A People’s History of the Supreme Court – Peter Irons (2006)

A People’s History of the Supreme Court is modeled after Howard Zinn’s A People’s History of the United States, a book I have not read but have often seen in the bookshelves of friends.  As such this review may be lacking.  It would be interesting to compare the books to one another and see which is more “readable.”  This book clocks in at 531 pages and covers the period between 1787 and 2006.  It mentions every single Supreme Court Justice, but it is less about the personnel of the Court than the cases brought before it.  There are glimmers of greatness in this book, but I must confess that it eventually began to bog me down.  This may be attributed to the fact that I have previously read and reviewed The Brethren, Wild Bill, and The Nine—three books which mine similar territory to this book’s final 130 pages.  Regardless, the first 400 pages were often more interesting than not, and Irons has created a largely admirable work. 

But first, I cannot resist tying in a personal connection.  Few readers of Flying Houses have been with us from the beginning (those inauspicious days of April through July of 2008), but it is worth noting that Irons’s literary agent was the subject of an early post.  “Finally, let me thank some of the people who helped make this book come to life.  My agent, Sandy Dijkstra, found my editor, Jane von Mehren, whose meticulous and thoughtful editing has improved the book immeasurably.” (xix) Now, there are not all that many literary agents.  There are the heavy hitters, and they keep large rosters of writers.  However, I found this mention quite ironic.  Ms. Dijkstra was the only agent to respond to my query on my first novel.  She rejected it, and I attacked her in the post linked to above, which mentioned her derision for the original title of The Joy Luck Club. 

First, let me note that I am not the same person I was in 2008.  Many changes have taken place and I would probably not be so critical of Ms. Dijkstra as I was in those impetuous days of my mid-20’s.  Second, let me note that my complaints have not abated, and that the publishing industry continues to irk me to no end.  I went to law school in a time of economic turmoil, and I felt that getting a job with a law degree would be easier than getting a first novel published.  My dreams remain intact, however, and soon it will be time to test those waters again.

With that out of the way, Irons opens up his book by explaining that he was an ex-con admitted to Harvard in his mid-thirties.  He went to jail, “serving a three-year sentence for refusing military induction in 1963.” (xvii)  He also was instrumental in reopening the wartime internment cases of Fred Korematsu, Min Yasui, and Gordon Hirabayashi.  In short, Irons mentions these facts in the introduction to the book as a way of setting up the reader’s expectations.  Yes, he is probably going to be taking a “liberal” stance on the cases to be discussed. 

This does not make the book any less valuable, however, because Irons is a very good researcher.  The book opens with what is probably its strongest point of coverage: the Constitutional Convention in Philadelphia, PA in 1787.  For the first 75 pages or so, Irons brings the real “framers” to life and makes it feasible for 21^st century readers to understand them and maybe even identify with them.  This part of the book is truly special because there have been numerous debates about the “original intent of the framers” and how to decide cases from a “textualist” perspective.  Irons delves deeply into this material—but not so deeply as to make it a bore.  I have to believe that many Americans would find this portion of the book to be a “page turner,” even though it makes virtually no mention of the English court system or how the American court system would differ.  He does offer up a real stinger to the pro-gun lobby:

“In recent years, advocates on both sides of the ‘gun control’ issue have debated the ‘original intent’ of those who framed the Second Amendment.  Elbridge Gerry, Madison’s adversary in both Philadelphia and New York, offered this defense of the proposed amendment: ‘What, sir, is the use of a militia?  It is to prevent the establishment of a standing army, the bane of liberty.’  Arming the citizens who belonged to state militias, Gerry argued, would deter Congress from establishing a federal army that might oppress or invade the states.  Those who now advocate the constitutional ‘right’ of every citizen to ‘bear arms’ of any kind—from cheap handguns to assault rifles—are well advised to read the debates that led to adoption of the Second Amendment.  Not a single member countered Gerry’s argument that the ‘right to bear arms’ was limited to members of a state militia.  The current opponents of gun control legislation pay little heed to the Framer who spoke most clearly to the ‘intent’ of Congress on this controversial issue.” (75)  

From there, he moves into a discussion of George Washington’s first appointments to the Supreme Court.  This may well be the most hilarious portion of the text.  It is understandable that the Court seems “bush league” because it was in its infancy.  They barely have any work to do at first, and many of the Justices simply failed to show up for work.  Nobody really seemed to care, though.  The Supreme Court was in New York City in those early days.  It is worth noting that Irons writes with an eye towards entertaining “lay readers” (i.e. those that have not studied the primary materials themselves) and at times he writes with literary flair:

“The men Washington placed on the Court, in contrast [to Franklin Roosevelt], were a thoroughly undistinguished lot.  One spent time in debtors’ prisons for defaulting on loans; one returned his commission after five days to serve in state office; one never attended a single Court session; one was impeached for political bias on the bench; one was insane; and another was senile.” (86)

Things changed in 1801 when John Marshall took the post of Chief Justice.  Irons mentions that there are more than twenty books about Marshall and practically everything is praiseworthy.  Irons is careful, however, and keeps a critical eye on the Justices, primarily in regards to their views on slavery.  He is very tough on Marshall’s successor, Roger Brooke Taney, whom he denounces as a “racist” perhaps a dozen times, but he is more even-handed with Marshall:

“For almost two centuries, praise for Marshall as a judicial statesman has far outweighed criticism of his role as Chief Justice.  But the historical scale requires some balance.  Marshall was plain and humble in person, yet he was an aristocrat in outlook.  He came from a state [Virginia] that vigorously insisted on its ‘sovereign’ rights within the Union, but he favored the ‘General Government’ in almost every case he decided.  He read the Constitution broadly to protect the rights of property, but narrowly when he addressed individual rights.  Most important, Marshall disregarded his ‘feelings of humanity’ and looked at blacks as property, not as persons.  This last weight on the historical scale strips the mantle of ‘statesman’ from Marshall’s shoulders.” (141)

At this point it seems prudent to consider the usefulness of this book to law students.  There is probably no better book for incoming 1Ls to law school than this, for it covers almost every single case that will be encountered in any course on Constitutional Law.  This is what makes the book largely admirable.  While The Nine may be a more intriguing read because it covers events that most of us are not too young to remember, this book explains the foundations of the major doctrines of Constitutional Law—it is thorough on First Amendment cases and the Equal Protection Clause; it mentions substantive due process in passing; it covers the early Commerce Clause cases in fair detail (but unfortunately fails to mention Wickard, Lopez, Morrison, or Raich); it covers the “laissez-faire” period of the Court and the Lochner decision quite well; and it draws useful distinctions on the voting of certain Justices on the value of precedent and deference to the legislature against judicial “activism” and “voting from the gut.” And the Table of Contents will be useful for law students that wish to gain a more “human” grasp on what is actually being said in the opinions they are studying, for it includes all the cases mentioned.

The coverage of the major Marshall Court decisions is phenomenal.  Marbury v. Madison and Martin v. Hunter’s Lessee are brought to life, and Irons thankfully explains Marshall’s personal role in each, which some professors may mention but may just confuse law students, for the facts behind each case are so bizarre.

His coverage on Chief Justice Taney’s reign is focused squarely on the Dred Scott decision.  I had no idea how complicated the facts behind this case were, but while Irons explains that details on it are sketchy, he does an excellent job of telling the story of how Dred Scott came to bring his case before the Supreme Court.  This is a very long section of the book and probably has the most detailed analysis of any single decision.  This case is not a major point of study in law school, but it is interesting reading. 

He also covers the case Ex parte Milligan in good enough detail that it will prove helpful for law students.  This is a case that is studied more often, and it is these early cases (up through the Slaughterhouse Cases) that make for the most difficult reading in a law school course and accordingly prove to be the most valuable portions of the book.  But what comes across most clearly is Irons’s distaste for Taney:

“Lincoln correctly charged Taney with trying to ‘nationalize slavery’ by his twisted and tortured reading of the Constitution in Dred Scott.  That his opinion was ultimately reversed by constitutional amendment is no consolation to the hundreds of thousands of young men who died after the Supreme Court shot holes through the Constitution.  It is fitting to speak ill of the dead when they committed acts of infamy.  Taney wrote an infamous opinion in Dred Scott, and no later judgments of his judicial ‘greatness’ can remove that stain from the Court’s history.” (184)

Irons also does his best to define what “partisanship” meant in the 19^th century, but I must confess that I still find what the parties stood for to be confusing:

“(The change in party labels requires a brief digression to avoid confusion.  The Federalists changed their name to the Whig Party between 1836 and 1856, when they became the second Republican Party, adopting the name of their former opponents.  The Jeffersonians who first called themselves Republicans abandoned that name in 1828—after using the hybrid title of Democratic-Republican for several years—to become the Democrats.  If this sounds confusing, it is.  But the nineteenth century saw a proliferation of party labels, including Free-Soil, Liberty, Union, American, and Anti-Mason.)” (122)

