Special Comment - Scamblogs

This post required a large amount of painful research. One could ignore it, or take it with a grain of salt. One could also take it seriously and induce a nervous breakdown. It depends on whether one sees themselves in their posts.

I am talking about scamblogs, of course. These are blogs that focus on law school. One wishes there were more blogs like Flying Houses that can help you with 10 different case briefs written in a creative way. However, most blogs about law school focus on the detriment it is causing to individuals. These blogs are united in a common cause for law schools to be more transparent in the information they present to prospective students. They focus intensely on the employment rate of the class 9 months after graduation. They suggest that it does not show what percentage of that number (which is almost always between 90-99%) is employed outside the legal profession. They suggest that it is a voluntary survey that does not take into account the students that don't respond. They suggest that there are too many law schools and too many law school students and not enough legal positions to go around. And also that law school is too expensive and not worth going into debt over unless maybe you are going to one of the top 15 schools in the nation. Sometimes debt goes from $100,000 - $200,000. Mine is $60,000, plus whatever interest accrues by then. This is assuming my parents are able to support me for the next two years (and time to study for the Bar, and $3,000 for the Barbri course, and however long it takes me to find a job in NYC, plus rent). What happens when I go broke and I need to start paying off my loans? The only positive thing I have heard about loans is that you can defer their payment because of "hardship" (i.e. lack of employment). No matter what, I do not want to go into any greater debt than $60,000--that scares me enough as it is. And here I may not qualify for my merit scholarship renewal (grades are released in a week...perhaps grades will be released before this post is actually posted) and I could lose all of my funding, or at least a significant amount. If my grades aren't that great, and if I'm not at a top 15 school (or not even a top 50 school), and it's getting expensive for everyone involved, is it really worth it to go on? Will I ever get a job? Who knows. Impossible to know until you are faced with the situation. But it appears the odds are against us.

If I were to write a letter seeking advice from someone writing or posting on one of these sites, it is clear they would tell me to drop out. Who knows if I will get the same response from a person affiliated with my institution--a career counselor, a faculty member--if I reveal the same facts. My guess is that they will say, "Do what you really want to do--if your heart is set on being an attorney, then don't give up because eventually things will work out." I know that if I try to bring it up to my Dad, he will say, "There are so many other jobs you can get with your degree if you finish it out." Or if I tell him I want to quit he says, "What are you going to do then--work at a restaurant for the rest of your life?" And I say, "I don't know, I'll figure something out."

It appears to me this post might be most powerful if written entirely as a hypothetical dialogue--one of the few skills I have developed as a creative writer, the ability to present two sides to an issue--but no, this is a statement about scamblogs, and as such, it must go into an analysis of several websites, and attempt to answer the question, "How bad is it out there, really?"

We begin with the most popular of all sites, previously mentioned here in a couple posts, but most prominently back in my first post since Flying Houses went on "academic hiatus"--here is a link: http://flyinghouses.blogspot.com/2010/11/special-comment-on-using-movie.html

This website is of course ABOVE THE LAW.com (hereinafter "ATL"). It is worth noting that I read this blog somewhat frequently--every couple of days, whenever I become sufficiently bored, or run out of other interesting websites/blogs/news to read. I will admit that this blog is sometimes entertaining. It has made me laugh on more than one occasion. Its information is presented in a very reader-friendly way. The articles are never absurdly long (though I will argue that the longer the article, the closer it gets to truth) and are often about sex, or drugs, or lawyers behaving badly, or judges "benchslapping" them, or celebrities' legal affairs, or gossip about all of the nearly 200 law schools accredited by the ABA. It seems written by people who went to Harvard or Yale and are basically elitist, and proud of it (or at least exhibiting shades of ironic shame for blogging about law rather than practicing it). I will admit: this site has tons of ads, and is probably a very successful blog in the monetary sense, which seems like an oxymoron. It has many readers--but many of the readers are repeat visitors who leave stupid comments after every article. Still, it can be exciting to know your school has been written about--that everyone in the country/world who goes to this site (because I do think it is the most popular website for people seeking legal gossip) will know that yes, your school invites clothing companies to hold photo shoots of people in their underwear simulating sex in the cellar portion of the library (my "office," as it were, that I perhaps adopted in the hopes of living out such fantasies). Fortunately, we did not report our public service grant situation, as had been suggested at a couple meetings of students fighting it--that was one of my proudest moments as a member of this student body this year. I told people to fight the administration, and they all said no, it's hopeless, nothing will change, and guess what, it did change. Of course, next summer it will not be the same, and one wonders whether we will fight again. But I digress. ATL loves to make fun of our school because it is ranked #67. ATL loves to make fun of law school in general though, and it is leading the charge of the scamblogs, since it is the most visible online presence of this movement. Note the recent article on the lawsuit undertaken against Thomas Jefferson School of Law. Yeah, I wish there were a way for me to sue my school for punitive damages. I'm sure that's going to work out for them.

