into easily-numbered elements before you begin analyzing your case. The end product is not necessarily the most thought-provoking inquiry into the philosophy of law, but it is (when done well) clear, direct, and comprehensible to the lay person and the legal specialist. Not the easiest task.

Our teacher helped us a lot with Memo #1, which was worth 20% of our grade. We talked about the cases during class time, shared the research -- i.e., although we went out and found the cases ourselves, she gave us a list of the ones to use after the fact, so no one could have been totally off track before sitting down to write. I guess they could have been off track, but it would have been impossible to be looking at the wrong cases.

The training wheels were off for Memo #2, and we did almost everything ourselves. And so even two days after turning it in, everyone is still nervous, because what if I missed a case that was really important and my analysis was totally wrong...? I feel pretty confident that I did well, but won't know for quite some time. Again, it's a different feeling than a seminar paper: if I wrote about a novel and overlooked the fact that the foremost scholar in the field had written an article that completely contradicted my thesis, the professor might mention that in the her comments, but probably wouldn't hold it against me. But if I missed the most important case that pertained to the fact pattern in my memo, it would not be a good thing.

And Memo #2 is worth 70% of the semester grade.

2. Reviewing for final exams (which are all worth 100% of the semester grade!) is tough, especially when the workload hasn't really slowed down for any of the classes. Although I did some reviewing during our fall break, I haven't done much since. And, as with school at all levels, you tend to get bored listening to the same lecturer for 12 consecutive weeks, and you kind of know their personalities well enough that you feel like you can get by with reading less... and so you do.

3. I've also been on a committee that interviews the prospective new faculty members when they come to visit, so that has sucked up a few free afternoons. It's been interesting though. Because I have some experience with academia, I think that I know how to read résumés and talk about scholarship with the candidates a little bit better than the other law students. Yesterday I interviewed a guy who got his B.A. in 2000, making him approximately one year older than me, except that he's wearing fancy brown wing-tips and graduated second in his class at Harvard, and I'm at modestly-ranked midwestern Law School and wearing Sambas and carrying a backpack. Sigh.

The interviews are one area in which I do feel an advantage over the rest of the law students, although unfortunately shop-talk about critical theory doesn't help my GPA. I like going to office hours and talking with the faculty outside of the classroom context -- and, as most teachers know, no one ever seems to come to office hours, so they always seem kind of cheery and pleasantly surprised by visitors.

4. Somehow, in all of my free time, I am supposed to have begun soliciting jobs already! The American Bar Assocation, in its boundless goodwill toward first-year law students, has instituted a national policy that the job hunt is not allowed to begin until... drum roll... November 1. They actually let us finish 5% of our legal education before we have to start the job search! It's a total crime. For many reasons, but especially this one: the job that you get is so closely tied to your grades that it's totally bogus for us to be burdened with hunting for jobs so soon. If you are in the top 10% of your class, you will probably never even consider a job that the 5oth percentile will gladly accept, and vice versa; the employers of the top 10% aren't returning phone calls from the middle of the pack.

And we won't receive grades until 4-6 weeks after final exams, which surely means that a large percentage of the job-hunting that one does before that time is time wasted, which, as M. Proust reminds us, cannot be regained.

Civil Procedure review

Seven weeks left in the semester. It's all about those exams on December 12, 14, 17, and 20 -- not that I'm counting the days. Because law school grades are exclusively derived from those blind, bell-curved exam scores, the pressure is only going to increase from here until December.

My law school is on "fall break" all week, which allows 2Ls and 3Ls some time to travel for interviews, and for 1Ls to exhale for the first time, or to start studying for those final exams, hoping to be one of the lucky (talented?) 10% who can receive As. After taking the weekend to deal with a lot of personal financial affairs that had been pushed to the back burner by the first eight weeks of law school, today I'm beginning the systematic review of my four main classes. (There's no exam for my "Lawyering" class, but as discussed previously on this blog, the other four are formally identical.)

Civil Procedure began with the study of jurisdiction... and eight weeks later, we're still on jurisdiction. Civ Pro Prof is in his first year of teaching, and I wonder how much of the semester is going according to plans. This is the only class that meets only twice a week -- though its two 75-minute classes and Con Law's three 50-minute periods are the same length overall -- and we've met far less frequently than the others. The count: Contracts = 22 meetings; Torts = 23; Con Law = 22; Civ Pro = 12. So I wonder whether or not we are behind most other Civ Pro classes, or whether the study of jurisdiction is an endless loop.

