Monday, April 29, 2013

Negligent Infliction of Emotional Distress #23: Scamblogs

The penultimate NIED column.  #24 will be my farewell column, and is yet to be written.  While this post replicates some of the material linked to in the first paragraph, I felt that an update on the matter would be instructive in determining of how many legal educations "scams" at certain institutions continue to exist.  My slight complaint about the version appearing on BLS Advocate is that they did not seem to get my point about the Claims Adjuster position posted on our school's job board...

On June 1, 2011, I posted a long “special comment” on so-called “scamblogs.”  That may be found here  As previously understood between me and the BLS Advocate staff, I will complete Negligent Infliction of Emotional Distress with 24 articles.  I felt that since I was nearing graduation, it was time to reconsider scamblogs, and see how the landscape has changed in the past two years.
                First, we consider, which has just said “goodbye” on February 27, 2013, after 500 posts.  One statement bears excerpting:
19 months and 499 posts later, it turns out that the core message of this blog – that legal academia is operating on the basis of an unsustainable economic model, which requires most law students to borrow more money to get law degrees than it makes sense for them to borrow, given their career prospects, and that for many years law schools worked hard, wittingly or unwittingly, to hide this increasingly inconvenient truth from both themselves and their potential matriculants – has evolved from a horrible heresy to something close to conventional wisdom.
                So the scamblogs have gone away because people got tired of repeating themselves over and over again, until people at the ABA decided that it was time to take their concerns seriously.  I personally dislike this blog because he brags about getting 50,000 comments (I have about 100 comments and 30,000 page views, but I would like to think that I have written on a far more diverse range of topics).  I also have little sympathy for law school professors that write about how they know they are “duping” their students—if you believe that strongly about it then get out (maybe it’s all he’s qualified to do, though). 
                Next up we have the always popular “ATL.”  I will not say much about this website as I have written at length on it in my previous special comment linked to above, but I will just say that I was very distressed to see them report on the resignation of our Director of Career Services, with a “hot tip” from a BLS student who bemoaned the fact that a position of “Claims Adjuster” was listed on Symplicity.  Note to self: Claims Adjuster is not a “legal job” but it’s at an insurance company and they always need lawyers so they wouldn’t be posting there if that wasn’t at least part of the concern.  Plus those jobs pay pretty well, and the lead singer from the band Pissed Jeans is a Claims Adjuster for his day job so I think it would actually be kind of cool to do that. 
                I hate “ATL.”  I have visited it less and less over the years.  It loads slowly.  It’s TMZ for nerdy lawyers and law students.  They make all their money off advertising from various “legal companies” and then they don’t exactly bite that hand that feeds them, but might as well [tell everyone that if they score beneath 170 on the LSAT don’t go to law school].  I have very little respect for this website and hope that my blog will never fall prey to being such a sell-out.
       is our next stop on the tour, and this site at least opens up with a nice post (dated December 26, 2012) asking whether the scamblogs are wrong.  Now this is an interesting question.   The scamblogs may have been right, and they may actually have effected a grassroots-type of change in the legal profession, now that US News & World Report has changed the way they list employment figures for graduated law students.  But do we really need scamblogs anymore? 
                The blogger makes an interesting point:
What is the point in not getting married or not trying in life because you did not get a job after law school?  What is the point in feeling sorry for yourself over the internet year after year?  There has to honestly come a time when you get off the internet and start striving again.  I just can't get over the fact that law school has broken so many people.  I can't come up with any other conclusion than these people were very weak individuals.  Some seem to literally revel in their own self pity, wallowing in the perceived idea that they are pariahs.  Many act as if they have given up on life, instead of trying to do something else, they just say "I can't do anything with my degree." 
                This is basically the point I wanted to make here.  Law school is not for babies.  If you’ve never had a job before starting law school, then you may not know what it is like to search for a job, and how demoralizing it can get.  It’s probably going to suck.  But things are different in 2013 than they were in 2012 or 2011 or 2010 or 2009 or even 2008.  They still pretty much suck, but they are, ever-so-slowly (we are told to believe) getting better.
       is an especially vicious site with offensive imagery that seems to revel in parades after parades of horribles.  In the past, this blog has taken pot shots at BLS and our President.  Now, many of us may feel strongly about our President, but nobody really knows how much of a role she plays in our school.  She is higher up than the Dean, no?  She is the at the very top and has done her best to plug holes in the sinking ship that is a law school of our caliber in New York City in these economic times.  As much as people might love to hate on her, the fact is many of us have not even spoken to her, and have no idea what she is doing behind the scenes.  We will not pay any more attention to the woman behind the curtain.   
                Higher education may indeed be a scam, but it is a scam with which we must live.  Persons concerned that they are not getting their money’s worth should avoid private education.  (Though it is worth noting that many public institutions have rather inflated tuitions for law school—see University of Illinois at $38,250 a year (in-state); I base my statement on the cost of attending Northern Illinois University, however, which most people would consider reasonable at $19,811 a year (in-state).)  Many people from my generation will find it necessary to obtain a higher degree because they have found out that liberal arts degrees are a a-dime-a-dozen and they are simply not competitive in the labor economy.  I would not say “the hard is what makes it great,” but I would say “the hard is what makes you prepared to accept the terms of reality.”  I’m not going to make $160,000 in my first year out of law school, and indeed may not even get a job paying $57,000.  But I am not going to blog about how I wish I had known better.  Law school has been a rigorous education and has opened up a few more job possibilities than were open to me with a B.A. I will continue to blog about literature, film, music, and interesting legal matters.   I will never suggest that BLS “tricked” me into attending (though I may file a complaint against them in small claims court for $6,000), and whenever I give my “unauthorized tour” of the library to prospective students, I tell them that it is a very good school, and the tragedy is that because we are all so well-qualified, a fair number of us will just get left in the dust because there will always be employers that only care about class rank. 
                BLS has cut back the number of students per class, and ultimately this is the wisest resolution of the “hyper-saturation problem.”  We may never be as good as NYU or Columbia, but my hope is that one day (hopefully soon) we will be recognized as a school on equal footing with Fordham.  And I do not think that is an unrealistic hope.  