Scamblogs basically aver that students will not get jobs when they graduate, and who knows when this pattern will end. I know that people graduating right now (Class of 2011) have told me they have basically been ignored. I do not know many graduating 3Ls, but I did not know any who were "living the dream" of a law student--that is, working as a summer associate after 2L, being offered a position to start in the August or September after graduating, with a stipend for June and July to study for the Bar, and all BarBri tuition paid for--perhaps that is the norm at the higher-ranked schools, but that is not the norm where I go, and you need to be at the top of your class. So if you do well--maybe the 1 in 4 students who will graduate in the top 25%--it really doesn't seem so bad. Yet if you do that well, and can't find work, it's certainly frustrating. People in this position have the greatest cause for complaint. And our class is over 400 students. So 300 people in our class will not be in such an ideal position. We have to get creative.

Scamblogs do not talk about this issue very much. They focus on the "average" student at whatever school they are mentioning. ATL is the "super-scamblog" because it has adopted the philosophy that law school is basically a bad idea. There was a recent article about how prospective students will not be swayed by scamblogs, and this is also an intelligent observation. Am I the only one who, in the years (yes, from 2008 - 2010 I studied for the LSAT and took it twice, and could not get the 170+ necessary to become an "elite" future member of the legal profession) leading up to application, acceptance, and enrollment heard the all-too frequent rallying cry, "Don't go to law school?" I remember sitting in on a class at Loyola Law School, with a professor whose greatness was impressed upon me in those 90 minutes (Laurie Levenson), who called on the five or six of us who were visiting to ask about various points of Criminal Procedure, and then at one point said, "Well class, do you think they should do it?" And they all said aloud, in unison, "Don't go to law school!" Those five words have become such a buzz phrase. It was a remarkable experience that I could not take to heart, because I had spent all this money applying, and flying down to L.A. and renting a convertible, and this was my plan. One cannot shelf their plan before they have even started, particularly when they spent so much time getting ready for it. Prospective students think the hiring patterns will turn around by the time they finish, and they also think they will do well enough that they will not have to worry.

One could write much more about ATL, but there are more egregious websites for comment. One of the problems with scamblogs is that they are tasteless. They use foul language, and whatever intelligence they display is marred by the slip-shod nature of their writing, which leads to the direct inference that, if they are hosting a scamblog, they went to law school, and did not get a job, and want to take it out on the world. The inference is that they may not have been one of the best students--they may have been exactly the type of sucker they write about--doesn't know what they want to do with their lives, not necessarily sure they want to be an attorney from birth on, see that a J.D. is a relatively quick degree to get that doesn't require mathematical/scientific/technical college major background, think that law school is a ticket on the gravy train. They're not crazy--really, they're not--there are too many unemployed law students out there for them to be crazy--but their quest for transparency is, shall we say, compromised by their presentation.

But there is one blog that ATL frequently links to, and it is generally of a higher literary quality than the others that will be mentioned later. It is called THE PEOPLE'S THERAPIST (hereinafter "TPT") and it is written by a guy who went to a top law school, then worked at a large private law firm for several years then went to med school to become a psychiatrist because he hated the legal profession so much. This is a very personal blog--and in a certain sense I appreciate the brute force honesty and personal history that is offered by its author--but man does it hit you over the head! Many people will frequently mention that many attorneys have drinking and drug problems, and that it is a miserable profession. TPT is specifically dedicated to spreading this idea. Most of the posts that ATL links to are about why students should drop out. TPT's author seems to think that his ideas hold true for everyone. In a sense, this is how great writers become successful. They forge a connection with their readers by showing that they share the same feelings and have felt the same way when faced with a particular situation. But there is a difference between persuasive, enjoyable writing, and the rhetoric of brainwashing. This author may be happy now, but he is not a great writer. He is a better writer than most bloggers out there, but he does not affect me. He does not say every potential lawyer should become a psychiatrist (and there are obvious similarities between these two "counseling" professions) but he does say that law school can be a huge waste of time and money and that you should be focusing on doing what you love. (I will reserve my personal comment on this issue until the end of this post.) Basically, if you want to be a lawyer then you should not read this blog because he will try to convince you that you are making a big mistake because he didn't like working in the atmosphere that most law students dream about (where you are worked to death and make enough money to subsidize a fairly lavish lifestyle). Most law students don't have a reasonable shot at this kind of work, and this blog seems to stand for the idea that, if they did have a 3.9, journal, and top 15 school, and they could work at Skadden, etc., they would hate it anyways, so they should just quit. If you don't want this kind of work the blog is basically inapplicable and does not comment on the poverty aspect that other scamblogs are so effective at presenting. Reading all of these blogs makes me hate my life, but reading this one in particular upsets me because the author needs to point out how great his credentials are in order to appear persuasive. I do not advertise my academic credentials on Flying Houses (but you can probably figure out my history if you read the posts). My hope is that my writing speaks for itself.