We've studied two main types of jurisdiction so far: Personal Jurisdiction and Subject Matter Jurisdiction. Personal jurisdiction concerns questions about whether a person can be responsible for defending a lawsuit in a given state. There are three types of personal jurisdiction: in personam, or jurisdiction over one person in his/her bodily form; in rem, or jurisdiction over a specific thing -- real estate or other personal property; and quasi in rem, which is a category between in personam and in rem.

Examples of these three categories:
1) A, a resident of Arizona, lends money to C, a resident of California. C fails to repay the money according to the contract and so A wants to sue C. If C is a California homebody who just sits around and surfs in San Diego 365 days a year, then C is only subject to jurisdiction in California -- A couldn't claim that C would have to adhere to judgments of the state of Arizona. A would have to go to California and sue C in California courts; C is only subject to in personam jurisdiction there.

But if C leaves California and goes to pick up a new wet suit on First Avenue in Tucson, and A finds out that C is in town, A can serve C with papers for a suit in Arizona. If you go to a state willingly, then you're submitting yourself to in personam jurisdiction there (you have a bodily presence in the forum state). Even if C flies on a plane from San Diego to Houston, if A could somehow serve C in the airspace above Arizona, that would count as C's presence in Arizona. (But not if, say, C wipes out while surfing, breaks his neck, and is taken to a trauma center in Phoenix while he's unconscious. Presence has to be voluntary.)

2) To illustrate the difference between in personam and in rem, assume that C is still a California surfer who never leaves San Diego, but that he also owns a yacht docked on the Tucson River. C sells the yacht to A, but the contract is disputed and C refuses to deliver the keys to the ship to A. A wants to sue C to get the ship.

This is where in res comes in. Although C is still not subject to personal jurisdiction in Arizona, the object of the dispute is in Arizona, and so A can sue C in Arizona courts. Technically, the basis of the suit would be the yacht -- not necessarily A himself -- and under in res rules, the "thing" itself is subject to Arizona jurisdiction.

3) Quasi in rem jurisdiction applies if the suit isn't related to the object in question. Say that C is the same surfer who never leaves California. C owns a run-down tugboat docked on the Tucson River. But this time the dispute has nothing to do with the boat -- A lends $500,000 to C, C doesn't honor the contract, and A wants to sue to recover the $500,000. A is allowed to sue C in Arizona court because C owns property in Arizona. But the suit can only recover the Arizona property itself. Let's say that C doesn't show up, or is represented at trial but he loses. The state of Arizona could seize the tugboat and give it or the proceeds to A. But if the tugboat is only worth $20,000, then A only gets $20,000 -- A would not get the tugboat PLUS an enforceable judgment for C to pay A the remaining $480,000 difference under quasi in rem jurisdiction.

The next topic has is primarily about products liability cases: how does jurisdiction apply to corporations that sell products in many states? K, a Kansas resident, buys a pair of Nike sneakers at Foot Locker in Lawrence. During his first jog the soles fall off and he falls and breaks his wrist. Clearly Nike has made some defective shoes, but K bought them at an independent retailer in Kansas (and we'll assume that Nike doesn't have any factories or retail locations in Kansas -- assume it's just an Oregon company that ships its products from Oregon to out-of-state retailers). But it would be extremely impractical for K to sue in Oregon -- he wants to sue in Kansas. Can he? Let's say that K hacks Nike's computer system and distributes intellectual property about Nike's sneaker tests on K's blog (hosted by a server and ISP in Lawrence). Could Nike sue K in Oregon?

The key term of art for making these legal determinations is known as "minimum contacts." A plaintiff has to establish that the defendant has made minimum contacts with the forum state. Because we all know that Nike advertises everywhere, has a huge percentage of the national market share for sneakers, sponsors KU basketball, and so on, it does have the minimum contacts necessary to submit it to Kansas jurisdiction on an injury that happens in Kansas. But where's the limit to minimum contacts? For companies smaller than Nike, it could be a real problem if they had to defend themselves against suits anywhere that their products may end up. The minimum contacts test is probably getting more outdated as the country and the world become more closely integrated, but in a country as big as the US, it still makes a difference for smaller businesses or individuals, when the expenses of travel and accommodation in a distant state might be prohibitively expensive.

We read one real case involving an airplane crash in Scotland. Everyone on board was Scottish, the crew were all Scottish, the airline was Scottish, but the plane itself was made by a Pennsylvania company and sold to Thistle Airways. Because American tort laws are more inclusive (more plaintiff-friendly) than in Scotland, the estates of the deceased wanted to sue in American courts. Though there may be minimum contacts connecting the American manufacturer to Scotland -- it sells airplanes to clients there -- courts send jurisdiction to the forum that it finds to be most appropriate. In this case, the attempt to litigate in the US was clearly not as appropriate as the place containing all the evidence, and the home of the main corporation and all the decedents.