Saturday, April 27, 2013

Negligent Infliction of Emotional Distress #22: Corporations

I really do not want to cover up "Wild Bill," but as we near the end of law school, we must think of others who do not read BLS Advocate.  While I have generally been pleased with the posting of my materials on BLS Advocate, there are at times small (nearly imperceptible) changes made to my work that I find to be incorrect.  My grammar and writing may be horrible, but I will continue to post the "unedited" versions on Flying Houses.  And using info-graphics that may require permission....

NIED #22: Corporations
By Christopher J. Knorps

I took Corporations in the Spring semester of my 2L year.  Only one section of it was offered then, and I was disheartened that I had not taken it in the Fall, when four (I think) were available, but I digress.  I do remember one Fall 2011 Corporations student’s status message on facebook: “If you are taking corporations in the spring, start outlining.”
                Corporations is a strange class—indeed, it is one of the many “upperclass requirements” (along with Evidence, Criminal Procedure, Trusts & Estates, and perhaps Tax or Administrative Law) but does not seem to focus on any single concept for too long except for the Business Judgment Rule.  By the end of the semester, you reach mergers & acquisitions, which is probably the hardest part of the course.  My professor worried, during an extra help session shortly before the exam, that I might “miss the forest for the trees,” and I was cautioned against doing so.  Regardless, I earned a B in the course—certainly the most disappointing grade in my 2L year—and I was later told that I was “boosted” from a B- for my in-class participation.  My hope is that after reading this column, you will not fall into the same Corporations trap. 
                First, if you have online access to BarBri or Themis or Kaplan, you should watch the lecture they have on Corporations.  It will not exactly be in depth, but it will tell you everything you need to succeed on the exam.  I feel that if I had watched the BarBri lecture, I would have earned a B+ or A- on the exam.  This was a class that I worked very hard in—and I knew the cases.  But I tend to focus on “the entire case,” rather than the rule to be gleaned from the case, due to a general distrust of “law student laziness.”
                “Law student laziness” may or may not be practiced by the top students—but it irks me to no end.  Corporations was difficult for me, because of the M&A stuff.  To illustrate, consider the Omnicare case.  Now, not only was the similarity of “Obamacare” and “Romneycare” a topic of some interest to throw off my concentration, but this case is a toughie.  It was the only assignment for that class, and we spent two hours on it.  When you have taken good notes from a two-hour class on one case, you have a problem because you have to get rid of all the extraneous stuff.  However, it is just like a law school exam to bring you through an extremely complex fact pattern that mimics patterns in certain cases, and forces you to react accordingly with the courts’ decisions in such instances.  I have no ideas about how to memorize such situations, but I can only suggest that you enumerate all of the relevant events in the merger negotiation process, and that you focus, laser-like, on the events or transactions most important to the court. 
Revlon is a different matter.  That is an easy case.  If your business is going up for sale, and everyone knows it, you now have an affirmative duty to find the best price for your shareholders. 
However, what the “best price” is in any given situation may be difficult to analyze.  Particularly if you do not have a very good idea about how analysts price stock. 
Now, I asked a question about this in my class, and my professor told me to take Corporate Finance.  I did that and got a C+ on that exam.  But I do know from that course how people price stock:
                XYZ Affair, Inc. has 1,000,000 authorized shares and was started with $1 million in capital. 
                Each share is worth $1.
                If XYZ Affair is very profitable, if it makes $500,000 in its first year of business, each share is now worth $1.50 (issues related to dividends, I will admit, are pretty well-cabined in the Corporate Finance course). 
                However, that would be too easy.  Stock pricing gets more difficult when you start including hostile tender offers that apply a “discount premium.”  In such a situation, Ronald Perelman or Carl Icahn is about to “raid” a company.  They may pay $4 for that share (probably more realistically they would not be interested in the XYZ Affair, Inc.), and once they own 500,001 shares, they have control.  Once they have control, they have a duty to their shareholders (unless the corporation is on the brink of insolvency, in which case the duties shift to the creditors of the corporation).  They will pay that $4 in order to get shareholders to sell, but once they have the majority of the stock of the corporation, they will be able to elect everyone to the Board of Directors. 
                I do not know if “poison pills” and “shark repellant” are essentially the same thing or not, and I am actually unsure of the veracity of the statements in the preceding paragraph by now (i.e. the stuff about voting).  But I do know my exam featured a “lock-up agreement” (also, may or may not be the same thing as a “no shop provision”) that I was unable to properly analyze, and so the rest of my answer came out a mess. 
                But I do know that BJR almost always wins the case for the Board—except in Van Gorkum.  And I do know that once it is determined that the Board is made up of “interested” directors, the standard shifts to “entire fairness” and the Board must prove their action was fair to shareholders.  Unitrin and Unocal are all about taking defensive measures against takeover attempts, and are easy, like Revlon to sum up in a sentence: the defense mechanism has to be consonant with the severity of the threat. 
                There are other cases—Caremark looms large, but I seem to remember that one just standing for the proposition that corporations must maintain internal systems of control to “police themselves” from committing fraud. 
                I really am afraid to write anything more because I don’t want to be wrong.  Just watch the lecture.  It should help.  If you want to comment in the hopes of clarifying some minute aspect of the corporations course, feel free—let this column be a place for impromptu truth-seeking.