The next major point the book takes on is Plessy v. Ferguson.  This will be more useful than the coverage on the Dred Scott case because it is arguably more infamous for its precedential value.  (Irons also covers the Yick Wo v. Hopkins case and explains its facts quite well.) While the story of Homer Plessy is not quite as entertaining as that of Dred Scott, it is interesting to know that he could “pass” as a white man and that he actually wanted to get arrested so that he could challenge the separate accommodations for whites and blacks at the time.  Here, Justice John Marshall Harlan is the only dissenter in the case, and he emerges as one of the more noteworthy Justices and not just because his grandson would take up the post 44 years after he retired.  Again, Irons turns a critical eye on an apparently “liberal” justice that is worthy of praise:

“The notion of a ‘color-blind’ Constitution has enormous appeal as a guiding principle.  But there are dangers in substituting slogans for hard, realistic analysis.  Harlan’s famous sentence [‘Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.’] has been ripped from its context by those—including Supreme Court justices—who have wielded it in recent years as a weapon against affirmative action and other ‘race-conscious’ remedial laws and programs.  Those who quote the ‘color-blind’ sentence invariably fail to quote the sentences that preceded it in Harlan’s opinion.  ‘The white race deems itself to be the dominant race in this country,’ he wrote.  ‘And so it is, in prestige, in achievements, in education, in wealth and in power.  So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.’
Harlan stated in these sentences the reality of race in 1896.  Whites held the reins of power, which they used to whip blacks into submission.  Harlan does not deserve scorn for acknowledging this reality, however much it reflected the ‘pride of race’ that he celebrated.  He had no more desire for ‘social equality’ with blacks than Justice Brown.  He was, after all, a man of his times, the son of slave owners and a man of superior prestige, education, wealth, and power.  But he was not a racist like Chief Justice Taney.” (230-231)

Irons makes a similar point about Abraham Lincoln, quoting from a speech where he says that he is not for social equality with blacks, though he is definitely against slavery.  This is surprising and some of these glimpses into the realities of the times are another factor that make this book worth reading. 

However, around this point, Irons switches his focus to the First Amendment, and Oliver Wendell Holmes, Jr. and the Schenk case in 1917.  He focuses on the “incitement” cases during World War I in First Amendment jurisprudence for quite a while, perhaps because of his own skirmishes with the law in the 1960s.  While this coverage is good, it is at this point that the Court’s decisions began to speak more for themselves than coverage on them.  There is quality coverage on Holmes as one of the greatest Justices in history, and also Louis Brandeis.  But, at least in my course in the First Amendment, our professor covered these cases in such fine detail that Irons’s descriptions amounted to little more than a nostalgia trip. 

He does cover the New Deal cases in excellent detail—the Schecter Poultry v. United States, West Coast Hotel v. Parrish, and National Labor Relations Board v. Jones & Laughlin Steel Company cases are quite important in defining the contours of the Commerce Clause, and law students are likely to find Irons’s emphasis of the importance of these decisions useful.  But it is also at this point that I began to lose interest in the book and “went through the motions.”  Of course, I was excited for the year 1939:

“Born in Minnesota in 1898 and raised in Washington state, William O. Douglas went east as a young man to Columbia Law School, where he taught after graduating at the top of his class [Not exactly—see Wild Bill review].  He moved to Yale’s law faculty in 1928, joining the ‘legal realists’ who looked behind judicial doctrine to explore the social, political, and economic forces that shaped the law.  Douglas staked a claim in the growing field of public and corporate finance, and Roosevelt picked the young professor to head the Securities and Exchange Commission.  Word got around that Douglas was a card shark, and he soon became one of the president’s ‘poker buddies’ and a New Deal insider.  Ironically, the only four senators who voted against his confirmation opposed Douglas as a ‘reactionary tool of Wall Street.’
William Douglas joined the Court at forty, the youngest justice since Joseph Story.  He stayed for thirty-six years, the longest tenure of any justice.  Douglas came to the bench without a well-defined judicial philosophy, and left as he came.  Much like the woodsman he was, Douglas avoided the beaten path and blazed his own trail.  Raised in poverty and struck by polio as a child, he developed a visceral sympathy for society’s ‘outcasts,’ including Communists and criminals.  He shared Frankfurter’s expansive view of due process and Black’s ‘absolutist’ devotion to the Bill of Rights.  Douglas was often criticized for failing to articulate a coherent judicial philosophy.  Certainly he never followed the narrow—but divergent—path from which Frankfurter and Black rarely strayed.  But there was an animating principle behind the twelve hundred opinions Douglas wrote over more than three decades.  ‘Our starting point has always been the individual, not the state,’ he wrote in 1958.  However far he wandered from the beaten path, Douglas never lost sight of his judicial lodestar.” (328-329)

So I really cannot complain about the coverage of Douglas, except that it is short and mentions nothing about his personal life.  There is also a nice quote about Justice Brennan:

“Perhaps the warmest tribute came from a former law clerk, Richard Posner, now a notably conservative federal judge.  Justice Brennan’s lasting influence, Posner wrote, stemmed less from his ‘commitment to a doctrine’ than from ‘the emanation of a warm, generous, and good-hearted person.’” (474)

There is not much else I can say about this book.  I think I have made my points relatively clear.  There are better books to read about the Court in the 20^th Century, but I have not read anything as compelling as this on the 18^th and 19^th century Court (though I have not been very interested in reading anything about it also).  Irons chief focus seems to be racism and later on, affirmative action programs, sprinkled in with the two major gay rights cases in 1986 and 2003.  He ends in 2006, largely focusing on the Guantanamo Bay cases, and barely mentioning Chief Justice Roberts and Justice Alito.  As I mentioned in the review for How Judges Think, this book may be due for a revision.  It is unfortunate that Irons does not mention Buckley v. Valeo, but any description of the Court that includes 2010 will include Citizens United and any mention of that case requires reference to Buckley.  This book was already revised once, however, and it is unclear that much could be added, though the opinions handed down by the Court this past summer certainly fall in line with Irons’s predictions regarding the path of gay rights.  Jeffrey Toobin did an excellent job on Citizens United and the Affordable Care Act Cases in The Oath so there is at least good reading material out there.  Irons work as a scholar of the “ancient history” of the Court is what makes this book most special, and though I have not read Zinn’s famous volume, I am sure this stands up alongside it fairly well. 

How Judges Think - Richard A. Posner (2007)

Oeuvre rule: I have read dozens of judicial opinions by Judge Posner of the 7th Circuit and almost every one of them has been a good read.  I even remember reading one obscure bankruptcy decision which was very entertaining because he went out of his way to highlight the frivolity of the litigant's claims.  He has been a federal judge for more than 30 years.  He has written a formidable number of books and law review articles.  His name is synonymous with "economic analysis" and "law."  He was made to serve on the Supreme Court, but was never nominated because he could not be counted on to "vote along party lines."  He also teaches at the University of Chicago Law School and blogs at http://www.becker-posner-blog.com/.

Last year I applied to be his law clerk.  I applied to about 100 other judges.  Almost all of them sent rejection letters.  A couple actually sent invitations to interview.  Judge Easterbrook (Posner's colleague on the 7th Circuit) sent a postcard rejection.  Posner was the only judge who failed to respond.

And who could blame him?  After all, I sent him my rejected 40 page note on the plight of temporary workers in the wake of the Great Recession, and added, at the end of my mail-merged cover letter, that I was a huge fan of his.  I've heard he likes to have clerks with backgrounds in engineering and science.  So I completely understand.  And I would not be so petty as to criticize How Judges Think based on the mere failure of a response.

But this is not going to make the "best books of Flying Houses" list for one reason and one reason only: it has very limited appeal for a mass audience.  This book is made for law students, professors, law school administrators, judges, lawyers, and anyone who has been faced with the thankless task of poring over law review articles.  Occasionally, it is interesting enough for lay readers, but the proof is in the acknowledgments:

"I have incorporated material from the following articles of mine, though with much revision and amplification: "The Role of the Judge in the Twenty-First Century," 86 Boston University Law Review 1049 (2006) (chapters 3 and 4); "Judicial Behavior and Performance: An Economic Approach," 32 Florida State University Law Review 1259 (2005) (chapter 5); "Reasoning by Analogy," 91 Cornell Law Review 761 (2005) (chapter 7)...." (379)

And six other articles.  So while yes, Judge Posner is an extremely hard worker and probably one the most (if not the most) prolific writers in the history of American law, it appears that he writes his articles with an eye towards incorporating them into a book (though I did read one funny article by him called "Goodbye to the Blue Book" that may not have found its way into a book).  As one recent law graduate told me when I was a 1L, "Posner writes with an eye to being published in casebooks."