Now we're studying jurisdiction over subject matter, which involves questions about state issues that may get bumped up to federal court for various reasons. The first such reason would be diversity -- i.e., when there are multiple defendants from different states in the same case. M, from Maryland, buys a defective guitar. The guitar's body was manufacturer by a N, a New Jersey company; the neck and strings were assembled by I, an Illinois company. The constitution allows for federal courts to decide the case -- even if the case is not about a federal rule -- due to the diversity of the parties.

I'm looking forward to studying the more minute details of these concepts during the rest of the afternoon. Tomorrow: contracts.

If Clarence Thomas buys a book to teach himself to read, is that "commerce"?

Everyone should know more about Clarence Thomas than just that he's a pervy dork, which the Anita Hill hearings should have made quite obvious. Before law school, I knew only a little about him:
1. that he votes conservative on almost all issues except ones about porn (you can probably guess why that is)
2. that he almost never talks -- every description of his role in Supreme Court cases mentions that it is really awkward that the other eight justices can converse like intelligent adults and the weird leery justice just sits there
3. everything from the confirmation hearings (e.g., the Coke can pubic hair)
4. that his cultural tastes are really odd for a black person or for a Supreme Court justice -- he drives around in an RV all summer, going to NASCAR and sleeping in Wal-Mart parking lots (really!)

Anyway, I knew he was weird and suspected he was slightly dumb; despite what he says (and probably even thinks), he is only where he is right now because of affirmative action. But the truth of his opinions is so much worse than that! He's currently on a media blitz promoting his new memoir: you may have seen him on 60 Minutes or other news shows, or breaking his silence for a 90-minute interview on Rush Limbaugh. (Again, I am not kidding. He even presided over Rush Limbaugh's wedding ceremony.) Talking with people like Limbaugh is just not the kind of thing that Supreme Court justices are supposed to do! The other justices tend to do things like participating in international conferences on jurisprudence at the Sorbonne. This tendency is not characteristic of either side of the Court's spectrum: Scalia, Kennedy, Breyer -- all are engaged in serious intellectual debates and scholarship outside of the court. Clarence Thomas listens to Rush Limbaugh.

We've been reading about the history of interpreting the Commerce Clause (part of Article 1, Section 8 of the Constitution), which gives Congress the power to pass laws regulating interstate commerce. During and after the Great Depression, Congress naturally wanted to pass new regulatory and labor laws due to the fact that commerce had been totally dysfunctional. Without getting into the whole debate, it's important to know that the Supreme Court went along with granting Congress the power to pass laws regulating a lot of commercial activity even if that activity took place entirely within the borders of a single state (under the theory that the national market would be affected by the actions of a single state), or if that activity is not strictly "commercial" but that it affects commerce. A good example of the latter would be certain civil rights laws prohibiting a restaurant like Whitey's Hamburgers in Charleston, S.C. from refusing to serve black customers. The reasoning is that Congress can make this South Carolina restaurant follow a federal law (because you know the S.C. politicians would never do anything about it) because discriminatory policies hurt nationwide commerce. If any restaurant could discriminate, that would seriously hurt the opportunities for any black people to go out and spend money on food. ["Whitey's" is a hypothetical case based on similar real ones.]

So, to relate this to Clarence Thomas in the 1990s: a 1995 Supreme Court ruling struck down a 1990 federal law that made it a crime to carry a gun on school property. The law tried to use the Commerce Clause to justify its authority, saying that unsafe schools would adversely affect interstate commerce -- gun violence leads to bad schools which leads to a malfunctioning economy. This argument lost, and the law was deemed unconstitutional by a 5-4 vote.

Clarence Thomas voted in the majority on this case (United States v. Lopez). What's scary about his vote here and on many other cases is that he tries to define a term like "commerce" in a decontextualized vacuum that essentially makes the use of the word so limited that Congress's power to use the clause is extremely tiny. Thomas writes something like this: "Commerce" was sometimes used distinctly from "manufacturing" and "agriculture." So "commerce" must be different from anything related to manufacturing. The Commerce Clause would give Congress the power to regulate the trade of an item across state lines... and that's essentially it.

So when the framers and the ratifying conventions put in this clause, what does Clarence Thomas think that they were thinking? Of course if he'd actually read what they were thinking, from reports of the constitutional conventions, he'd have known that the late 18th-century American economy was totally tanking because, in part, the states had no coherent economic policy, and so the smart framers wanted for Congress to manage commerce in a way that no single self-interested state legislature could. But Thomas seems content to cherry-pick some quotes that suggest that ONE meaning of "commerce" was distinct from "manufacturing," limiting commerce to the actual sale of goods across state lines. His definition of "commerce" naturally means that Congress can't regulate much of anything, giving us the unregulated nightmare of the Great Depression or the privatized, no-bid, unregulated commerce of Halliburtons and Blackwaters.