Christopher J. Knorps is a 3L at Brooklyn Law School.  He enjoys studying bankruptcy law and constitutional law. He is organizing Brooklyn Law School’s 2nd Annual Open Mic—please e-mail him at if you want to reserve a slot ahead of time.  You may read more of his work at  

Wednesday, April 24, 2013

Wild Bill: The Legend and Life of William O. Douglas - Bruce Allen Murphy

Justice Douglas is my favorite Supreme Court justice, ever.  Justice Stevens is #2, and Justice Brandeis might be #3.  (Brennan, Marshall, and Black might fill out a few other top slots.) That all 3 ran on the "same line" from 1916 - 2010 is noteworthy, and whatever reservations Douglas may have had about his likely successor, one hopes that Justice Stevens "made good" in the eyes of history (I believe that he has).

Wild Bill is a long book--511 pages to be exact.  It was published in 2003 and took 15 years to research and write.  Mr. Murphy did a fine job with his research and his prose, but one tends to wonder about editing.  While Wild Bill will certainly make the "best books" list on Flying Houses, I fear that it did not capture a wide audience.  Murphy states that he had a 2,700 page manuscript at one point, so boiling this down to 1/5 of that length must have involved some serious editorial wrangling.  He had good help:

"My gratitude is extended to agent Robert Gottlieb, then at William Morris, for arranging the original book contract and for encouraging me to stick with the plan of doing a one-volume biography." (515)

Gottlieb is a legend in his own right, but it is quite apparent to me that few people in 2003 were still interested in reading multi-volume biographies.  However I will not use this review as a sword against the modern world of literary agents.  This is a book that deserved to be published (of course) and deserves to be called one of the greatest biographies in American history--primarily because its subject is one of the greatest heroes in American history, and the treatment of that subject is well considered.

For those that are unaware of Justice Douglas (or who did not read my review of his excellent work Points of Rebellion) there are a number of "sound bites" that people in law school tend to know:

(1) He was married four times.
(2) He was an impassioned environmentalist.
(3) He holds the record for the longest term of service on the Court.
(4) He was fucking crazy.

Of course I am only kidding about the last one.  If he was crazy at any point, it was near the end of his life, and I intend "crazy" in its most endearing form: good crazy; not bad crazy.

His life story is not easily told in a review of a book, but I would like to comment on one thing first:
Whitman College.

Now, few people may know this, but Whitman College was on my "shortlist" of undergraduate institutions to attend back in 2001.  It did not win out, but I am sure that had I gone there, I would have been aware of Justice Douglas much earlier in my life, and would have modeled the years past accordingly.  Therefore, I blame the admissions outreach office of Whitman College for its failure to highlight this esteemed alumnus's humble roots.  Perhaps I was not interested in law when I was 18, but I am sure that, had I gone to Whitman College, I would have gone to law school immediately, would probably have graduated at one of the most terrible times in history, and might not be sitting in the Napping Room of the Brooklyn Law School library, typing out this post.  

I suppose the best place to begin is with his time in law school (at Columbia):

"As his classmates got to know Douglas, they became aware that he was different from them.  'The thing that really set him apart from the rest of us,' remembered classmate Herman Benjamin. 'was not his brilliance--we were all pretty smart--and it was not his poverty--we were all pretty poor...No, what set him apart from the rest of us was his age.  He was a full two years older than the rest of us.'  Indeed, in an entering class of 264 people, nearly all twenty-one or twenty-two years old, Douglas was one of only two who were about to turn twenty-four.  Embarrassed by this difference, Douglas made up a story to explain it...." (44)

That story involves distinguished service in World War I, which later serves to get him a place at Arlington National Cemetery.  This is apocryphal, like some other stories Douglas liked to tell, but true enough to make people shut up.  