But now unfortunately, we must move into darker territory. Our first stop on this tour of Hell is "Temporary Attorney." I first became aware of this site when trying to figure out who our President was, and what she did, and why there was so much antipathy for her. This is what I found:
http://temporaryattorney.blogspot.com/2010/07/joan-wexler-of-crooklyn-law-school.html
I think some of my fellow students used this information when we fought for the public service grant. This is a really upsetting story in no small part because of the picture. Why not use a real picture? The writing is flanked with urban dictionary prose, and may justifiably be deemed "alarmist," but is not totally devoid of persuasive qualities. Yeah, I totally agree she should take a paycut--but many of these sites just point to a salary and never say what should be a reasonable one. Of course, any compensation over $500k is too much, but people in this world dream of "big money" and for some 500k is not enough. Once you are used to making it, a pay cut is painful. I used to make $36,000/year + bonuses. That was straight out of college. Now six years later I am making $12/hour through a public service grant, and I hope that I can get more than that once I pass the Bar. There is no way for me to support myself (in NYC) on these wages. One can support oneself on $500,000/year, but if one has expensive mortgages, and all of the other accoutrements to a high-class lifestyle (if you go out for every meal, and they all cost $300-$1,000), it is difficult to go back to that previous life. But this does not mean I am sympathetic. Our President's salary is unconscionable, and should be scaled back by at least 50%. If she makes more than the President of the U.S., it does not seem fair. Our school is not as complicated a venture as our country.

Mainly, Temporary Attorney focuses on the jobs available for unemployed/underemployed J.D.'s, i.e. Robert Half, which was responsible for supporting and killing my L.A. dream. I am scared that I will have to resort to their services five years after my last position worked through them, but I digress. Temporary Attorney also focuses on people like our President, who make too much money, and who lead to the further inference that law school is indeed a scam where professors and administrators get paid very well to delude students into thinking they are making a brilliant life decision, when in fact they are basically killing themselves in a much less fun way than going on a Chris Farley-esque bender (which has always been my personal plan). It is not the most offensive of scamblogs. But it has been useful as a link for me to find the more egregious ones.

There are too many scamblogs out there to try and review so I will focus on the links that have been updated most recently. One of the blogs, "The Jobless Juris Doctor," has stopped writing about the issue after 18 months. I agree that is long enough to run one of these blogs. You can only repeat variations on the same theme so many times. "Esquire Painting" is an affecting blog written by a person who was 300K in student debt. It is a very creative blog, one of which I would usually approve. But as personal as Flying Houses gets, I do not venture into such sheer autobiography--that is reserved for literature--and am not sure what I can get out of reading such a blog as that. "First Tier Toilet!" boasts a well-placed exclamation point, but seems to want to post many pictures of roaches and other bugs. There was one post decrying ATL, which was nice, and in general this site sometimes puts together an intelligent argument. It is not unpleasant to look at, except for the bugs. "Legal Nihilist"'s last post talks about how scamblogging and surfing these different blogs is unhealthy and a waste of time and how it is time to get over the injustice of what was done to them. This is perhaps the most uplifting thing I have read on the topic. "Tales of a Fourth-Tier Nothing" gets my vote for best blog name and is not all that offensive. There are many others that are in this category--fairly well-written, not offensive to the senses--but in general, reading these blogs will make you depressed.

There are two more I want to focus on: the first is the worst--"Third Tier Reality." This is an extremely offensive blog because it posts a picture of fecal matter with each new article. It is noteworthy for its narrow focus--it only profiles schools, and individuals, who are supposedly contributing to this scam. I must admit, I am impressed by the number of posts--but I am not impressed by the writing quality. Of special note is the profile on our school: http://thirdtierreality.blogspot.com/2010/07/deconstructing-crooklyn-aka-brooklyn.html

This post will make you sick if you go here. The entering class profile is right on the money. We have too many students. They should cut it down to about 200. But I don't think they can without majorly re-organizing the infrastructure of the school. It is designed to be this big. I have mentioned before the claustrophobia at this school, the feeling that sometimes you cannot breathe because you are surrounded by too many other students in the halls. But I am not here to criticize, I am here to point out the unoriginality. The Jessica Alba line under "intangibles" is similarly repeated in other school profiles. Our tuition is ridiculous, but this blog will point to any school's tuition, even if it is $10,000 less (like DePaul's is), and say it is too high. The blog also does not take scholarships into account. Neither do most scamblogs. The semi-recent article in the NY TIMES about this issue points out this is other "scam-like" behavior, but in general, when your load is $28,000 less, it at least appears that the school is not out to get you and actually doesn't want their school to put you into a lifetime of debt servitude. This fact is frequently glossed over. The comments on this site (like many others I presume) are where the real zingers fly. Over and over again it is just terribly depressing. At least one person in the comments says they are an intern and it can't be so hard to get a job as everyone says it is--nervous energy and overanalysis.

"Shilling Me Softly" also has an impressive number of posts but appears to be similar to a few other blogs in that they are basically a Jr. version of ATL (the same goes for "But I Did Everything Right!"). The last one I want to mention is "S*** Law Jobs" which posts ads from craigslist from across the country that pay terrible wages. This site is mainly good for a perverse version of comic relief. But I really can't write anymore about this. I envisioned this post as something great, but I see now it is futile to take these actual bloggers to task about specific things they have written, and it is more important to present my personal feelings on the matter as a person who has just finished their first year at a much-maligned institution:

My feelings change on a day-to-day basis. There is no consistency to my internal sense of happiness. To work with an impending sense of doom is nearly impossible, but I have done it all year long. People tell me I worry too much. Maybe I am just too gullible a person. Maybe I would be better off if I had never discovered any of this information. As a person who has complained about their life all along, and who has joked about suicide for approximately 18 years, and who has already gone broke once, I still have never been in debt until now, and the feeling is a bit overwhelming, even when it is only 20K at this point and I would be able to pay off at least a little bit of it pretty soon. But I would go back to that life I had before, where my market value was $13/hour. Cynical scambloggers will say, "$13 is better than the $10 you'll be making in s*** law!" Plus there's no extra debt. However, most will make more than $10. Actually, it seems not totally unlikely that I would be qualified with this degree to receive a salary in the 50-60K range. And I know it is hard to find a job now, but I want to ask everyone--have you ever tried to be published?