The only silver lining is that even Justice Scalia recognizes that CT is the epitome of the activist judiciary against which conservatives have so frequently complained. CT's "opinions" don't recognize judicial precedent -- he simply claims a power to read the mind of a random Founding Father who would, CT says, never have let Congress do almost anything, but would have let the executive have free reign. At least CT is smart enough to do the bidding of the Bushies who have given him everything he has -- his jobs, his RV, his cans of Coke. He's become the perfect "injured" conservative because of the confirmation hearings -- thinking that the country is taking his way of life away from him despite the obvious political and economic domination of this country by the right for the last 27 years.

If only Clarence could speak up when the Court is in session about some of his kooky ideas about the Constitution, then the other Justices could tell him that he's totally fucked up just like Anita Hill did when he started talking about zoophilia. My idea would be to pass the Jackie Treehorn Act: use the Commerce Clause to protect the adult film industry, and then see what CT thinks. Justice Thomas forgets that the brain is the biggest erogenous zone...

Molto Depresso

http://online.wsj.com/article/SB119040786780835602.html

Robots

The flip side of the last post is to talk about how the students respond to the professors' questions. My estimate is that 90% of the time, students do not respond very well.

It seems as though almost everyone in law school has read the material before coming to class. Not only that, but many students have written up detailed briefs on each case; sometimes a paragraph or two, sometimes an entire page. (I know this because I can see their laptops open right in front of me, usually opened to a brief in a Word document, though frequently they're on Facebook or CNN headlines or random Dashboard widgets. One woman who sits in front of me particularly enjoys a Dashboard program that is apparently just a red rubber ball that you can click, drag, and toss across the screen.)

There are several ways to get grilled by your law school professor, including but not limited to:
1. Mr. McGregor, did you get a chance to read International Shoe v. Washington ? Can you tell us what happened? (Translation: I'm going to test to be sure that you read the assignment very closely.)

2. Mr. McGregor, what do you think about Justice Breyer's dissent in this case? (You'd better understand the opinion writer's critical thinking and be able to say why you think it does or does not work.)

3. Ms. Johansson, what do you think of Mr. McGregor's explanation? (Were you prepared for Question #2? Please address it and your classmate's answer to it.)

4. If the court were to rule on an act of Congress that banned partial-birth abortion, how would its ruling be impacted by the decision on medicinal marijuana in U.S. v. Raich? (Although this question is harder and has higher stakes -- and is more like what the exam will be testing -- it's easier to answer in class, because (a) there's more room for you to have your own reasoning than in #1-3, and (b) good answers to #1-3 have already been set forth by the professor and/or other students, so you have a foundation of answers on which to draw, even if you would have been clueless to answer such a question at the beginning of the discussion.)

Students say all sorts of weird things to any type of question, but what bothers me the most is when they rely too easily on their brief when answering question #1 and variations on question #1. They don't know anything about how to tell a story! A few posts back, I wrote about how the regurgitation of the case facts can get into way too much detail. After a few weeks, the professors (even Prof. Tambor) aren't as demanding about this. They naturally expect that you're going to leave some facts out when you retell the story; otherwise, why not just read the whole thing aloud in class? But this is essentially what so many students do! Even if the professor gives a specific prompt to cut to the chase, they'll ignore it!

Example:
Professor: Mr. HAL 9000, what was the dispute in Greiner v. Greiner?
HAL 9000: Peter Greiner died and, um, left a widow. He disinherited three sons and one daughter. One of the sons died. His widow, who had been favored in the will, took active measures to, um, land to two of the sons... [Hal talks nervously for the next 2 minutes, as he basically recites all of the facts of the case, while somehow managing to insert even more passive voice than the opinion writer himself had used.]

The question was: What was the dispute? The answer should begin with the words, "The dispute was about x"! If you need to backtrack to fill in the gaps, fine, but the students willfully or unconsciously -- due to nerves and a lack of public speaking skill -- resort to burying the focus of the original question under a mountain of detail. However specific the professor's question may be, the large majority of the students only want to hear: Please read me your brief of this case, and pause to say "um" at every punctuation mark.