Douglas did well in law school, but not as well as most modern Supreme Court justices:

"This combination of intellectual challenges took its toll on Bill Douglas's scholarly performance.  At the end of the first year's exams, when the top several students were acknowledged by being named James Kent Scholars, Douglas was not among them.  Douglas's friends believed that his lack of academic success was due to causes beyond any intellectual weakness on his part. 'Douglas was not well-off in law school,' explained Herman Benjamin.  'He was the only one of our class who absolutely had to work...The rest of us worked to get spare money, but Douglas had to work to live.  I think it's quite possible that his financial straits may have affected his scholarship." (45)

Later, he improved in his second year, due in no small part to the efforts of his first wife, Mildred, who taught school in New Jersey and supported him for his last two years in school.  However, it was not without its disappointments.  He didn't make the Columbia Law Review (at first) and he "lost a clerkship."  Furthermore:

"The real truth, they all knew, was that the Yakima Apple Knocker had been nowhere close to graduating second in his class or, for that matter, to the law clerkship.  Herman Benjamin, a Law Review compatriot who is acknowledged as the class's historian, remembered, 'Not only can I assure you that Al McCormack was the universal and obvious choice for the clerkship [with Harlan Fiske Stone], but...if Douglas was competing with McCormack, it was for no better than fifth in the class....Douglas's memory on this matter is never very precise.  I have concluded that he is always a little general about the facts.'" (474)

This is not a far cry from my laments about Justice Stevens being the only recent Justice not to graduate from Harvard or Yale, but that being okay because he graduated #1 in his class at Northwestern.  Once again, I lament that only the most intellectually superior will ever have a chance to sit on the Supreme Court.  It is particularly ironic, in this day and age of anti-intellectualism, that the President has never felt compelled to place a "more ordinary" mind on the Court.  I digress.

Justice Douglas was raised in large part by his mother, with whom he had a stormy relationship.  His father was a Reverend, and sometimes Murphy invokes that image when writing of Douglas as a "preacher from the pulpit of the Court."  He was very ill as a boy, but recovered, and eventually was a very powerful hiker.  At one point he challenges a bunch of people to hike a 161 mile trail:

"The Washington Post endorsed a plan to build the C&O Parkway from Cumberland, Maryland, to the nation's capital along an old 185-mile, 230-foot-wide towpath beside the historic Chesapeake and Ohio Canal....Douglas sent a letter to the editor protesting that this highway would destroy the canal that his predecessor Justice Louis D. Brandeis used to travel by canoe to Cumberland.  Even now, he said, 'it is a refuge, a place of retreat, a long stretch of quiet and peace at the Capitol's [sic] back door--a wilderness area where man can be alone with his thoughts, a sanctuary where he can commune with God and with nature, a place not yet marred by the roar of wheels and the sound of horns.'" (330)

Of course he makes good on his challenge, and the editors at the Post decide that they were wrong, that the trail is indeed beautiful, and that they no longer endorsed the project.  

Oh, also he did this (in his mid-50's) after a horse fell on top of him about five years earlier, crushing 23 out of 24 of his ribs.  

There is also plenty of gossip regarding his womanizing and drinking.  No less than five wives/long-term girlfriends (while married to someone else) were sprinkled throughout his life.  And there were more:

"'We never knew what Dad did in Goose Prairie,' recalled his daughter Millie.  'He would just be gone for long periods of time [during the summer].'  And he took advantage of his privacy, especially in his relationships with women.  'Bill was the biggest whorer around,' recalled Isabelle Lynn, an early guest and later Kershaw's partner at the Double K, 'but we still loved him, though.'  Kay Kershaw had built a one-room, tine-roofed outbuilding, complete with a fireplace and a half bath, where a guest could live in total seclusion even from the main ranch.  This very quickly became Douglas's home away from home.  'Bill came here when he had a girlfriend, or when he didn't have a girlfriend and was writing one of his books,' recalled Kershaw, adding with a knowing smile, 'and he was here a lot.'  His female guests were arranged by an old friend.  'Douglas would just see what he liked in Yakima, and Elon Gilbert would ask the girl up,' explained Kershaw.  'I was always seeing girls come by saying, "Is Bill around?"   There were all types and all ages, and they came all the time...Poor Bill,' Kershaw concluded, 'he was no family man.  His personal life was all fouled up.'" (270-271)

As for drinking, Douglas could do it with the best of them.  But his paranoia, while oftentimes reasonable in certain respects (this was the J. Edgar Hoover era after all), sometimes took a toll on his staff:

"After a day of hard work with Douglas, everyone would wait until he departed before leaving themselves--sometimes it was at 6:00 and sometimes as late as 8:00 P.M.  When Douglas found out about this practice, he began leaving and then returning ten minutes later to see if the work was still under way.  If he saw no one, Douglas asked his secretary the next day, 'Where was everyone last night?  I came back, and no one was in the office.'
On days when they did not all scramble for the door after he had departed, the bottle of vodka in the bottom of Fay Aull's desk might be brought out to celebrate the survival of another day in the Justice's service.  One time, the Justice walked in a few minutes later to find a party well under way, said nothing, and went into his office.  The next morning, he buzzed for his secretaries and told them, 'Somebody is stealing my booze.'  Knowing that no one would dare touch the ample supply of liquor that he kept in his office, this was merely intended to put them on notice that what he saw should not happen again.  All it did, though, was convince them all to wait an extra five minutes before beginning the end-of-day festivities." (407-408)

There is also a great account of a pseudo-nervous breakdown he suffers while on a hiking trip:

"Everyone looked forward to dinner and the conversation that followed around the campfire, where Douglas would often sit cross-legged on the wooden supply boxes or on a log by the fire and tell his stories.  Looking past the roaring embers, with sparks filling the air around him, he would mesmerize the travelers with his tales of how he had 'cleaned up the Street,' how he had told Felix [Frankfurter] to 'go to hell,' or how close he had come to being vice president and then president instead of that haberdasher from Missouri.
But as the pack train moved along on this August day, it soon became clear to everyone that something was dreadfully wrong with their famous friend...'I'm gonna get good and drunk tonight,' he hissed at Cragg Gilbert.  Normally, that would not be an unusual statement, except this time Gilbert could see that Douglas would be drinking out of anger rather than to amuse himself.
As soon as the procession reached Blankenship Meadow, nearly everyone sprang into action--pitching their tents, getting their water, scouring the woods for kindling, arranging the food and cooking utensils for dinner, and building a campfire.  But Bill Douglas did none of that.  Instead, reaching into one of his saddlebags, he took out a liquor bottle and just sat down, drinking as fast as his body would allow.  With each swig, a deepening anger set in.  When the bottle was finished, he simply tossed it aside, returned to the saddlebag, and picked out another one.....Douglas started mumbling, but it wasn't to anyone around him, it was only to himself and in a language only he seemed to understand....'They bought it! They bought the goddamned nomination!'...Douglas's mumbling eventually ceased, and he began yelling at no one in particular...."(348-349)

So on the personal side of things, Murphy does a good job of summarizing Douglas's life.  Murphy's writing on the law could be compared to Jeffrey Toobin's (in The Oath or The Nine), though it lacks the same kind of immediacy that present-day reportage on the Court entails.  It seems clear that Murphy is "liberal," but he is more nuanced in his treatment of "conservative" justices.  In any case, this book has some overlap with The Brethren, but an unrelenting attack on Justice Burger is not undertaken. And it is to Murphy's credit that he must have known the existing literature on his subject, and that he didn't want to needlessly repeat some episodes already noted in other books.  Thus, there is some discussion of Douglas's treatment of his law clerks, but none of the stories from The Brethren are repeated.  Generally, Murphy is great at summarizing the Court's decisions in concise and well-chosen language.  See for example, his two sentence summary of Roe v. Wade:

"In Roe, the Court had overturned Texas's ban on abortions by creating a trimester system regulating the ability to secure abortions based on the differing interests of the three parties involved in the dispute: the mother, the unborn fetus, and the state.  While the mother had an unlimited right to get an abortion in the first three months of a pregnancy, and the state had the right to prevent an abortion in the last three months to protect the fetus, in the middle trimester a state could only regulate the decision to get an abortion based on the need to protect the health and life of the mother." (458)

So, again, this book will be useful for students studying Constitutional Law.  Here is a brief list of cases that the book touches upon, and may be useful in supplementing one's studies:

Adderley v. Florida (1966)
Dennis v. United States (1951)
Feiner v. New York (1950)
Griswold v. Connecticut (1965)
Korematsu v. United States (1944)
Minersville School Dist. v. Gobitis (1940)
New York Times Co. v. United States (1971)
Papachristou v. City of Jacksonville (1972)
Poe v. Ullman (1961)
Rosenberg v. United States (1953)
Roth v. United States (1957)
Sierra Club v. Morton (1972)
Terminiello v. Chicago (1949)
United States v. Nixon (1974)
United Stats v. O'Brien (1968)

Sadly, the book does not pass the 420 test--but it comes pretty close:

"By this time [1970] he was especially suspicious of the FBI.  Upon noticing men in dark suits loitering around his summer house, Douglas began to investigate their mission.  'I wrote you last fall or winter that federal agents were in Yakima and Goose Prairie looking me over at Goose Prairie.  I thought they were merely counting fence posts,'  Douglas wrote his friends at the Double K ranch in the spring of 1970.  'But I learned in New York City yesterday that they were planting marijuana with the prospect of a nice big TV-covered raid in July or August.  I forgot to tell you that this gang in power is not in search of truth.  They are "search and destroy" people...It would be ironic if they planted it over in Ira [Ford]'s yard, not mine!'  But no such marijuana raid was ever staged." (444-445)