Which is worse--the legal industry or the publishing industry? You tell me. I'd love to be a literary agent. I won't stop writing. I came into this school knowing that. Some people say that work as an attorney is too time-consuming and you will never find the time to write. Whatever. All the jobs I could find were boring, and legal work may be boring at times, but at least it deals with semi-interesting subject matter and real issues that figure imporantly in other people's lives. It is a profession where you can "make a difference." The difficult thing to do is balance the terrible financial situation it may end in with the possible benefits of personal fulfillment and more lucrative job opportunities. If I said I hated it, I hated it because of all of this bad news flying around. It was yet another time in my life when I made a decision that seemed like my destiny but I was slapped into the reality that I am indeed a superfluous human being.

I don't give up on writing because it is a form of therapy. Law school is not a form of therapy. But I do think it is harder to make it as a "writer" than it is to make it as a "lawyer" and that is pretty much the last reason I have for not feeling totally demoralized. So thanks for all the great information. I have really appreciated becoming depressed. At least I am not wearing horse-blinders (unless the information has actually been blown out of proportion, in which case I was brainwashed--but I felt uneasy enough about my personal finances 10 months ago to know otherwise). Mission accomplished, law schools know they need to be more transparent and maybe they will actually be regulated more closely. I come to no thesis in this post. I cannot ascertain veracity until I am in the situation myself. Apparently, it is a hopeless one.

Reflection on 1L Year

It is not easy to sum up a 9-month period in a single blog post. Nor do I know exactly what I want to say about the experience of a law school student that I will not touch on in my next post (which is sure to be controversial, and as un-biased as humanly possible). I was considering writing about the top 10 cases we read, and a short description of why each was so great, and then a list of the 10 worst cases (the most painful to read). This might take a very long time. The fact is, I am planning on composing a follow-up to Think and Grow Poor: Cultivating a Negative Mental Attitude, otherwise known as my only work of creative non-fiction/memoir, about my experience of traveling to and living in California for 10 months. Ironically, this book, which has the present working title of Loss of Enjoyment of Life, may cover a period just as short and as packed with emotion. My grades will be released June 8 and then I will begin to know for sure whether this will be the end or not. To be sure, I had a better time in California, working dead-end office jobs and going on pointless interviews and waiting in traffic and never dating anyone but pining for my dermatologist. Clearly, it was much better than these past 9 months, which all too frequently involved reading and re-reading sentences and paragraphs of opinions, escaping a day or two or three later with zero to little recollection when called upon in class to recall a pivotal point of reasoning. I do not think I studied as effectively as I could have.

Believe me, I put in the time. I was not a slacker. My social life was almost laughable. I moved here for school (and with the hopes of practicing and living here for the long run) because it was where I had the most friends--but who could have guessed that 90% of them (those not extremely close, but more near acquaintance, perhaps signaled by a wave in the street) would ignore me as I attempted to reconnect.

Were the classes boring? At first, they were terribly boring! But a funny thing happened when we finished all of our assignments and entered exam period--I sort of began enjoying thinking about the topics we covered. This is a ridiculously dorky thing to write. But by the end of the year, I could think of a positive thing to say about Civil Procedure, Torts, Criminal Law, Contracts, and Constitutional Law. Property was probably my least favorite class, though ironically I think it may carry more than its fair load in the top 10 best list (and probably the top 10 worst list, too). The book we used was interesting, but the class was maddening. I could review all of the books we used too, but that would be boring. Better to focus on individual cases. Still, look at my last post about the ad coelum doctrine for proof that I am able to say something nice about even my least favorite class.

But yes, I was not a slacker, but my outlining was not where it needed to be. Outline early, outline often. That is my advice. My outlines were all unmanageably long, particularly spring semester (Con Law-74 pages; Contracts-96 pages; Property-98 pages). Fall semester they were all in the 50-60 page range. This led to a lot of insecurity.

I watched a lot of Netflix, and I will probably watch too much Netflix forever or until I get a TV with cable or something. I watched almost everything on my computer, and worked on this computer, and it cost about $500 last August, and it has had its share of word processing malfunctions, but never anything truly serious, and so I have been lucky. I also ate in front of it often and there are probably many little crumbs in the keyboard. It should probably be cleaned, but who knows if I ever will get around to this.