Being prepared to give good explanations is difficult. In each class, there have been several cases for which I'm glad I wasn't in the hot seat. But reading from your brief doesn't make engaging conversation, and it hardly encourages everyone to pay attention. More importantly, it doesn't teach you how to argue. I'm selfishly happy that a lot of these smart students seem so bad at cutting to the chase, because I know that I'll be scoring points against them on exams while they're obfuscating their answers. Listening to some of these kids try to explain themselves makes clear the problem with the large-lecture model of the undergraduate university: I wonder how many of them ever had to talk in class before. You can tell that they know how to read and think (almost without exception, my law school classmates would be in the top 5% of my former students at Big Ten U. English Department), but a good 75% of those smart students are very unskilled at the Socratic method.

Next question?

Law school professors are not necessarily skilled at moderating questions from the students. Nuclear Prof. is especially bad at this. Not all questions are equally worthy of elaborate answers, and students who've developed habits of asking unimportant hypothetical questions don't need to be called on at the same frequency as other members of the class. One student in the front row of our 80-person class raises his hand with a boring hypothetical question (and sometimes it's not even clear what the question is) about almost every case. Or he'll ask about the rationale behind the law -- "I don't think that is fair because of such and such... don't you think so?"

And Nuclear Prof. constantly calls on him! (He does the same thing in Con Law -- and probably every class, for that matter, but I only see him in these two -- and gets called on slightly less frequently.) Yesterday the topic in Torts was "duty of reasonable care" in negligence cases. The principle is pretty straightforward: if you're a business owner, you have to provide for the safety of your products and services in a way that a reasonable person in a similar circumstance would. If you're the only employee watching over a barge that's docked in the harbor, and you go on a bender and leave the barge unattended for 19 hours, and it gets rammed by the tugboat and sinks and dumps all of the flour onboard into the river, then you've acted unreasonably. If you were on watch and uncontrollable gale-force winds blew the tug into the barge, and you pumped and pumped water as quickly as you could and still couldn't keep the barge from sinking while providing for your own safety, then that's reasonable. To draw that line of reasonableness might be more difficult given different hypos (what if he left it alone for a half an hour to get some lunch? what about two hours? and so on...), but these hypothetical are infinite! And it follows that the class time we could spend answering them is also infinite!

(Hypos are absolutely important in discussing the law, don't get me wrong. But hypos can be useful when they ask you to juggle two or three or more principles that may come into conflict; they are not useful when you're just making speculations on one principle over and over and over again. For example: a bus driver is driving schoolkids near a bend in the road that overlooks a cliff. A car veers over the center line and is headed directly for the bus. On the left side of the road are two children waiting for the bus; on the right side, it's the cliff. What should the bus driver do? Hit the car (and risk injuring the kids on the bus), swerve left (saving the kids on the bus but almost certainly killing the other two kids), or swerve right (and off the cliff). The hypothetical is pedagogically useful because it asks us to weigh different elements of liability: to hit the kids by the side of the road would be intentional, even if it would cause the least harm. To stay in the proper lane and hit the oncoming car would abide by the laws of the road, but would be the option that guarantees injury to multiple parties. To head off the cliff would certainly save everyone not on the bus, but it could be the most hazardous for everyone who is on the bus. My point is that there are hypos that can put one's understanding of various aspects of laws into practice, and then there are hypos that just try to classify random behaviors on one side of a particular line.)

The point of every case in our casebook is to provide some specific guidance towards establishing "black letter law" -- i.e., the standard elements that we can rely on when making a rule. Torts is the most straightforward class of the four classes in defining black letter law: there are a finite number of intentional torts, and each of which has a finite number of characteristics that have to be present. A case might be difficult, but the structural principles on which a case is decided are not. I don't really care whether front-row questioner understands this, but I do care that Nuclear Prof. indulges his misunderstanding by wasting all of our class time on his questions. I think it took me about two days of teaching to realize that there are students who are going to ask questions off point, and that the way to deal with those students is by spending less time (or no time) answering those questions. My law professors, to varying degrees, are not so good at this.

Civ Pro and Con Law

I'll introduce the final three classes today: Lawyering I, Constitutional Law I, and Civil Procedure I. If you've studied Latin, you may have guessed that these classes all form the first part of a sequence; I'll finish the sequence by taking the second part of each in the spring, along with new exciting classes such as "Property" to fill the void left after finishing Torts and Contracts.

LAWYERING is the class that's the most unlike other law school classes, but it's the class that's the most like the actual practice of being a lawyer. In Lawyering, we don't have to read very much -- and I've been skipping most of what we've been assigned -- but we do have actual assignments beyond reading. We have to go to the library, learn some library-science-ish approaches to identifying keywords for looking up cases in case indexes, learn what all the different symbols mean in a citation (such as: 31 C.F.R. § 515.329 (2005), with lots of additional superscripts and symbols that I don't yet know how to reproduce on my own keyboard), which states' cases are listed in which case reporters' volumes, and lots of little but necessary technical information. We've been given a hypothetical case for which we need to look up and summarize a number of different cases which might be useful, and then look up the times that those cases have been cross-referenced, and then look up and read and (I know this is coming) summarize those too.