Posner begins the book by discussing 9 theories of judicial behavior (attitudinal, strategic, sociological, psychological, economic, organizational, pragmatic, phenomenological, and legalist) and whether judges's decisions are best explained by the political preferences they bring to their cases, largely focusing on the idea that "liberal" judges are appointed by Democrats and "conservative" judges are appointed by Republicans.  Some of this is confusing because it may be difficult to say what separates a "liberal" decision from a "conservative" one.  Of course there are easy cases like Goldberg v. Kelly (a Justice Brennan-authored decision requiring evidentiary hearings prior to the termination of public assistance benefits) and Citizens United (a Justice Kennedy-authored decision allowing corporations to make virtually unlimited expenditures in the area of campaign finance), but as noted in my previous review, certain areas such as criminal procedure do not always allow for such neat "left/right" categorization.

Posner then goes on to discuss the judge as a labor-market participant.  While Posner's reasoning on the matter is sound, it underscores how esoteric this book can get:

"Each bit of information the judge received that bore on that truthfulness [of a witness] would be likely to alter his prior probability [a pre-inquiry estimate of a witness's truthfulness], but not erase it; the prior probability would affect the posterior probability [a post-inquiry assessment of a witness's truthfulness], as in Ω(H/x) = p(x/H)/p(x/~H) x Ω(H), the simplest version of Bayes's theorem.
Ω is odds; the left-hand side of the equation is the posterior odds that some hypothesis, H, is true; the last term on the right-hand side of the equation, Ω(H), is the prior odds; x is the new information obtained in the course of the inquiry; p is probability, and p(x/H)/p(x/~H), the first term on the right-hand side of the equation, is the ratio of the probability that x would have been observed even if H was false (~H). (So if those two probabilities were the same, the new information would not alter the odds; it would be a case of multiplication by 1.)" (66) (brackets mine)

While I may have made that more confusing with my bracketing, it was the simplest way I could sum up what is unquestionably the most unreadable portion of the book.  Thankfully, Posner does bring it down to a more human level:

"Suppose the hypothesis is that the witness--let us say the plaintiff in a sex discrimination suit--is testifying truthfully, and that before she begins to testify the judge sets (almost certainly, unconsciously) the odds that she will be telling the truth at 1 to 3, which is equivalent to a probability of 25 percent (1 out [1+3]).  She testifies, producing new information, x.  Suppose the probability that x would be observed if she was telling the truth is .6, that while the probability that it would be observed if she was not telling the truth is .3, so that the ratio of the two probabilities is 2.  When this "likelihood" ratio is multiplied by the prior odds of 1 to 3, the result is posterior odds of 2 to 3 (1:3 x 2 = 2:3), which is equivalent to a 40 percent probability (2 out of 5) that the witness is telling the truth." (66)

I will not comment any further on Bayesian theory.

I could go through the rest of the chapters and summarize what each one is about, but that would be boring and a needless waste of time.  You may read the Introduction or the Conclusion to the book if you would like a bite-sized morsel of it.  Like any good law review article, it is systematically and structurally precise.  Posner does not exactly come out and say, "I am a pragmatist," but it seems clear that he favors the "pragmatic" behavioral model of the judge over the others.

Sadly, as I often mention when discussing Vladimir Nabokov's thoughts on Thomas Mann, Posner does not have kind words for my favorite Supreme Court Justice:

"Law is a methodologically conservative profession, and 'bad boy' rhetoric such as [Jerome] Frank's advocacy of psychotherapy for judges or Fred Rodell's proposal that the practice of law be made a crime and courts be replaced with administrative agencies including a 'Killing Commission to apply its laws about what are now called murder and manslaughter,' like the antics of the 'crits,' ensured that these scholars would not receive a fair hearing.  That the only avowed legal realist to become a Supreme Court Justice--William O. Douglas--flouted perfectly sensible norms of judging (FN 46) also helped to give realism a bad name." (112-113)
("Here is a sampling of criticisms of Douglas--none by conservatives.  'His [Douglas's] opinions were not models; they appear to be hastily written; and they are easy to ignore.'  L.A. Powe, Jr., 'Justice Douglas after Fifty Years: The First Amendment, McCarthyism and Rights,' 6 Constitutional Commentary 267, 269 (1989).  The carelessness of Douglas's opinions was rooted in his 'indifference to the texture of legal analysis, which arises from an exclusively political conception of the judicial role.' Yosal Rogat, 'Mr. Justice Pangloss,' New York Review of Books, Oct. 22, 1964, p.5.  'Douglas was the foremost anti-judge of his time.' G. Edward White, 'The Anti-Judge: William O. Douglas and the Ambiguities of Individuality,' 74 Virginia Law Review 17, 80 (1988).  Douglas 'refus[ed] to judge in tax cases.'  Bernard Wolfman, Jonathan L.F. Silver, and Marjorie A. Silver, 'The Behavior of Justice Douglas in Federal Tax Cases,' 122 University of Pennsylvania Law Review 235, 330 (1973))." (FN 46)

Posner is generally a very witty writer, but it can be difficult at times to mine through the seeming intellectual elitism of his prose to realize that what he is writing is actually funny.  But other times, he frames the law in a way that laypersons will understand:

"Versions of judicial modesty include [James Bradley] Thayer's principle that statutes should be invalidated only if they are contrary to any reasonable understanding of the constitutional text and Holmes's 'can't helps' or 'puke' test: a statute is unconstitutional only if it makes you want to throw up." (288)

I will make one final point about How Judges Think: while it is probably going to attract little interest from those outside of the "profession," it is good reading for law students, and it will probably be slightly more interesting than your average law review article or casebook reading assignment.  Most law students will probably find the final section of the book, where Posner discusses the political nature of the Supreme Court, to be most entertaining.  He gives brief (but always intriguing, given the level at which his mind is operating) remarks on most of the Justices then sitting in 2007, and delivers a pretty thorough review of Justice Breyer's book Active Liberty.  He also criticizes Justice Kennedy's constitutional philosophy:

"Justice Kennedy's opinions in Lawrence v. Texas (the homosexual sodomy case) and Roper v. Simmons [the juvenile death penalty case] make only limited efforts to ground decision in conventional legal materials.  They could not do more, operating with nondirective constitutional provisions and in the teeth of adverse precedent.  They are appeals to moral principles that a great many Americans either disagree with or think inapplicable to homosexuals or juvenile murderers.  The approach is consistent, however, with the judicial philosophy that Justice Kennedy expressed in the interview from which I quoted in chapter 9, when he said that 'all of us have an instinctive judgment that we make...You make these quick judgments...Judges do the same thing...But after you make a judgment, you then...have to see if that...accords with your own sense of ethics and morality.  And...[you have to understand] that you have the opportunity to shape the destiny of this country.  The framers wanted you to shape the destiny of the country.  They didn't want to frame it for you.'  This is the most powerful judge in America speaking, and, if we may judge from his decisions, meaning what he says--that the framers of the Constitution wanted Anthony Kennedy to shape the destiny of the country in accordance with his own sense of ethics and morality, though it strikes many as quirky." (310-311) (first brackets mine)

While the book reads fairly well from beginning to end, its genre likely falls into "legal theory," and so most readers may pass a chuckle when Posner goes off for five pages about Chief Justice Roberts's "umpire analogy" to judging, but few will stick it through to the end.  Through no fault of its own is the book dated (there are at least four major cases, involving Anna Nicole Smith, the Affordable Care Act, Campaign Finance, and gay marriage, on which Posner likely has something to say), but it is one that is a prime candidate for a "new edition." 

Posner opens up the book with an exclamation point--one of the few in the text--and closes on a powerful salvo, which nicely summarizes his raison d'être:

"For that recognition [that legalism is not the path to reform] to take hold, however, will require a change in the way in which law is taught in law schools.  Realism about judges is sorely lacking there.  Law is taught as if judges were second-class professors, professors manqué--legal analysts lacking the specialized knowledge of the law professor.  The motivations and constraints operating on judges, and the judicial mentality that results, are ignored, as if judges were computers rather than limited human intellects navigating seas of uncertainty.  As a result students are not taught how to present a case to a judge in a way that will strike a responsive chord.  The curious judicial passivity that results from judges' being accustomed to simply decide whatever is brought to them to decide, rather than to initiate anything, has made most judges shy about telling lawyers how they should be presenting cases to maximum effect, thus helping themselves by helping the judges.  The nation needs a better bridge between bench and bar, and its construction must be largely the work of the law schools." (377)

Ultimately that is who will get the most out of this book: law school administrators and practicing lawyers.  While it is highly doubtful that every judge possesses as masterful an intellect as Posner's, I am sure they would find many of his comments to be accurate.  I am sure that by reading this book, and taking out some of the "pro tips" he offers, one could become a better attorney.  Or you could at least learn how not to screw up an amicus curiae brief if you happen to teach at Yale.  