I was not very good about making friends with my classmates. But let it be known that if I didn't suffer from a chemical imbalance or manic depression or bipolar disorder on an ultra-ultra rapid cycle or whatever you want to call it, I am sure I could be a happy and healthy and social individual. I also would have been a more productive law student. I did not know any other classmates specifically suffering from depression as intensely as myself (that I could tell...), but believe me it is an impediment to success when every other day you go to bed praying that you will not have to wake up in the morning and endure another charade of the professor's question-and-answer session or unbelievably dull lecture. It is also an impediment to making friends because depression results in a loss of speech. And while people will generally be nice to quiet people, a person has to carve out a personality. And people will not generally want to surround themselves with people who feel uncomfortable, because their lack of comfort spreads, like an infectious disease. One might be able to say this feeling pervades law school classrooms and that few will be totally impervious to a moment or two of weakness by way of osmosis. But those without any "clinical" hang-ups stand a better chance of success.

Really most of what I would want to say will be included in Loss of Enjoyment of Life. Let us hope that it will be published. How many unemployed law students turn to literature in their darkest hour? Probably too many, like everything else in this world:

10) Christian v. Mattell (286 F.3d 1118) (9th Cir. 2003) (Civil Procedure)
The first sentence of this opinion gives a sense of the greatness to come: "It is difficult to imagine that the Barbie doll, so perfect in her sculpture and presentation, and so comfortable in every setting, from "California girl" to "Chief Executive Officer Barbie," could spawn such acrimonious litigation and such egregious conduct on the part of her challenger."

This is a case about Rule 11 sanctions, arguably the most interesting topic in Civil Procedure. In 1990, a young woman at USC created a cheerleader doll, and in 1996, Mattel released "Cool Blue" Barbie, which looked very similar to this doll (a cheerleader, with face paint), and Christian sued Mattel for $2.4 billion and injunctive relief. The attorney she hired, Hicks, is the subject of the opinion:

"At a follow-up counsel meeting required by a local rule, Mattel's counsel attempted to convince Hicks that his complaint was frivolous. During the videotaped meeting...Hicks declined Mattel's invitation to inspect the dolls and, later during the meeting, hurled them in disgust from a conference table."

This was a fun case to read, and Civil Procedure was a more interesting course than it appeared at first blush, because it could also be named "Lawyers behaving badly." Plus I sometimes fear (or fantasize?) that I will become a terrible attorney in the future and bring stupid lawsuits and do things like throw Barbies around an office. The image alone is what ranks this case #10.

9) Monge v. Beebe Rubber Co. (114 N.H. 130, 316 A.2d 549) (1974) (Contracts)
This is a rather famous Contracts case that I think most classes will read. I think it would make a very good movie. It would be a very sad story. It is about a young woman who came to New Hampshire from Costa Rica in 1964 and went to night school 5 nights a week from 7-10. At 11, she would go to work for $2.79/hour on a degreasing machine (whatever that is). Her supervisor at work made passes at her, and she rejected his requests for a date. Then, he demoted her to a sewing machine, which paid $1.99/hour. She was later fired, then reinstated, then called in sick, then found unconscious on the bathroom floor, then called in sick again, then deemed a voluntary quit.

The case is famous for stating this rule of contract law: "In all employment contracts, whether at will or for a definite term, the employer's interest in running his business as he sees fit must be balanced against the interest of the employee in maintaining his employment, and the public's interest in maintaining a proper balance between the two."

The dissent noted that there was a different way of looking at the case, and that the supervisor was not quite the monster the majority opinion made him out to be. This is another reason the story behind this case would make an interesting movie. I thought it was fun to read because it was just so messed up. "Oh, you don't want to go out with me? Well, you're fired."

8) Grutter v. Bollinger (539 U.S. 306) (2003) (Constitutional Law)
Along with Bakke and Gratz, these three cases represent the majority of the Court's jurisprudence on the topic of affirmative action in educational settings. The other two cases rule that affirmative action is unconstitutional--because they implement some type of numbers-based acceptance procedure for minority students. Those dealt with the UC-Davis School of Medicine and University of Michigan's undergraduate institution, respectively. This one deals with University of Michigan's law school--and their method of implementing affirmative action is more holistic, less numbers-based, and is therefore valid. My analysis of this case may be a bit simplistic, but I believe it is accurate. The fun of reading this case primarily turns on its being about law school admissions and being a point of study for law students.

It was also probably the only moment all year that I uttered anything close to a controversial comment during one of our classes. I actually volunteered when asked a question about this case, and the professor asked me, "So basically, if you are a minority, and you apply to law school, and your score is above a certain threshold, and your GPA is above a certain threshold as well, the admissions office can basically accept you automatically, does that sound accurate to you?" I said, "I think it's pretty much done that way." He seemed a bit upset that I said this, and said my view was probably not exactly the way these things happened in real life. What I would have liked to have offered was this: I am not a minority. But, I know I called BLS after I got a 158 on the LSAT and asked, "So, if I apply, and I have a 158 and a 3.6, what are my chances?" They said, "Get a 160." I retook the LSAT and got a 163. I got into BLS with a scholarship. I think everyone with my stats automatically got accepted with a scholarship. Maybe I'm wrong. But minority or not, I think this was pretty much the way the admissions office worked. It would have been interesting to comment on the concept of "minority"--just because I am a white male, can't I still be a minority? Aside from the obvious issue of sexual orientation (which apparently works similar to race, but with less aggressive reforms in terms of remedial legislation), am I still stuck with all of the associated past history of favored treatment? Am I rich? Have I always been picked first for the kickball team? I guess the answer is this: I am just one person, and the vast majority of minorities have suffered from real discrimination that does not apply differently from person to person, but is widespread across an entire class of individuals. It is too bad I will not be born in 2028, which is when O'Connor says affirmative action will no longer be necessary to achieve diversity. Of course there is always the possibility of reincarnation.