There's more tangible work to be done in this class, but it's more laid-back. No one comes to class in fear that the professor will ask you which states are in the Southwest Reporter. It's a good change of pace.

CIVIL PROCEDURE is the class that focuses on minute technicalities of the law. The first topic of the semester is "personal jurisdiction," which is about which state hears a case when the parties involved are from different states, or when one is a corporation that may have a headquarters in one state but transacts business in others. Our first case of the semester, Pennoyer v. Neff, involves an Oregon lawyer who did some legal work for a California settler who wanted to apply for a federal discount on available land in Oregon. California guy goes back to California without paying his legal fees, and Oregon lawyer sues him to recover the balance of the bill. The problem is that Oregon lawyer doesn't know California settler's address, so he just takes out an ad in the local Portland Oregonian to serve notice. As you can guess, California dude doesn't see the notice (he's also illiterate, but I'm trying to simplify the case by leaving out some additional important details). So CA dude doesn't show up to court, and OR lawyer wins judgment by default. The default judgment allows the state of Oregon to confiscate CA dude's land and give it to OR lawyer. When CA dude eventually reappears in OR, he's pissed about this and sues to get his land back. And the question is: did the Oregon court have the right to jurisdiction over a California resident? And even if so, what constitutes appropriate notice?

These kind of complicated scenarios get asked over and over again: what about a St. Louis shoe company that has independent salesmen selling its products in Seattle -- does the company have to pay Washington state employment taxes? When a New York couple buys an Audi at their local dealership that bursts into flames in Oklahoma in the middle of their move to Arizona, where can they sue? (The question of where it's most advantageous to sue is usually easy, which is why so much is at stake with jurisdictional questions.)

Civ Pro Prof. is a new professor -- he still lives two hours away, and his syllabus changes every day, so I don't really know what we're studying after personal jurisdiction. He's nice, slightly nervous, unintimidating; stocky build, light brown skin, nice navy-blue suits. Kind of looks and talks like Jared the Subway guy. He's told us less of his biography than most professors, so I'm not sure exactly what kind of expertise prepares one to teach Civ Pro. I think that it means that you've specialized in federal cases (of what, I'm not sure) and so you're familiar with those rules more than individual state cases or statutes. More to come about this class.

CONSTITUTIONAL LAW has a lot of familiar elements from U.S. history: the Federalist Papers (and their vertically-challenged authors, Jemmy Madison and Alexander Hamilton), the Articles of Confederation, ratifying conventions, and the articles and amendments of the big C itself. We're reading fewer cases in this class and talking more about the contexts in which those cases were decided, and the precedents that they set. For example, most Americans -- at least the ones who read even the most ordinary newspaper or watch Katie Couric's evening news -- probably know that the U.S. Supreme Court can smite down unconstitutional laws. But it's not as if all of our contemporary constitutional law is explicitly written into the Constitution. It gives some guidelines, and the Supremes themselves interpreted those words, and a couple hundred years later, we have a set of tested, semi-reliable practices.

Con Law I is about the structure of the government and how power is distributed within it; Con Law II is supposed to be more about individual freedom. The professor is a dryly funny guy who's written briefs in the Guantanamo detainees cases (info that he didn't tell us, but I googled him), so it's easy to make the comparisons between the separation of powers in the era of G.W. and Jemmy and the current G.W. and Cheney. It's the most historical of any of my classes -- and more connected to what I've been doing for the past five years -- but remains a fun class.

That's the expository material; now hopefully these characters and plotlines will develop throughout the semester...

Nuclear Prof. and Prof. Tambor

Every 1L at my law school has the same five classes, which have titles ranging from the straightforward ("Contracts," "Constitutional Law") to the specific-if-not-yet-part-of-the-nonlawyer's-everyday-vocabulary ("Torts") to the obscure ("Civil Procedure") to the completely vague ("Lawyering"). Each class has now met multiple times, and here's a quick description of what they're about:

CONTRACTS is about how you get legally bound to someone else when you agree with them on something. Most contracts are straightforward and everybody is in agreement: you do x and I'll pay you y. But the ones that get litigated are the ones in the casebook, and those are full of conflicting and often confusing claims: if I make an offer to the public, can I revoke it? What defines acceptance of the offer? What kinds of things are considered to be binding even when they're not explicitly written down?