Anna Karenina - Leo Tolstoy (Transl. Richard Peaver and Larissa Volokhonsky) (1877)

I am very pleased to present our newest writer on Flying Houses, Juan J. Perez.  He has reviewed a book for me that is somewhat famous.  I openly admit that I am a tyro when it comes to Tolstoy.  I have read part of The Death of Ivan Ilyich, but I have generally favored the Russian writers that adopted America as their new homeland.  I do not know very much about the political climate in Russia in 1877, but I am guessing this book reflects it accurately.  This review, on the other hand, focuses on matters of the heart, or the "doomed romance" aspect of the novel.  Juan has written an excellent review, and if he feels up to it in a few years I will welcome a review of War and Peace.

“All happy families are alike; each unhappy family is unhappy in its own way.” So begins what Leo Tolstoy was to call “his first novel” with a sentence that has been oft-quoted since its creation. Anna Karenina is truly in a realm of its own. It’s almost akin to a soap opera in that one finds it impossible to take their eyes off the drama unfolding. The comparison might sound insulting to some, but it is only the lowly opinion of a literary fledgling penning his first review. The particular version that is going to be discussed is the translation done by Richard Pevear and Larissa Volokhonsky. If the reviews on the jacket are to be believed, it is a superb translation a cut well above the rest. Still, the main reason it found itself in my book bag was not because of the glowing reviews or even the acclaim the story itself has received, but rather, my desire to educate myself on the classics which with high school had neglected to acquaint me. The English classes in my curriculum were more focused on sending students out of class for juvenile behavior than on Romeo and Juliet or The Great Gatsby. Shakespeare was enjoyed on occasion, but that was on my own, and there was no extent beyond that. That is what led me to peruse the aisles of my local library and grab Anna Karenina without a second thought.

While having heard the name in passing often enough, Tolstoy was very much an enigma to me—something similar to a shadow undulating in my peripheral vision. The introduction in this version gave an enlightening apercu on Tolstoy, his work, and, most importantly, the novel in question. Anna Karenina was written amidst a time of great questioning in Russia. Many publications advocated for ideals such as sexual freedom and communal habitation. Women’s education, enfranchisement, and role in public life were very much debated. As Pevear states, “On all these matters Tolstoy held rather conservative views. For him, marriage and childbearing were a woman’s essential tasks, and family happiness was the highest human ideal….An intentional anachronism, his novel was meant as a challenge, both artistic and ideological, to the ideas of the Russian nihilists.” (ix) Yet, although he essentially despised adultery, Anna was not portrayed unsympathetically.  In fact, Tolstoy’s wife wrote that he had “envisioned the type of a married woman of high society who ruins herself. He said his task was to portray this woman not as guilty, but as only deserving of pity…” (xi)

Anna Karenina’s plot revolves around a vast array of characters and settings that is splintered into eight parts. Part One introduces us to the predicament that is the Oblonsky household. Stepan Arkadyich has been caught having an affair with the family’s former French governess by his wife, Dolly. Despite his best attempts, he is unable gain her forgiveness. He desperately turns to the visit of his sister, Anna Arkadyevna Karenina, as his only hope for salvaging his marriage. Ironically enough, while Anna does indeed convince Dolly to forgive Stiva (Stepan) and take him back, it is this very visit from St. Petersburg to Moscow that introduces her to her folly, Count Alexei Vronsky, a young and handsome officer who is very well regarded in society. It is also during this time that Stiva’s childhood friend, Konstantin Levin, has come to Moscow with the intent of proposing marriage to Stiva’s belle-soeur, Kitty. Unfortunately for Levin, Vronsky has also begun courting her, albeit seeing it as a minor flirtation rather than expressing intent for marriage. Due to this, Kitty rejects Levin for Vronsky which sends a depressed Levin back to the country. However, it seems karma plays a hand in this for, as soon as Vronsky meets Anna, he loses all interest in Kitty and is determined to pursue Anna back to St. Petersburg to woo her. This leaves a very distraught and unresponsive Kitty in his wake and the Shcherbatsky family travels to the country in order to try and brighten her spirits. Back in St. Petersburg, Anna finds herself drawn to a different social circle which is radically different from the virtuous and pious one she used to belong to. It is here where she gives in to Vronsky’s advances and begins her deadly dalliance with him. This does not go unnoticed by her husband or other society people, and it commences a whirlwind of adultery, jealousy, and hypocrisy amongst everyone.

The part that most captivated and enraptured me was Part Seven’s finale, where Anna meets her demise. The style that Tolstoy uses to describe Anna’s stream of consciousness during her last moments flows effortlessly and beautifully. One can practically picture themselves in Anna’s position. “What was he [Vronsky] looking for in me? Not love so much as the satisfaction of his vanity,” she ponders. (762) In what this reviewer believes to be one of the greatest internal dialogues ever written, Anna displays her paranoia at her situation, “ My love grows ever more passionate and self-centered, and his [Vronsky’s] keeps fading and fading, and that’s why we move apart…And there’s no help for it. For me, everything is in him alone, and I demand that he give his entire self to me more and more. While he wants more and more to get away from me…He tells me I’m senselessly jealous, and I’ve told myself that I’m senselessly jealous, but it’s not true. I’m not jealous, I’m dissatisfied…If he is kind and gentle to me out of duty, without loving me, and I am not to have what I want—that is a thousand times worse even than anger! It’s hell! And that is what we have. He has long ceased loving me. And where love stops hatred begins.” (763)  Her mind is completely revealed to the reader and all one can do is read on as Anna’s mental state deteriorates, “Ah, a beggar woman with a child. She thinks she’s to be pitied. Aren’t we all thrown into the world only in order to hate each other and so to torment ourselves and others?”(764)

This brings me to a subject often discussed by critics: was Anna mentally ill? While I am not an authority on the matter, as psychology was never a class of mine, I will say that Anna does indeed seem to display characteristics of mania and schizophrenia. In fact, it is my belief that Tolstoy actually alludes to her mental instability with a line from Anna herself, “’No, I won’t let you torment me,’ she thought, addressing her threat not to him [Vronsky], not to herself, but to the one who made her suffer, and she walked along the platform past the station-house.”(767) What follows is the infamous suicide scene which was foreshadowed in the beginning of the book when Anna was introduced, “And the candle by the light of which she had been reading that book filled with anxieties, deceptions, grief and evil, flared up brighter than ever, lit up for her all that had once been in darkness, sputtered, grew dim, and went out for ever.”  (768)

Many will probably disagree with me on this, but the book should have ended there. Part Eight was admittedly a hastily added part, but it detracted from the book for me a great deal. There was little to no closure for Anna’s death in that section and my annoyance at Levin’s “sufferings” tainted my enjoyment of the book. My desire to finish the book from beginning to end was the only reason it was read. It seemed very odd and out of place for Levin to have such conflicts after all that he has endured and gained throughout the story, which only increased my perplexity and vexation at his supposed woes. Despite a rather unsatisfying end for me, Anna Karenina was a greatly enjoyable book to read. My curiosity is sufficiently piqued for me to go and search out Tolstoy’s War and Peace, which many claim is his magnum opus. Let us hope the owner of this blog does not ask me to review it as well. Adieu, my fellow book lovers.

My Beloved World - Sonia Sotomayor

It is appropriate that My Beloved World will be my final post on Flying Houses before I leave Brooklyn Law School.  I expected to put the blog on hiatus for most of law school, but I ended up remaining somewhat prolific and increased its popularity exponentially.  "My Beloved World" refers to Puerto Rico in this book, but my beloved world will be the library at Brooklyn Law School, which I will be sad to leave.  There have been many miserable things about law school, and while aesthetically our library cannot compete with say, Pepperdine's (which features a view of the Pacific Ocean that surely puts it at the very top), I have always felt that there has been such a wealth of knowledge and information here that learning about the "legal aspect" of any topic was within my grasp.  In my case it came in the form of the biographical accounts of Supreme Court Justices--truly the best models one could hope to have in trying to achieve excellence.