Douglas's career looks like this: (1) humble beginnings in Yakima, WA; (2) Whitman College years; (3) One year spent teaching high school; (4) Columbia Law School years; (5) Time spent working at Cravath, the work making him sick, weighing his other options; (6) Time spent teaching at Columbia and Yale Law Schools; (7) Offers dangled from the University of Chicago, playing law schools against one another to have him on their faculty; (8) elected Chairman of the SEC and prosecutes Richard Whitney; (9) Appointed to the Supreme Court in 1939; (10) Potential Vice-Presidential Candidate for Franklin Delano Roosevelt and Harry S. Truman; (11) Potential presidential candidate--until he gets divorced; (12) Several wives, stultifying alimony responsibilities, and general disarray of personal financial affairs; (13) Discovery that he could be paid handsomely for writing books on the various travels he took; (14) Last surviving New Dealer on the Court, facing five Nixon appointees; (15) Greatly diminished old man who refuses to accept that he can no longer handle the work on the Court after suffering a stroke.

While the book does not discuss the Bakke case (that was decided in 1977, two years after Douglas retired), it does mention a similar case that came before it, and Douglas's opinions on the matter would turn out to be quite prophetic:

"The 1973-1974 term offered Douglas the opportunity to deal with the growing number of programs offering preference based on race to law-school applicants.  Marco DeFunis Jr., a Caucasian, was suing the University of Washington Law School for denying him admission while admitting under its 'affirmative action' program minority applicants with lesser qualifications...'I don't know about these tests,' said Douglas, referring to the Law School Admissions Test (LSAT), which is used to test the aptitude of prospective law-school applicants.  Three days later, after the Court decided not to hear the case because DeFunis was about to graduate, Douglas decided to write a dissent to the denial.  The reason, he explained to his clerk, was simple: 'I might not be around next time this issue comes up.'
After considerable back and forth with his clerk in writing the opinion, Douglas's arguments against affirmative-action programs were instructive.  First, he vigorously attacked the LSAT, even without evidence to prove his point, as being so racially biased that on occasion there must be reverse bias by a law school to correct it.  The only requirement for him was that 'the consideration of each application [be done] in a racially neutral way.  Since [the] LSAT reflects questions touching on cultural backgrounds, the Admissions Committee acted properly in my view in setting minority applications apart for separate processing...The melting pot is not designed to homogenize people, making them uniform in consistency.  The melting pot as I understand it is a figure of speech that depicts the wide diversities tolerated by the First Amendment under one flag.'.......
Douglas made very clear, however, that he had no tolerance for a quota system, by which a certain number of the seats for the incoming class were reserved for certain minorities: 'The reservation of a proportion of the law school class for members of selected minority groups is fraught with similar dangers, for one must immediately determine which groups are to receive favored treatment and which are to be excluded, the proportions of the class that are to be allocated to each, and even the criteria by which to determine whether an individual is a member of a favored group.'  Only a policy of admissions based on racial neutrality was the answer: 'The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish.  It should be to produce good lawyers for Americans and not to place First Amendment barriers against anyone...A segregated admissions process creates suggestions of stigma and caste no less than a segregated classroom, and in the end it may produce that result despite its contrary intentions.'  For Douglas, who had once been denied access to the undergraduate portion of this very school because of his family's finances, the programs of affirmative action, which diminished the use of merit as an admissions criterion, were not permissible: 'All races can compete fairly at all professional levels.  So far as race is concerned, any state-sponsored preference to one race over another in that competition is in my view "invidious" and violative of the Equal Protection Clause.'  He was prepared to send this case back to the lower court to determine both the impact of the LSAT and this application process on various groups." (467-468)

These concerns would arise 40 years later in the Grutter and Gratz (University of Michigan) cases, and are still being decided as I write this today (University of Texas).

The lesson is that anyone interested in a progressive future for America should read this book and try to follow Douglas's lead.  To be sure, Murphy does not hold up Douglas as a god, and details his personal indiscretions as greatly as his contributions to American society at large.  So maybe, it is not okay on a moral level for a Supreme Court justice to use his or her position in order to constantly get laid.  But the point is Douglas lived by what he preached.  He believed in the freedom of the individual to express themselves in whatever ways they sought fit, and he certainly expressed himself without worrying what others would think of him.

Murphy sums up Douglas's importance in the history of 20th century America nicely near the end:

"He celebrated his 74th birthday, on October 16, 1972, by objecting to twenty-six denials of writs of certiorari, offering full dissents in ten of them.  Douglas was objecting to the Court's unwillingness to hear all manner of cases: antimonopoly laws, airport zoning statutes, state support for parochial-school education, employment liability, destruction of war materials, the constitutionality of chain gangs, and the rights of the poor in filing for criminal-trial transcripts.  By this time, Douglas was so anxious to show his displeasure with his colleagues that when four members of the Court voted to accept a case, he objected to that as well.  But with four Nixon appointees now dominating the Burger Court, it was all to no avail." (458)

His retirement announcement is described in rather moving terms as well:

"After they heard the news, one by one each member of the Court walked over to shake their senior colleague's hand and wish him well.  Then, as Douglas was quietly wheeled to the door, he raised his good arm, and, with some difficulty, expressed to his colleagues what had become his mantra in his waning years: 'Keep the Faith!'  With Douglas's record-making legacy of 1,164 full opinions, including 486 full dissents (not to mention thirty-two books and hundreds upon hundreds of public speeches), now complete, for the first time in more than thirty-six years the guardianship of the Constitution was in others' hands." (495)

At times this book may drag (I found it a bit slow through the several chapters dealing with Douglas's Presidential ambitions) but at other times it reads like an adventure story ("Trouble in the Woods" may be the strongest chapter in the book, as Murphy does an excellent job of recreating the horror of Douglas's horseback-riding accident).  Generally, the book is about as "quick" a read as you can expect for a 500+ page volume.  It is excellent reading for law students and those interested in the law, but I fear most people will forget about Justice Douglas.  That would be unfortunate because his influence remains relevant even in these technologically-advanced times.  Douglas could see where the future of America was heading, and more often than not, his opinions articulated that view.  He was an extraordinary human being, and this book is likely the most authoritative text on his life.

Of course this book won't be for everyone--but as I've mentioned on Flying Houses previously, parents should stop telling their children to "one day be President" and instead urge them to "one day be a justice."  Douglas may have wanted to be President (due in no small part to his mother's prediction that it was his destiny), but the lasting impact of his work as a justice easily outdoes that of the majority of 20th century American Presidents.  Future generations of law students will know his name, but more of the general American population should become acquainted with him.  This book should provide that requisite level of intimacy for all.      

Thursday, April 4, 2013

Roger Ebert - 1942 - 2013

Obituaries do not make for popular posts but they only appear on Flying Houses when the person in question has played an indispensable role in the development of the state of the art presented herein.
In terms of the methodology of Flying Houses, there is no more influential person than Roger Ebert.  He changed the medium of the review, and I have always endeavored to live up to the very high standard that he set.

He didn't create the medium, but he certainly deserves to be placed in the top ten most important people in the history of cinema.  Back in the 1990's before Gene Siskel died too young, people would make fun of Ebert because he was fat.  Then later on, he lost his ability to eat, and speak with a human voice, and people championed him as the survivor par excellence.  Lately, as I saw Richard Roeper post more reviews on, I started to fear that Ebert was not writing as many reviews because his condition had worsened.  I am sad that I will not know whether he agreed with Roeper or not on A Good Day to Die Hard.

Before I delve into this obituary, I want to highlight two things.  First, a question that was asked by a reader many years ago, and was printed in the 1996 Film Companion that Ebert released:

"Q: Help me settle something.  If Writer A and Writer B both wrote their opinions on a film--both with diligence and pride in their work--what difference in the two pieces would identify Writer A as a Film Critic and Writer B as someone just offering an opinion?  Take the weekly feature you see in some papers, where kids review films.  At what point do they cross the line, and can be called a Critics as opposed to reviewers?  Is there some sort of certification program, like taking the Sally Struthers correspondence course in gun repair? (Andy Ihnatko, Westwood, MA)

A: This is a fascinating question, not unrelated to, "at what point do we know Swift doesn't really intend for the starving Irish to eat their babies?"  The noncritic Reviewer will often betray himself by these mistakes:
(1) Pretense of objectivity;
(2) reluctance to introduce extraneous knowledge;
(3) predictions of which audiences will or will not enjoy the film;
(4) bashfulness about writing in the first person;
(5) distancing self from actual experience of viewing the film;
(6) an overwritten first paragraph.  The genuine Critic will write in such a way as to acknowledge that he had a subjective personal experience which he wants to share with you, and which reminded him of other films or other subjects.  He will wear his knowledge lightly and never presume to speak for other than himself." (920)
Ebert wrote for the common film-goer.  He did not write in a high-handed style, and he did not believe in an objective standard of film criticism.  And it makes sense.  Sometimes we can tell when there is bad acting.  That is a given.  A fair portion of the population has some experience in acting.  Sometimes we can tell when there is bad writing, too.  But it is not often that we walk out of a movie and say, "Man, that cinematography was so bad!" Ebert might remark upon the cinematography, if it was good, and he might have remarked about the superiority of the letterbox format over pan-and-scan, but otherwise his writing was addressed at the average moviegoer.  And he responded to them.  Second thing I wanted to mention:

When I was 17, I went to Old Orchard Mall in Skokie, IL and attempted to buy a ticket for the film Requiem for a Dream.  I was not allowed in.  I argued for a bit with the people in charge there, but I lamented my plight in an e-mail to Roger Ebert.  In his review of that film, he wrote that the film's NC-17 rating was unfortunate, because it was specifically the type of film that teenagers should see, because it showed how horrible drug addiction could get.  I wrote that this was just so unfair, man.  And he wrote back, "I know, I know.  Damn."
Two sentences.  They didn't change my life, but they made me realize that Roger Ebert was a very special type of celebrity: he was "one of us."