My Contracts teacher is the one who seems like a movie version of a law school teacher. A fat man with nice suits (although the tailoring is quite generous, given his size), a gray beard, a booming, oratorical voice, and a tendency to laugh at his own jokes, somewhat like Jeffrey Tambor on The Larry Sanders Show. (And he is a dead ringer for him too, especially Tambor with a beard!) He loves the Socratic method -- which every teacher uses, but none of my five teachers are as single-minded in the answer they want to hear. His questions feel disingenuous because he'll abruptly cut off anyone with "Not what I'm looking for!" when it's not what he was looking for. Now I do like a teacher's willingness to shut down unfocused responses when the class period is lacking clarity, but Prof. Tambor goes too far. It's boring to sit through his open-ended questions when he's only ready to accept one answer.

TORTS are defined as civil wrongs -- sometimes as "civil wrongs for which there is a legal remedy." If I can sue you for something you've done and am able to collect damages for it, then you've committed a tort against me. My Torts professor, a tall 45ish woman with long brown hair and a headband, has admitted to us that she's spent most of her career defending tort cases for nuclear power companies, health insurers, and Big Tobacco. She is always polite in class and doesn't question students too aggressively -- though again, keep in mind that every class is Socratic, and every teacher is going to randomly call on one or more students in every class. But Nuclear Prof., despite her politeness, strikes me as a genuine sociopath. (Which she should know, given that she is the director of a law and psychiatry clinic here.) She has a very casual, flippant way of joking about liability in cases in which people die or are seriously harmed (and just not in a tortuous way of harm, in which being pushed against a wall by the junior high bully can be a harm that receives a monetary remedy, but in the layman's use of the word harm: being shot, hit by a car, etc.). It's kind of shocking to hear her laugh at these situations. I know that a torts lawyer needs to be able to work on such cases relatively objectively, but I don't think that macabre jokes need to be part of that objectivity.

Nuclear Prof. has also rearranged our schedule without our consultation or approval. We have a bunch of "rescheduled" meetings for the late afternoon when our class is normally scheduled for 10:00... and some are scheduled on different days entirely, which imbalances the reading load for all of our other classes. Still, Torts law is relatively straightforward compared to some of the other topics, so the class hasn't seemed too tricky so far. With torts, it's usually pretty easy to get a mental picture of the events, unlike, say, getting a mental picture of the Judiciary Act of 1789, and the situations in which the U.S. Supreme Court has original and appellate and original-but-not-exclusive jurisdiction. More about that class next time...

Procedure

One of my five classes is called "Procedure" ("Civil Procedure," officially), but this post is more specifically about how a class period proceeds on a typical day -- based, of course, on my potentially unrepresentative sample of the first four days of my 1L year. (1L, 2L, and 3L being the identifying years of your time in law school.)

The first thing to know is that your reading responsibilities begin before the first day of class. It is understood that every class will be discussing the content of the course on the very first day, and that you have completed a typical chunk of reading for that day, and that you are ready to be called on in class to discuss it. The professor won't be handing out a syllabus, because you've already looked up the course on the law school website and printed it out, along with any "handouts" (inappropriately titled, given that no one's handing them to you). There are no icebreakers, no calling of roll, and there's not much of an overview or introduction from the professor to speak of. One professor was calling on students within 10 minutes of the beginning of the first class period.

So how does this work, exactly? It's hard to imagine that a class such as "Frankfurt School Aesthetics," or "Advanced Biochemistry and Enzymology" could work so efficiently that barely any introduction would be necessary before diving into the content of the course. But for the most part, this approach seems to work in law school for a very simple reason: it's all about the cases. For the most part, each aspect of the law on a given topic is going to be illustrated by individual cases, with only a minimal amount of contextualizing material. To determine what the case means is my job, and I'm limited in my search for meaning by the evidence cited within that case. In my Contracts class, for example, we began with a case called Ray v. William G. Eurice & Bros., Inc., which happened in Baltimore between 1950-1952. The condensed version of the case is this: the plaintiff, Ray, contracted with the Eurice Bros. to build a new house. As is the case with construction projects, the plans were revised back and forth by each party a couple of times, and then the deal was signed. The problem is that the Eurice brothers were confused when they eventually signed the final contract; they didn't realize the extent of the revisions which were in the final document. Essentially, they were OK with draft #3 and when they met at the bank to formalize the contract, they didn't realize that the document in front of them was actually draft #4, which required them to build a much fancier and more expensive house.

So once the Eurice Bros. realize that they've actually signed draft #4, they refuse to honor it, saying that they wouldn't have signed it if they'd known what was in it. Ray naturally expects them to honor the contract as a done deal, and sues. The litigation begins.