7) Indiana Harbor Belt R.R. v. American Cyanamid Co. (916 F.2d 1174) (7th Cir. 1990) (Torts)
I am mainly picking this one because I had to include one case written by Posner. I have to include him because I am proud of him for being such an important figurehead over the past 40 years and for staying based in Chicago. I am surprised he was never appointed to the Supreme Court. Perhaps there was talk of it once. But anyways, this is a case about abnormally dangerous activity, an interesting topic in Torts. There is a train carrying liquid acrylonitrile that stops in Blue Island, and one day, workers notice a leak. This is a great case for Chicago culture as well. Posner cites a case about a hot air balloon landing in a rooftop garden in New York City in 1822. It was apparently a "paradigmatic case for strict liability," but its analogous quality appears elusive and was probably cited just because Posner is so awesome. Then near the end of the opinion, he comes to this conclusion:

"It is no more realistic to propose to reroute the shipment of all hazardous materials around Chicago than it is to propose the relocation of homes adjacent to the Blue Island switching yard to more distant suburbs. It may be less realistic. Brutal though it may seem to say it, the inappropriate use to which land is being put in the Blue Island yard and neighborhood may be, not the transportation of hazardous chemicals, but residential living. The analogy is to building your home between the runways of O'Hare."

6) Commonwealth v. Carroll (194 A.2d 911) (Pennsylvania Supreme Court) (1963) (Criminal Law)
This is a case where the defendant gets charged with first-degree murder and probably doesn't deserve it. It is then followed by a case where a defendant gets second-degree and totally deserves first-degree murder. The differences between the cases are egregious. In this one, the defendant is an Army veteran married to a wife with a schizoid personality disorder. She is made out to be a very annoying person. He then shoots her after an argument where she tells him she won't allow him to take a teaching position at night. They were about to fall sleep, in bed, and he was overtaken with a sudden urge--some form of temporary insanity, one might argue. The opinion seems to make clear that he deserves first-degree murder, even though he appears to have enough adequate justification that it might appear a less morally blameworthy crime. It is then followed by People v. Anderson, which was probably the single most brutal case we read all year long. A much less sympathetic defendant, and yet the court comes out with a lesser charge. The casebook argues that these decisions should be opposite. The casebook was written in part by my Criminal Law professor who was my favorite teacher all year, but he also ended up giving me my worst grade (I hope I don't do worse than C+ in any of my spring semester classes--whose grades come out June 8--19 days from now...). I truly believe I have a good understanding of Criminal Law, my grade notwithstanding. I was working with a diminished capacity. I could not sleep the night before. I fell asleep finally at 4 AM, woke up 3 hours later, trudged my way through the 3 hour exam, and wanted to go home and cry. I know depraved heart, malice aforethought, and felony murder like the back of my hand.

5) Hecht v. Superior Court (16 Cal.App.4th 836) (CA, 1993) (Property)
This was a case about the concept of “personhood” as property. “Personhood,” in this case, means sperm. It is about a guy named William E. Kane, who killed himself at age 48 in a Las Vegas hotel on October 30, 1991. Kane was a divorced attorney with two college-aged children, who had been living with a girlfriend, Deborah Hecht. He left her his sperm in a will so that she could impregnate herself with it. The trial court ruled in favor of his children, who wanted to have the sperm destroyed, apparently because they thought the idea of a child that would never know its father was unconscionable on moral grounds. The court of appeals rules that there is a property interest in sperm, and that the trial court abused its discretion in ordering the sperm destroyed.

The chief appeal of reading this case is for all of the personal pathos it involves, including Kane’s suicide note, and a mysterious betrayal. Once again it is another case that would make a great movie. Kane wrote this letter to his children 9 days before he died:

“I address this to my children, because, although I have only two, Everett and Katy, it may be that Deborah will decide—as I hope she will—to have a child by me after my death. I’ve been assiduously generating frozen sperm samples for that eventuality. If she does, then this letter is for my posthumous offspring, as well, with the thought that I have loved you in my dreams, even though I never got to see you born. If you are receiving this letter, it means that I am dead—whether by my own hand or that of another makes very little difference. I feel that my time has come; and I wanted to leave you with something more than a dead enigma that was your father. I am inordinately proud of who I have been—what I made of me. I’m so proud of that that I would rather take my own life now than be ground into a mediocre existence by my enemies—who, because of my mistakes and bravado have gained the power to finish me.”
“After several pages of childhood memories and family history, the letter stated: ‘So why am I checking out now? Basically, betrayal, over and over again, has made me tired. I’ve picked up some heavyweight enemies along the way—ranging from the Kellys of the world, to crazies with guns, to insurance companies, to the lawyers that have sucked me dry…I don’t want to die as a tired, perhaps defeated and bitter old man. I’d rather end it like I have lived it—on my time, when and where I will, and while my life is still an object of self-sculpture—a personal creation with which I am still proud. In truth, death for me is not the opposite of life; it is a form of life’s punctuation.”