Of course, it is extraordinarily unlikely that I will ever be a federal judge, but at the very beginning of this book, Sotomayor assures all that it is okay to dream:

"A student recently posed another question that gave me pause: 'Given that there are only nine Supreme Court Justices, each with life tenure, can anyone realistically aspire to such a goal?  How do we hold on to dreams that, statistically, are almost impossible?'  As I tell in these pages, the dream I first followed was to become a judge, which itself seemed far-fetched until it actually happened.  The idea of my becoming a Supreme Court Justice--which, indeed, as a goal would inevitably elude the vast majority of aspirants--never occurred to me except as the remotest of fantasies.  But experience has taught me that you cannot value dreams according to their odds of coming true.  Their real value is in stirring within us the will to aspire.  That will, wherever it finally leads, does at least move you forward.  And after a time you may recognize that the proper measure of success is not how much you've closed the distance to some far-off goal but the quality of what you've done today."  (viii)

Most striking about My Beloved World is Sotomayor's natural flair as a storyteller.  It is written almost as if it were a novel, and even has a couple of moments of "magical realism" that would not be out of place in a Marquez novel.  However, Sotomayor ends the story when she is appointed as a federal judge in the Southern District of New York in 1992.  Of course many law students and legal scholars will want to hear about Citizens United or Sebelius or other landmark decisions that were heard sufficiently long before publication, but no such treats are offered.  And it is probably for good reason: Sotomayor (like almost all federal judges) is politically savvy.  Later on in the book she rebuffs a colleague's suggestion to join the Republican party in order to have a better chance of nomination, deciding instead to register without any party affiliation.  Of course people view her as one of the "liberal Justices" and for the most part she has lived up to that stereotype.  However, I was quite surprised to read about her feelings on the criminal justice system.  While I am sure that she considers all cases fairly and without bias, I would generally presume that a "liberal Justice" would show slight bias to the Defense, and not the Prosecution.  However, Sotomayor started her career at the New York County District Attorney's Office, and I was shocked to read some of her statements regarding criminal law:

"However caustic, Judge Rothwax was no cynic, though like many a cynic he had been disillusioned, having started his career as a Legal Aid attorney and civil rights advocate before becoming a prosecutor.  That early experience led him to conclude that given all the elaborate protections of the rights of the accused, any defendant whose case eventually came to trial was almost certainly guilty.  In a controversial book, the judge proposed abolishing the Miranda warning and other rules that he believed handicapped the police and prosecutors; he also argued that a 10-2 jury verdict was close enough to unanimous for conviction.  I wasn't prepared to accept his presumption of guilt, though it is borne out statistically: policemen don't normally make arrests on sheer caprice; most defendants do turn out to be guilty.  But a probability of guilt doesn't seem reason enough to revise our standards of due process.  These are designed to protect everyone from the human frailties of those whom we entrust to enforce the state's tremendous powers.  Even if the vast majority of the law's agents exercise these powers scrupulously, it is unconscionable that anyone should pay for a crime of which he was unjustly accused.  Blackstone's famous ratio ('better that ten guilty persons escape than that one innocent suffer') still speaks to a deep-seated sense of what is just." (208)

Thus, Sotomayor covers herself--at least in this regard.  She does offer up some incredible stories and is not afraid to write about sensitive topics.  I would say that this book should be required reading for anybody that would like to be a prosecutor (or a criminal defense attorney, for that matter), if only because she offers valuable tips for success.  It is extremely difficult to argue with Sotomayor: she is wise, and what the book beautifully captures is how she turned her "humble beginnings" into an asset rather than a liability.  But first, two tips for criminal trial attorneys.  The first is emotion:

"Granting myself permission to use my innate skills of the heart, accepting that emotion was perfectly valid in the art of persuasion, amounted to nothing less than a breakthrough.  Warren [Murray] would teach me much else in the way of trial skills, as had John Fried, Katie Law, and others at the DA's Office.  But that was the single most powerful lesson I would learn.  It changed my entire approach to jurors, from the voir dire to the structure of my summations, and the results spoke for themselves: I never lost a case again.  I had hung juries a couple of times, and once or twice a conviction on fewer than all counts of the indictment, but never an acquittal.
Leveraging emotional intelligence in the courtroom, as in life, depends on being attentive; the key is always to watch and listen.  You don't need to take notes with the court reporter getting down every word.  Lower your eyes to your pad, and you're bound to miss that hint of a doubt that flits across the witness's face.  Scribble instead of listening, and you won't notice the split second of hesitation in which a witness hedges a choice of words, avoiding the ones that would flow naturally in favor of the ones whose truth he or she is more certain of." (210)

The second is jury selection, debunking a myth that still seems to creep into the minds of attorneys today:

"Other lessons I would figure out for myself, often contrary to conventional wisdom.  Some prosecutors, for instance, would look for legitimate reasons to eliminate black and Hispanic juror candidates in the voir dire, the assumption being that minorities are biased in favor of defendants.  But to me that made sense only if you saw all people of color as potential perpetrators and believed, even more implausibly, that they all saw one another that way, too.  It was obvious to me that any black or Latino who held a job, or went to school, or stay home to care for an elderly parent was likely as law-abiding as anyone in my own family and, if anything, far likelier to be the victim of a crime than to commit one.  The notion that such a person would, on the basis of racial or ethnic solidarity, let anyone walk who might pose a danger to the community would have seemed laughable where I came from.  And so I packed my juries with the kinds of people I'd grown up among; the results, again, spoke for themselves."  (211-212)

While I do not believe this book will get any "bad reviews," it is not perfect (I found two typos: "Riven" instead of "Driven" near the beginning; "judge (last name)").  Some might decry sections of the book as being too "touchy-feely" and lacking in clues to Sotomayor's jurisprudence--but she anticipates this in the preface.  I would have liked to see a section on her decision that ended the Major League Baseball strike in 1994, but perhaps we will need to wait until she retires for her "judicial autobiography."  I must say that I read the book in a week, as "pleasure reading" while studying for the Bar, and was dismayed that she did not devote a single word to her experience of taking it (perhaps some memories are better forgotten).  But while I cannot say it is one of the best books I have reviewed on Flying Houses, it contains unmistakable wisdom, clarity and value.  And I found Chapter 24 to be the single best moment of the book.  Justice Sotomayor indulges in a fair bit of self-deprecation, which is welcome in a book where she has to explain how she achieved such magnificent heights.  She is also extremely funny at times.

In Chapter 24 she describes her life after her divorce from her high-school sweetheart, moving to Carroll Gardens and getting advice from friends on dating, with which she did not have much experience.  She writes about her prospects of giving birth to a child and her life as a diabetic.  She writes about adoption.  She writes about her circle of friends and how they have kept her from feeling alone.

She also writes about smoking:

"I had been a smoker since high school, burning through three and a half packs a day for much of my life.  I made my first serious attempt at quitting in my final year of law school: every time I felt the urge, I ran around the block, often with Kevin and Star chugging alongside in solidarity.  Going cold turkey during exams may sound like a needlessly brutal rigor, but in retrospect it seems less perversely self-punishing than lighting up again two years later when Kevin and I split.  There would be further attempts, using various methods, including hypnosis, but nothing worked for good until I saw little Kiley holding a pencil between two fingers, blowing imaginary smoke rings.  The guilt of endangering the health of a loved one is by far the best motivation I've discovered." (284)

She also writes about Puerto Rico's strange situation as an American territory, but not a State.  I do not know if Puerto Rico will ever become a State, but if it does, I think Sotomayor will be considered an important figure in bringing the issue back to the forefront.  However, her feelings on the matter are somewhat masked:

"Again and again, the conversation returned to the island's political status.  Did we want to remain a commonwealth, with some self-rule and a preferential trade relationship with the mainland?  Half the class believed that was no better than being a colony of the United States, living as second-class citizens.  But if we should aspire to statehood, the full rights of citizenship would come at the price of the full obligations, including a tax burden that, arguably, might have crippled our economy at the time.  Some proposed, with passionate conviction, that full independence was the only way to preserve our culture and the proper dignity of self-determination.  The economic repercussions of each position were as inscrutably complex as they were critical to the arguments.  And for those who are eager to discern my present views on the status question, I can only advise you not to give too much weight to whatever ideas vied for prominence in a young student's mind." (152)

All I can say is that this book really made me appreciate Sotomayor and the contributions she continues to make to our country.  If I ever get the chance to meet her, I will ask her for a hug.  I would imagine she gives amazing hugs.

Here is a clip that perhaps better encapsulates what is so great about her: her willingness to be a public figure and to serve as a role model par excellence:

Batman: Dark Victory - Jeph Loeb and Tim Sale

The cover shows Batman and Robin--Batman with his fist out and Robin carrying a rope.  Dark Victory  is 388 pages long, and the first sign of Robin does not appear until page 235.  Thus the cover of Dark Victory is somewhat misleading: one expects it to be the story of how Robin and Batman met and joined forces, but this is really just a minor tangent of the story.  Dark Victory is best viewed as the sequel to The Long Halloween and, as such, should be compared to it.  For this book does not live up to the standards of The Dark Knight Returns, The Killing Joke, Red Son, or Watchmen--the four graphic novels that I have decided represent the pinnacles of the medium.  It is on par with The Long Halloween, and I would state that it is slightly better, because there is only one inconceivable plot twist at the end, rather than several.

The prologue picks up where The Long Halloween left off--essentially retelling the story of the serial killer "Holiday."  We see Holiday in Arkham Asylum being interviewed by the new Gotham District Attorney, Janice Porter.  Porter wants to reopen Holiday's case on the grounds that the police committed a violation of the 8th amendment in their capture of him (he endured "quite a beating").  Commissioner Gordon does not think this is wise but the D.A does not need his approval to reopen the case.  Batman shows up right after and Gordon says, "I miss him."  Batman says, "Don't."