Every critic (whether it be film, theater, music, or literature) should study the work of Roger Ebert.  I never took a Cinema Studies course at NYU.  Maybe they do assign some his reviews, but my presumption is that they do not.  But they should.  I have often debated with my colleague (my "Siskel," if you will) Jay Maronde about the difference between a "film" and a "movie."  Ebert understood he could give four star reviews to either (his four-star reviews include Less Than Zero, Dick Tracy, Drugstore Cowboy, Lethal Weapon, Return of the Jedi, Who Framed Roger Rabbit, What's Eating Gilbert Grape?, Superman, Superman II, 2001: A Space Odyssey, and L.A. Story).

I am deeply saddened by his passing and just wanted to state that the work of this blog is my attempt at carrying out his mandate on how to be a Critic, rather than a Reviewer.

Monday, April 1, 2013

Happy 5th [April Fool's Day] Birthday to Flying Houses

Today is April Fool's Day and also the birthday of Flying Houses.  We turned 5 today.

It is always a good time to consider our achievements over the past year.  Consider this my MD&A.

First of all, we cracked 30,000 all time page views.

Second, we cracked 2,000 monthly page views in March 2013, demolishing the previous month's record by nearly 700.  This may or may not have been a "pop" instituted by Jeffrey Toobin's "retweet" of my review of The Oath.

Among the highlights of the past year, The Bond Project remains most prominent.  More than 25 posts were made on this topic.  Flying Houses will be making our 250th Post very soon and we expect it to be a special one.  But we would not be at this point if not for the hard work of Jay Maronde, who has proven himself to be an expert on James Bond.  With the Die Hard Project currently in progress, I cannot thank Jay enough for his contributions.

I also want to thank Emily Dufton for her excellent review of IQ84 by Haruki Murakami.  This was one of the finest pieces of literary journalism/criticism that I have read in recent years, and I am deeply honored that I was able to present it here.

I also want to thank our most recent contributor, J. Alexander Gibson for his review of The Defining Decade, and not just because I post it in the waning days (16 left to go) of my twenties: I feel that these types of books (non-fiction or sociological theory) are potentially the most rewarding ones to review because real life experience, as opposed to the trait of being "well-read," colors the interpretation of a text in more "useful" or "tangible" ways.

I want to thank the BLS Advocate for allowing me to write my column and also post those columns (in their un-edited form) on this blog.  Those comprise an additional 22 posts or so, and again, without those we would not be knocking on the door of 250.

My hope is that by April 1, 2014, I will be gainfully employed, and will have cracked 300 posts and 75,000 page views.  Those may be ambitious projections, but I believe they are within reach.

Apart from those reviews already linked to above, here are what I consider to be the "greatest hits" of April 1, 2012 - April 1, 2013:

#1: NIED #9: Not in Love (Legally)  (posted 4/4/12) - This is a column about people seeking their spouses in law school.  Notable because some anonymous commenter on BLS Advocate just wrote, "you poor, poor thing," after reading it. (I tend to wonder whether that comment was a legitimate expression of sympathy or a passive-aggressive jab.)

#2: The Crying of Lot 49 by Thomas Pynchon (posted 5/13/12) - This was the first book I was able to review by Thomas Pynchon, and it was an excellent read.  Highly recommended, though it does not quite make the list of the "best books reviewed on Flying Houses list" (which you may find in my Profile).

#3: Discourse on Method by Rene Descartes (posted 6/1/12) - Understandably not the most popular post, but an original one as reviews on Flying Houses of philosophical texts hold the potential for enormous intellectual rewards.

#4: The Dark Knight Returns by Frank Miller (posted 6/27/12) - Important because (a) it is named one of the "best books reviewed on Flying Houses" and (b) it is the first of many reviews of graphic novels that were undertaken over this past year.

#5: Big Sur by Jack Kerouac (posted 8/20/12) - Important because it is one of the last works of literature reviewed before the beginning of my 3L year, which brought great changes.  An entertaining review, and a book worth reading if one is interested at all in Kerouac.

#6: Skyfall (JK); Skyfall (JM) (posted 12/3/12) - Dueling Reviews of the newest Bond, our film criticism at its height.

#7: The Brethren by Bob Woodward and Scott Armstrong (posted 12/15/12) - Maybe I didn't do so well in my classes because I was so wrapped up in this book.  Notable as good "background reading" on certain cases in First Amendment law, provided at the end of the review.   Also notable for making the "best books" list.

#8: Superman: Red Son by Mark Millar (posted 1/1/13) - Notable for being such an outstanding work of art in the graphic novel medium.  A personal favorite from the year and an entrant on the "best books" list.

#9:  My Bloody Valentine - m b v (posted 2/16/13) - The album that took 22 years to release created a ton of music journalism--this was my little drop in the bucket.

#10: Die Hard with a Vengeance (JM) (posted 3/20/13) - This movie is an underrated classic and deserves to be seen by more members of the general public.  I include it as #10 as a way to sign off this post, as we are still meandering in the territory of the Die Hard Project and will soon complete it.

Thanks to all of our readers and thanks especially to those that have left comments.  You have helped to make this blog a success.  It may not be the greatest way for me to make money, but I feel that a substantial public interest has been served, and I will continue to do my best in providing excellent content for years to come.