In my textbook, I get to read the appellate judge's version of this case and the reason that he decides the way that he does. (The casebooks, by the way, are strictly appellate decisions, which means that they're all cases in which the loser of the original verdict has taken the claim to appeals court. The main reason for this -- i.e., the reason that we're reading the appeal rather than the proceedings of the original case -- is that it's more concise. I can read an actual, binding legal judgment in Ray v. Eurice without having to read tons of pages of court transcripts -- longwinded opening/closing statements, rambling witnesses, etc.)

But even though the casebook contains a summary, it's not a very compact summary. And the judge who authors the decision isn't going to tell me why this particular case is important. I have to use his citations and his reliance on rules and precedent to decide what precedent this case seems to establish. That's not easy! If you gave me a random modernist poem, I could probably tell you how it adheres to and how it deviates from precedent, but I could do this because I know a few things about the aesthetics of modernism, the history of poetry, etc. I could probably do this exercise with a lot of examples drawn from traditions that I know pretty well: I can tell you how a current French film is different than a New Wave film, or how Peter Crouch is a different kind of center-forward than Alan Shearer, or why Obama is a different politician than Jesse Jackson. But I couldn't take, say, a piece of Japanese chamber music and explain its innovative features because I've never learned anything about Japanese chamber music. And after only four days of law school, I can't claim much more expertise over the tradition of contract law.

Another thing that can be initially overwhelming about law school is that we're expected to be able to retell the stories of these cases in exhaustive detail. I didn't get called on in the Ray v. Eurice discussion, but I would have been really lost if I had, because when the professor asks you for the facts of the case, s/he does not want you to skip over anything. If you'd said that "Ray and the Eurice brothers met a few times to revise the contract," you'd have been rudely interrupted and asked to identify the dates of those meetings and the specific nature of each of those revisions. Think of how weird a literature class could be if the professors demanded that you be able to retell all of the nuances of a story before analyzing it. You could spend five minutes of class time talking about the characteristics of Turkey and Ginger Nut before even getting to mention poor Bartleby. And who'd be prepared to do this? Pick your favorite novel right now and explain to me what happens on page 1. Don't leave anything out. Then move to page 2. Repeat.

More about how my five classes work in the next post...

Introduction to the blog

Molto Giuridico is translated as "very legal" or "very juridical" in Italian.

I'll be using this blog to write about my experiences as a first-year law student in a city in the midwestern US. What I like about the idea of a blog is the ease with which you can publish journalistic accounts of all sorts of things, from obscure sports to molecular gastronomy to juicy narratives about being a nanny to a stuck-up Brooklyn freelance writer.

What I don't like about many blogs is when writers attempt to cover too many of these varying topics, and not very well at that. In this blog, I won't post descriptions of what I cooked for dinner last night, predictions for the Rugby World Cup, my review of Flight of the Conchords, links to Obama campaign commercials, or any topics that don't directly pertain to the blog's subject: being a first-year law student. My goal -- which will take some practice, I know -- is to report on law school like a good feature journalist would do. My previous stint in a graduate program in the humanities taught me a lot of things, but it did not sharpen my ability to write with concision; most of my professors in that field actively or passively encouraged disorganization in my writing. I hope that blogging can help me relearn the skills of expository and analytical writing for a non-specialized audience.

Most of my readers will probably be people who know me, and so of course we have other lines of communication to talk about everything outside the world of law school. And conversely, you probably don't want to talk to me on the telephone about the cases I have to read in Civil Procedure, so it's here for your reading (dis)pleasure. If we're friends and you want to remain friends with me and yet you're bored to tears by the law school stories, it is OK: reading the blog is not a prerequisite for any future conversations we can have. I don't know if it will be worth anyone's time to read, and I won't make conversational references to its content assuming that anyone has. I hope reading this will be entertaining, but the commitments of law school itself will prevent me from spending too much time polishing my blog posts about it.

After a six-day orientation program, classes will officially begin this Tuesday. The first-year curriculum is comprised of five classes: Contracts, Torts, Civil Procedure, Constitutional Law, and something called "Lawyering," which is called Legal Writing and Research at some other schools. The classes meet two or three times a week, so I'll be in class from 9-noon every day, with an additional class in the afternoon on Monday and Thursday. The class time itself is a little lighter than some other schools (by 1-2 hours per week), but the reading load is just as daunting. I just bought several massive textbooks (costing nearly $700, including a couple of used ones!) which I'll be lugging around until mid-December. My daily planner now has a regular block of time devoted exclusively to these guys: Sunday through Thursday evenings, 7-11 P.M. We'll see how this reading plan works in practice...

Monday is the last day of orientation before classes start on Tuesday morning. I'm now dreading my email for fear that a professor is going to assign reading before the first class. Returning to the classroom as a student is going to be really strange...