Chapter 1, "War" recreates a scene that is by now, more than familiar: Batman's origin story.  However we also see Carmine "The Roman" Falcone tell a young Bruce Wayne that his father saved his life, and that if he ever needed a favor, he knew who to call.  We then see a major character in Dark Victory, Sofia Falcone Gigante, "The Roman's" daughter.  Members from another crime family, the Maronis, are present in this sort of funereal ceremony.  Batman is watching and Selina Kyle is inside.  The place gets busted up, but nobody "big" is captured by Gordon.  We then see Selina Kyle visit Bruce Wayne while he is swimming in his pool, accompanied by another member of the Falcone family.  We then see Janice Porter visit Gordon again:

"District Attorney Janice Porter.  As a result of Harvey Dent's removal from office, the City Council moved quickly to replace him.  Harvard Law, top of her class.  Six years as D.A. in Boston.  A lot of experience in a short amount of time.  But Boston is not Gotham City." (35)

So at least we know that (it's not Chicago, either, which is where Gordon came from).

We also see the Gotham City Bridge on page 42 and it looks a lot like the Brooklyn Bridge.  Also, remember a key scene from The Dark Knight Rises--Gotham City is unmistakably New York City.  And it is with deep regret that I must take a moment from this review and state that I will not be able to  film Batman in Brooklyn because I will be leaving this place in about a month.  It is with a very heavy heart that I announce this, but instead we will have to move forward with Back to the Future Part 2: Present, which will star my younger brother in Michael J. Fox's multiple roles in that film, and I will play Doc.  If anyone wants to make Batman in Brooklyn, however, I will gladly help to produce the film and help with the screenwriting.  Moving on...

Shortly after this (still on "War") it is Halloween night--the one year anniversary of "The Roman's" death.  Amazingly, we see Batman visit Two-Face in Arkham Asylum, during which mayhem ensues.  Poison Ivy makes an appearance, "Holday" stays in his cell even though the glass has been shattered, and Two-Face escapes.  Then, the scene shifts to a courtroom, where Judge Harkness allows "Holiday" to be kept under house arrest with an electronic monitor kept on his leg at all times.  Then we see that one police officer has been hanged, and many of Harvey Dent's files have been stolen from the D.A.'s office.  Attached to the hanged policeman's chest is a note, with a drawing of the children's game Hangman:

"N_NE _F Y__ _RE S_FE" (64)

The next chapter, "Secrets" involves Batman's attempt to solve the riddle by asking, who else, The Riddler.  We then see what happens to former Commissioner Loeb.  At this point, I am going to stop with the plot retelling because I do not want to spoil the rest.  Suffice to say that The Long Halloween is about a series of unsolved murders of members of crime families, and Dark Victory is about a series of unsolved murders of police officers.  In a sense this makes it like Year One, but that is more about Batman's first forays into crime-fighting and police corruption.  Dark Victory is sort of like all of these books mashed up into one--with Robin as the defining element, as noted on the cover.

All villains in the rogue's gallery make appearances: Poison Ivy, Joker, Catwoman, Riddler, Two-Face, Solomon Grundy, the Calendar Man, Scarecrow and notably, Mr. Freeze.   But this is really about the crime families.  And it is really about The Long Halloween, or a new way to interpret that book.

There is a great scene where Harvey Dent represents himself in court, and when asked if he swears to tell the truth he says, "I can't answer that question...because I'm not Harvey Dent.  The name is Two-Face."  (304)

There is also a nice little tidbit that Janice Porter went to Gotham University Law School while Harvey Dent was a young professor there, and that she transferred to Harvard.  In her Harvard yearbook it reads "Voted most likely to be D.A.  Favorite subject: criminal law."

Brooklyn Law School will not be putting out a yearbook this year, sadly.  I would like to put this under my picture if it did: "Voted most likely to be the first Supreme Court justice with a mediocre performance in law school; favorite subject: bankruptcy."  Of course our school does not take such votes, probably because few people know a majority of their 477 classmates.  Harvard is even bigger, and I would be interested to know if they publish such a yearbook (I have my doubts).

Before we conclude, it is worth noting in passing that Batman "sees himself" in Robin and initially is not really cool with the idea of having a sidekick.  Mostly we see Alfred supervising Dick Grayson (who is about 13--maybe slightly younger than his female version in The Dark Knight Returns), but Batman does offer a few words:

"Dick Grayson has been living in Wayne Manor.  It has been a...difficult transition.  For both of us.  And I cannot help but wonder if I have made a mistake by interceding in the boy's life.  My attention has been splintered.  I will find out who killed Dick's parents.  He needs that closure.  But, tonight is a holiday and I am needed elswhere." (264-265)

Later, Batman reveals his true identity to Dick Grayson and it signals the moment in which their partnership will begin.

That's most of what I wanted to say about this book.  It's a quality read (and as always, the illustration is fantastic) but it's not an example of the height of the genre.  There may be still another sequel to this book (Haunted Knight?) and I would gladly read it, though I would not have high expectations.

As a final note I do not think the Superman franchise was catapulted into the same league as the Batman franchise by its most recent film.  I did not see it, but the popularity at the box office is the barometer by which I measure the popularity of the superheroes.  Red Son should be made into a movie--THAT would be AWESOME.  But I don't think the world is ready for that yet.

The Long Halloween and Dark Victory could be made into movies, but they'd be too complicated.  And  I recently watched an animated film of Batman: Year One which was a very faithful and quality adaptation of the book.  But I don't think there's enough material for a movie--or at least people might not be as interested in it, because I really believe Jim Gordon is the protagonist of that book, and not Batman.  Still (since Batman in Brooklyn is on indefinite hiatus) The Dark Knight Returns could be made and I have very little doubt that it would do every bit as well at the box office as any of the three recent films (if not better).

Negligent Infliction of Emotional Distress #24: Farewell (Ode to the Napping Room)

Negligent Infliction of Emotional Distress #24: Farewell (Ode to the Napping Room)

By Christopher J. Knorps

“Is this thing on?
Can you hear me now?
Are we going?
Is this thing on?
Test, test, test, test, test, test...
Can you hear me now?

As we come to the close of our broadcast day
This is my farewell transmission
Signing off

Mr. and Mrs. America, and all the ships at sea
Anyone within the sound of my voice
I've got 50,000 watts of power
I want to ionize the air
This microphone turns sound into electricity
Can you hear me now?
Out on route 128, the dark and lonely
I got my radio on
Can you hear me now?
Can you hear me now?
Can you hear me now?
Can you hear me now?
It's the end of radio

And that snare drum
That drum roll
Means we've got a winner!
If you're the fifth caller
Or any caller at all... 

Welcome to my top ten
I'd like to thank our sponsor
But... we haven't got a sponsor!
Not if you were the last man on earth….
She was prepared to prove it…
This one goes up to a special girl
But... there is no special girl!

It's the end of radio
The last announcer plays the last record
The last watt leaves the transmitter 
Circles the globe in search of a listener
Can you hear me now?
Can you hear me now?
Can you hear me now?

Is this really broadcasting if there is no one there to receive?
It's the end of radio
As we come to the close of our broadcast day

I got my radio on
Can you hear me now?
Can you hear me now?
Can you hear me now?

This is the test 
If this had been a real emergency...
Hey, hey,

This is a real god damn emergency!”
-Shellac, “The End of Radio”

I.                     Introduction

When I started this column back in February of 2012, I took my cues from “Notions to Dismiss” by Michael Berman (for the name of the column) and “Legally in Love” by Lizzie B. (for the “sexiness” of the juicy gossip floating through our school—and yes, I think people still want to know who Lizzie B. was), but I had no idea I would complete 24 articles.  Before we go any further, I want to thank Steven Hasty for clueing me into the Advocate, Julie Adler for being the best editor I have ever  had, and Dwayne Thomas for allowing me to continue to express myself, as well as keeping me on guard when I would fall off the rails.

I wrote this column because law school is not great, but it has so much potential to be great.  I wrote this column because people seemed miserable here, and I sought to enumerate the reasons why.  There may be more than 24 reasons (and I fully admit that the topics of my columns have sometimes overlapped—See the multiple columns discussing the “50/50 Rule,” now the “60/40 Rule”) but I have done my best to give any prospective or current law student a road map of the pitfalls of legal education.

I would also like to note that I received significantly more “hate mail” when I was a 2L, but that now, as a 3L, with my columns becoming arguably more and more esoteric, few people ever comment on them.  This is either because (a) I am obsolete, or (b) the haters have realized the error of their ways. 

I may very well be obsolete.  I was not named our class commencement speaker, but I did not compete for that position.  This happened in high school too, you know.  I made an audition to be class speaker, and the class clown ended up getting it.  It was fine by me, and I just wrote my own “commencement speech” into an article in The Log at Loomis Chaffee.  I am not doing that here.  I am offering the ultimate NIED.  Welcome to my top 10.