(I am sorry but I have to comment on just watching “Wheel of Fortune” now. On tonight’s episode, Vanna White missed a letter. It was left lit up after the next team spun, and when they tried to answer, she moved to touch the box and reveal the letter. At the end of the show, Pat Sajak said, “You know I have made a lot of mistakes over the years, but you almost never make a mistake. It’s good. It shows that you are a human, not that there was any doubt about that.” And it made me think of the Property case White v. Samsung Electronics America, Inc. (9th Cir. 1993) in which Vanna White successfully sued Samsun g for depicting her as a robot in a commercial that said “Wheel of Fortune 2012, the longest running game show in history.” There is a great opinion by Judge Kozinski but I do not want to get side-tracked. I just thought it was extremely ironic and timely, how it made me think of another case from Property (and also Torts), and how the final puzzle answer was “Daily Blog.” I wonder if what Pat Sajak said was a reference to that case, or if he just meant it matter-of-factly, in that she was superhuman, or alien, not necessarily robot, or if he meant it as a seemingly innocent underhanded reference… .Truly the stars align for me to be writing with the TV on and that comment bearing so closely to the very topic I was writing about, at one of the very rare times that I will write a blog post about legal topics.)
I think that is all we need to say about that.

4) Consolidated Edison Co. of New York, Inc. v. Arroll (Civ. Ct. of City of NY, 322 N.Y.S.2d 420, 1971) (Contracts); New York City Transit Authority v. Beazer, 440 U.S. 568 (1979) (Constitutional Law) (tie)
I live in an old building in Brooklyn. There is no A/C, and there is baseboard heat. My school owns this building and has not made improvements upon it. For our particular building, my roommate and I must pay the electric and gas bills. I didn't think it would be too tough. And it wasn't--until we started using the heat. Bills were about $50/month for electric and about $15/month for gas. (This is not about gas--I have no problems with that bill). My roommate and I split them and it added an extra $33/month onto our rent--not bad (but we don't have cable TV, just occassionally reliable wireless internet). In December, our Con Ed (electric) bill shot up to $148. In January, it reached $242. In February, it went up to $245. In March, it hit $299, and the bill said the previous two bills were just estimates, and the extra cost was to make up for that. Assuming $260/month, my roommate and I added $140/month to our rent. That is not an insignificant amount. I e-mailed Campus Services and asked why the bill was so expensive and they said it just was. I called Con Ed and asked why it was so expensive and they said it was comparable to the previous tenant's bills. Finally, when spring semester started, I got a $12 service charge from Con Ed because I had switched my bank account and forgot to update the routing number for direct-pay--but with a negligible delay of a day or two. My temper reached its peak as I argued with a customer service rep for about a half-hour about why she should remove the $12 charge. She said she couldn't without proof of the dates I changed the routing number, necessitating a trip to Citibank, and a fax--too much work for a $12 fee when one is in law school. The next day we had a snow day and I went to the Con Ed headquarters in downtown Brooklyn and made a second attempt--and the customer service rep's supervisor removed the charge in a matter of minutes, almost no questions asked. The lady I talked to the night before was so rude--she hung up at the end of the call, clearly frustrated by my inability to concede defeat of something so trivial as $12. I was so upset and angry that I went outside to smoke a cigarette around 11:00 at night. I remember it being very quiet, and very clean, and I remember watching the snowflakes fall gently, and heavily.

Enter end of March/beginning of April when my bills started to return to pedestrian levels, and I do not feel like I am stuck with a Hobson's choice of either freezing my ass off or accelerating my own financial ruin, and we read this case about a guy who is disputing his electric bills with Con Ed. You can imagine my excitement. Couldn't I sue Con Ed because their rates were unconscionable? No, but couldn't I sue BLS, because the heating bills are a result of failure to properly maintain the building? Undoubtedly not, also.

This case involved bills for the SUMMER months in 1968, 1969, and 1970. Unlike my situation, these bills greatly exceeded past bills for comparable periods. Arroll argued that the meter readings were wrong, and Con Ed argued there was no dispute on the issue--they were accurate. Arroll sent the President of Con Ed and the billing department a letter with a check for $35.00 explaining the situation and saying that he would offer the $35 as payment but would not pay any more than that. Con Ed deposited the check, but then continued to hound him for more payment. (I won't get into the technical details about "accord and satisfaction" and the language of the letter Arroll--an attorney if I remember correctly--used to create the contract). The court ruled in Arroll's favor, saying that if Con Ed took the money, they accepted the contract that Arroll had created, and he was therefore exempt from the extra bill amounts.

This is a case that might be decided differently today--or more likely would not arise, as Con Ed would know how to deal with it (one assumes). This is also a case that caused my professor to remark, "Don't try this at home!" I haven't bought an air conditioner yet, mainly because I am afraid of the higher bills again.