II.                  Top Ten Classes

#10: Contracts (Prof. Winnie Taylor)

                While I did not do well in this course (B-), and while I sat in the way back row of the classroom (top left) and was doomed to failure by anxiety and the belief I still hold that Contracts is one of the hardest classes in law school and should actually be taken over both semesters for six credits (as Prof. Taylor also believed), the reading was always a pleasure (go figure!).  Perhaps it was in this course that I realized I wanted to take a curriculum in Business Law (which may have decimated my GPA, but which I believe was worth it—at this juncture at least), but most importantly, this was a 9:00 AM class which met three times a week.  There was a ton of reading and I didn’t put it into a good outline, but Prof. Taylor brought so much energy into the classroom everyday that I couldn’t help but pay attention.  I may not have done well in the course, but I will always remember her writing “POOR BLACK WIDOW” on the chalkboard, and the way she would say, “Oh boy!”

#9: Administrative Law (Prof. Araiza)

                I did reasonably well in this course (B+) and I sat in the middle on the right side with a couple friends that helped keep me on track—but they weren’t totally necessary: Araiza is an excellent professor.  This course sounds boring, and sometimes it is a little boring, to be honest, but its importance is adequately understood: the “headless” fourth branch of government probably has more impact on our everyday lives than any of the other “big three.”  There are also sometimes fascinating cases that branch off into many different areas of the law.  My favorite case was the Cinderella case, and I will never forget the feeling of knowing the material so well, but knowing that I would not be at the top of the class because there were so many other top students in it, and because Araiza was just that good of a teacher.

#8: Trusts & Estates (Prof. Serkin)

                I did reasonably well in this course as well (B+) and I sat in the second row (which became my de facto seat during 3L year).  Serkin lived up to the hype.  Unfortunately there appears to be a joke that can be made about the SBA Transition Dinner: whoever wins faculty of the year also wins “faculty most likely to leave BLS.”  While many may be sad that they will not have the opportunity to take a class with Professor Serkin, I cannot fault him for wanting to move to Tennessee, for it is a great state that still remarkably flies under the radar.  This was a fun course to take, and the casebook certainly made things interesting.  By far, from all the classes I took, this had the most bizarre casebook (the footnotes alone made me feel like the writers were constantly getting stoned and just telling the ridiculous stories behind the cases—or giving their opinions on James Lipton—because they realized how boring the material could be otherwise).  Serkin also recommended we watch The Art of the Steal, which is a great documentary and served as a nice “study break” (watch for the one scene near the beginning where an art appraiser walks through a gallery and is like, “Oh, Barnes would never get this, this is terrible,” and later says it is impossible to quantify how much the Barnes collection is worth—perhaps billions(!)) as we studied charitable trusts near the end of the semester.  I didn’t learn the intestacy regimes as well as I should have, but I felt the final was one of the “fairest” I have ever taken, and I feel that Serkin taught this course almost masterfully.

#7: Employment Law (Prof. Minda)/Debtors’ & Creditors’ Rights (Hon. Martin Glenn) (tie)

                Most of my classmates from these courses must think I am crazy for putting them in the top ten, but Employment Law gave me the highest grade I received in a 3 credit course (A—and though the results are not yet in from this year, I’m not optimistic) and Elizabeth Warren wrote the casebook for Debtor/Creditor and it was the best one I studied in law school.  Employment Law was a fascinating area to study and I am glad I read From Widgets to Digits and also glad I wrote a paper in lieu of a final exam (the only time I got to do that).  Debtor/Creditor was a tough class, and made tougher by a Judge-Professor taking on the MF Global case around Halloween, and though I may not have done well on the final, nobody did, and I got a B+.  So I think it was the only time a really hard final worked in my favor.

#6: Constitutional Law III: First Amendment (Prof. Araiza)

                Araiza gets two mentions, but this course ranks higher because it has some of the most fascinating jurisprudence of the Supreme Court.  It was in this course that I finally realized Justice Douglas was my favorite of them all, and that I should try to live up to the standards that he set for himself.  Araiza never talks about his clerkship on the Court, but it hung out there in the back of my mind, and I wanted badly to ask him about all the things that happened while he was there, but I understand if that must be kept confidential.  Regardless, hearing his eminently reasonable and incisive interpretations of the Court’s opinions was a true highlight, and I bemoan the fact that I will never be able to take a course with him again.  Not only was he a good professor—he was a good person, and made himself more available to students than any other professor I had.  I will never forget him saying, “Pardon my language, but I’m just quoting: ‘We’ll take the fucking street later!’” or the last time a group of us sat in his office and discussed how obscene internet videos had to get before the Court would say they fell outside the protection of the First Amendment. 

#5: Evidence (Prof. Pitler)

                This is another one that a lot of my classmates might disagree with, but Pitler did not try to pull any tricks.  He told us that if we just did the problems, we would do well.  And I did.  While I only got a B+ on the exam, he told me he boosted me to an A- because I came into every class prepared to offer up my answers to the problems he had assigned.  I appreciated that there was very little reading.  Also, Pitler delivered a stirring lecture in our final class on the Crawford case and the Confrontation Clause that was one of the most entertaining and informative talks I have ever attended.  The school should have video recorded that class, because it was a definite highlight for me.

#4: Criminal Procedure (Prof. Baer)

                Professor Baer warned me that if I took Crim Pro with her, she would “kick my butt.”  She “kicked my butt” in Corporations (giving me a B, while admitting I earned a B- on the exam, but participated well in class and therefore got boosted) even though I appear (very briefly, and in a friend’s beret!) on the school’s website in a video from that course.  It was not a bad course, but I bemoaned her use of Powerpoint.  She did not use Powerpoint in Crim Pro, and this was easily one of the most fascinating courses in law school.  The reading was usually quite interesting (some people call it Con Law IV because it is all Supreme Court opinions) and Prof. Baer always assigned a reasonable amount of reading for each class.  I never felt overwhelmed and felt that she used her time in class very effectively.  And I do not think she will kick my butt, because I took the course pass/fail (and update: I passed).

#3: Interviewing & Counseling (Prof. Schultze)

                Everybody should take a class with Prof. Schultze.  He is a popular professor, and for good reason: there really is not much work to do.  This is a 2 credit class.  But it can be a little bit stressful when you are on the chopping block!  Prof. Schultze could have his own reality show based on his classes.  While the class was easy, it was also fun and useful—learning how to appropriately approach clients is a fine art, and it is one skill that I will leave law school believing I have learned well.

#2: Business Reorganizations (Prof. Gerber)

                Also known as “Debtor/Creditor Part 2,” this was a fun 3 credit class to take, and Prof. Gerber is one of the best at BLS.  I will never forget his drawings of pies to represent chapter 7 and buche-de-noels (or twinkies) to represent chapter 11 (and I am sort of sad I missed taking the class after Hostess declared bankruptcy) and his drawings of pigs to represent banks, nor his mentioning that his brother wrote the comic book Howard the Duck or that he went to high school with Sheldon Toibb.  While the course can sometimes be challenging, Prof. Gerber always made it comprehensible through his classes, which blended lecturing and calling on volunteers.  He did not try to “trick us” on the final, and I was very pleased to get an A- in that course—it is one of the grades that I am most proud of in law school.  It was also through this course that I found my “dream area of practice” and at least got a shot at a couple bankruptcy judge clerkships.  I didn’t get them, but Prof. Gerber made time to help me try.  Also, it is perhaps worth noting that I sat in on his Contracts class in the Spring of 2010, and that it was the best class I attended at any of the law schools I visited, and that his style and presence as an “interim Dean” made me feel reasonably secure (not totally secure!) that I had made the right decision by attending BLS. 

#1: Securities Regulation (Prof. Fanto)

                I just mentioned Fanto to another student a couple hours ago and she said, “Oh, Fanto’s a god.”  That about sums it up.  Securities Regulation may be one of the most difficult classes in law school (I personally found Corporate Finance more difficult because of all the math, and Federal Income Taxation more difficult because of all the material), but it was always a pleasure to attend the lectures, even when Fanto admitted that he hated teaching the material (on Regulation S).   Simply put, I was very lucky to take a class with him.  I will never forget him shouting, “you have to be quiet!” during the first few classes or hearing his opinions on Congress (“they don’t have any idea what’s going on anyways…”) and our unfortunate position of needing to implement the JOBS Act into our understanding of the securities laws.  Also now whenever I go on a road trip, I will try to pick out abandoned bowling alleys, because he says it is usually easy to do—and that underscores my opinions on this course: it’s incredibly important stuff, but it’s contained in these incredibly dense and archaic statutes.  Fanto was great at making us understand just how important it was, and while I do not know my grade yet (perhaps I did terribly), I will always remember those classes very fondly. 

III.                 NIED #23 ½ : Restriction on the Right to Practice

90% of us will be staying in New York City post-graduation.  That is the figure that gets tossed around as a student begins their law school journey.  90% of law school students stay in the same jurisdiction (or is it state?) as their school.  A problem arises when a student’s attitude towards their “law school home” sours over the course of three years. 

Sometimes it is not too big of a deal.  You don’t like New York?  Well go to Connecticut, or New Jersey, or Massachusetts.  Take 2 Bars.  You can do it; it’s fine.  BLS “strongly recommends” taking the Bar Exam in two states (i.e. New York and New Jersey), and updates information for these two states but leaves the rest up to the student. 

I don’t know the deadline in California, I’ll admit.  But I do know the deadline in Illinois is February 15, and the total fee (if filing is timely) is $850.  It then jumps to $1,050 for “late” registration if done by March 31, and $1,450 for “really late” registration if done by May 31.  I never looked into this matter until a fellow Chicagoan told me it wasn’t possible to do Illinois and New York at the same time.

It would have been fine, for me, a student without a job who is torn between two states, if that other state was New Jersey, but it’s not.  Perhaps it’s the difficulty of traveling between two states on a Monday, Tuesday, and Wednesday (or can you take the Bar in a different state in your home state?  I don’t think so…), but you cannot take the New York and Illinois Bar exams because they are both two day exams on Tuesday and Wednesday (i.e. the MBE on Tuesday and the “state test” on Wednesday).  

The deadline for New York (we all knew) was April 30, so it is still possible for me to file “really late” in Illinois, and forfeit the NY Registration fee of $250, but I’ll have spent $1,700 in the process and will probably incur about $1,300 in moving expenses, and then who even knows about residency in Illinois.  Furthermore, switching at this late stage of the game is exactly the type of distraction that seems tailor-made for Bar Failure. 

This is the last NIED column because it goes to the last complaint about law school: when you don’t have a job, and aren’t sure where things will be better for the long term, nobody can give you satisfactory advice.  You just need to stick to your guns, pick one, and pray.  The state of indecisiveness is a horrible one that can make even the most talented minds wither under pressure.  It’s not like we’re Lebron James and we can orchestrate a television special to state which city will be so lucky as to have our legal talents.  We’re the opposite.  There’s too many of us, we’ve been told, so which city is unlucky enough to have to support one more mediocre (if grades are any indication) lawyer?  After all if we were destined to be a great lawyer, we would have a job by now, right? 

I throw my hands up and say once and for all that this is one area in which I cannot offer persuasive advice.  The best advice I’ve been given is to take the New York Bar, stay here until December or so, see if I have a job by then, and if not, return to Illinois and take the Bar there in February, because the MBE score will transfer.  This is easier said than done, though, as my remaining funds will likely dwindle down to almost nothing by that point.  And who really wants to take the Bar Exam twice? 

It’s all cold comfort this time, I suppose.  You should just pick your law school in the region where you’re sure you want to live.  If you didn’t do that, then you must be sure you want to return home, and you will already have your plan in place.  Unfortunately there is no back-up option—except if one happens to be from Washington D.C. (or Alaska, I’ve been told), where you can “waive in” immediately. 

In order to promote fairness, law students should be able to “waive in” to every state.  There are questions on the MPRE (which—surprise, surprise—applies nationwide) which state that non-compete clauses in partnership agreements are unenforceable because they constitute a restriction on the right to practice.  The Bar Exam is the ultimate restriction on the right to practice, because it forces a person to say, “This is my home, and I wouldn’t rather be anywhere else.” 

I loved going to school in New York from 2001-2005 (the “honeymoon period” after 9/11 truly made me believe that New York was the greatest city in America, and that there was nowhere else I’d rather be) so it seemed to make sense for me to pick New York over Los Angeles (and Chicago) for law school between 2010 and 2013.  Now I just see it as an overcrowded bundle of nerves, anxiety, car-lessness, high rent and claustrophobia (or maybe I only feel this way because I lived in Brooklyn Heights for 3 years) and I wish I had more “contacts” in other cities so that I could confidently believe that it would not be a bad career move to leave this place.   

The ABA should definitely consider broadening the right to “waive in” because while 90% of us may be staying, it may not be the most “voluntary” decision we make after starting.  Many of us are simply not the same people we were three years ago. 

There is a quote in the library (a gift from the class of 2010) from a movie that is not about law school, but is thought to apply to law school.  I have one other such quote: “I believe whatever doesn’t kill you, simply makes you…stranger.” 

IV.                 Top 5 Hardest Exams

#5: Property (Prof. Macey – Spring 2011)

While I earned a B+ in this course, and do not feel I did all that well on the exam, I was pleasantly surprised by this grade.  Property, it has been said, is the most useless first year course in law school.  That may be so, but sometimes it can touch on interesting and/or “useful” areas of the law (I remember hating the Mark Rothko case in Property, but then embracing it during Trusts & Estates).  In any case, many students complained about how hard this exam was, and I had no real reason to complain, but it was a very difficult exam to finish properly in the time allotted (there were “too many issues”).

#4: Accounting for Lawyers (Prof. Hauptman – Fall 2012)

While this exam was not necessarily difficult, the course itself was certainly the hardest 2 credit course I took in law school.  Our professor told us there would be no “tricks” on the exam, but this is a tricky course, and because I did not put in the requisite amount of effort throughout the semester, I suffered on the final.  My advice is not to underestimate this course if you plan to take it.  It is not “easy,” as a student a year ahead of me claimed. 

#3: Civil Procedure (Prof. Schneider – Fall 2010)

While this was the most “pleasant” grade I received in my first semester of law school, question #4 was the hardest question I have ever had to answer on an exam.  It made me want to cry.  I wrote two short paragraphs as an answer to #4 (which had a lengthy and confusing fact pattern about two and half legal-sized pages long) and apparently did as well or better on that question than any of my other percentages.  I guess it was one of the few times that everyone else was just as flummoxed as me.

#2: Corporate Finance (Prof. Myers – Fall 2012)

While I did not do all that poorly on the essays on this exam, I badly fouled up the multiple choice section.  This was one of the most difficult classes in all of law school because (like accounting), I did not put in the right amount of effort in during the semester.  It was a strange exam.  It was completely “open.”  We could use any and every resource at our disposal.  A lot of the other students probably hit “Control + F” and cycled through their outlines and cut-and –pasted their answers.  I didn’t have the presence of mind to do that, nor did I have the presence of mind to know all of the Microsoft Excel functions like the back of my hand.  A tough course and exam primarily because of the math involved.

#1: Debtors’ and Creditors’ Rights (Hon. Martin Glenn – Fall 2011)

I will never tire of talking about this course, nor the impossibility of this exam.  This exam caused both vomiting and tears (not from me, but other students taking it).  I was pleased with my grade on it (as noted above) but found the experience of taking it to be excruciating.  It was like a really scary roller coaster ride but gave off no great feeling of relief and accomplishment at its end. 

V.                  Areas for Reform and Conclusion

Brooklyn Law School is not a terrible place, but there are certainly some changes that would go a long way towards making it better.  I offer my own idiosyncratic suggestions here:

First, BLS should offer its students $50.00 per year on their printing account.  $25.00 (or $12.50 per semester) is insufficient for a typical student’s printing needs.  Further, there should be an option for students that never use the printing stations in the library to have a zero balance.  The former President of the SBA rebuffed this recommendation saying, “You need to raise tuition to do that.”  Well, our tuition was raised roughly $3,000 over the course of our three years and our printing account amount never went up, so to that I say, “No.”

Second, BLS should offer one color printer in the library.  It is sad when a student asks me if we have color printing and I sheepishly send them to 1 Boerum Place, even though I am not 100% sure there is a color printer there that they can use.  Just one color printer would be a nice addition to the library. 

Third, BLS should have a more robust academic advisement program.  We are given an academic advisor in our first year (one of our professors, I presume) but that professor may not necessarily want to engage the students in talking about their long-term goals and how best to achieve them.  While I am generally satisfied with my course selection, there were two or three classes that I wish I hadn’t taken.  The school does offer a panel every year on how to choose your upper-class curriculum, but more student-specific counseling should be mandated in the way that career-counseling is only “suggested.”

Fourth and finally (and this list is by no means exhaustive, just specific things I would have liked), the school should offer the option of a retroactive pass/fail.  This could be used by students to “nix” a grade that destroyed their GPA if the course had a pass/fail option that was not elected by the student during the course of the semester.  While this may have caused internal problems earlier, with the bright-line 80% standard the school has set for scholarships, just as remedial statutes should be interpreted broadly, such a standard would improve student morale and remove the problem of students “shooting for a D” on exams they know will be graded pass/fail.  If there were concerns about abuse, it could be changed to only allow for retroactivity in the third year (and not be available for the incoming 2-year-program).

In conclusion, it has been a long and often boring ride, but I hope that I have played a small part in helping to make this school a better place for students.  Some of the best moments I have enjoyed were in the “napping room” (104M in the library), and it is my hope that one day I can return to the school and officially have that room designated as such in my honor.  Students need a place in the library where they can relax for a few moments in an anxiety-free zone, and sleep if they must.  Everyone that knows the “napping room” is for this purpose will agree that it is one of the best “student-made” changes in the school.  And it is my hope that other students’ suggestions will bring about positive changes in the future in different areas of the school.