The other case we didn't really read--it just appeared in the book's notes following a case we studied more closely. But basically, the Supreme Court ruled that NYCTA's rule discriminating against methadone users was valid. No methadone users could become employed by NYCTA, because they wanted to ensure job and passenger safety. Do I personally agree? No. I see where they are coming from saying that there is always a risk of relapse of addiction, and it would be awful if you were on a subway train conducted by a junkie. There could be a major disaster. However, NYCTA is a huge employer, and it basically shows no respect for drug treatment programs by setting this rule and basically saying, "Yeah, we know you are trying to quit using, but, you can't work for us until you are free of methadone." There could be some better way to restrict the types of employment available, and more fine-tuned regulations. But the Court granted deference to NYCTA. Note that I am mentioning these two cases in a tie because they both hold personal value to me--obviously the Con Ed situation was relevant. Here, I am not a methadone user, but I do happen to work at the NYCTA's law department right now, and while the cases in our division would not relate to employment discrimination, it is certainly fun to see the place you work represented in a textbook.

3) Gonzales v. Raich, 545 U.S. 1 (2005) (Constitutional Law)
This is a Commerce Clause case, the Court's most recent decision setting out another example of activity that affects interstate commerce and therefore may be regulated by Congress. There are perhaps a dozen or so famous Commerce Clause cases that every Con Law textbook will cover and every Con Law professor will test on. My big mistake on my Con Law exam was just sort of forgetting to write about it--typically, any Act or statute that Congress passes may be subject to analysis under the Commerce Clause. I was always writing about Equal Protection and just sort of assuming that basically any kind of law is valid under the Commerce Clause. The only two that were not recently were Lopez in 1995 (where the Court said that the Gun-Free School Zone Act was invalid because preventing handguns from entering school grounds did not affect interstate commerce--the school found a gun in a 17-year-old student's locker in Texas) and Morrison in 2000 (where the Court said that the Violence Against Women Act was invalid because preventing gender-based violence does not affect interstate commerce). Wickard is a case from the 1940s that is arguably the most famous Commerce Clause case--a farmer sold off his quota of wheat under a plan enacted as part of the New Deal and then harvested another certain amount of wheat for his family's personal use, rather than buying it at market. He was penalized for doing this, and he wanted the act struck down, but the Court ruled that the behavior he had exhibited would have a substantial effect on interstate commerce if every other farmer also did the same thing. This was called the "aggregation principle." And Wickard and Gonzalez are often talked about in the same breath, because they both concern this aggregation principle, and because one is about wheat, and the other is about, um, weed.

This case is a total showdown between California's Compassionate Use Act and the federal Controlled Substances Act. One of them allows marijuana for medicinal purposes (and it is not exactly difficult, one should understand, to make out a case for why one should be entitled to this prescription) and the other is a total ban on all drugs, including marijuana. This case was decided in 2005 and I moved to L.A. in 2007 and, well, all of the dispensaries were alive and well, so California law must have trumped federal law in this case, right? States are allowed to be laboratories where they can carry out their own experiments to see what makes the most sense for the type of people that live there, right?

Federal authorities arrested a couple California residents who were growing their own marijuana, which is allowed under the Compassionate Use Act, but not allowed by the Controlled Substances Act. Raich and Monson brought this challenge against the Controlled Substances Act. The Court ruled that the act was valid. I guess there was no need to talk about federal pre-emption, and I guess that the Court didn't necessarily need to say the Compassionate Use Act was invalid. What does this case mean practically, then? Like most Commerce Clause cases, most types of congressional legislation are valid. And people still grow their own pot in California. This is one of the greatest cases we read because it illustrates a frustrating aspect about law school studies: you learn the principles behind the decision, but it doesn't necessarily allow for a logical real-world explanation. Also, just the fact that one of the U.S. Constitution's most-famous clauses is now intimately connected to weed is one of the reasons Con Law could be the best first year class, in terms of analyzing provocative hypotheticals, and drawing on one's concept of reasonable American values.

2. Allen v. United States of America, Civ. No. C-79-0515J, C.D. UT, (1984) (Torts)
Another opinion whose opening lines bespeak greatness to come: "In a sense this case began in the mind of a thoughtful resident of Greece named Democritus some twenty-five hundred years ago. In response to a question put two centuries earlier by a compatriot, Thales, concerning the fundamental nature of matter. Democritus suggested the idea of atoms. This case is concerned with atoms, with government, with people, with legal relationships, and with social values.
This case is concerned with what reasonable men in positions of decision-making in the United States government between 1951 and 1963 knew or should have known about the fundamental nature of matter.
It is concerned with the duty, if any, that the United States government had to tell its people, particularly those in proximity to the experiment site, what it knew or should have known about the dangers to them from the government's experiments with nuclear fission conducted above ground in the brushlands of Nevada during those critical years....."

I could quote on and on--it uses the "It is concerned with...." phrase over and over in the introductory section of the opinion, effectively conveying a sense of the stakes to the students reading it. There is this semi-poetic introduction, then there is a section explaining the nature of the action--which is brought by 1,192 named plaintiffs, but is not a class action (and note, after the first year of law school, my concept of a class action is no more clear than it was a year ago). It cites several cases that we had studied (including Parklane Hosiery, from Civil Procedure, which I would rate as the #1 worst case to read if I have the patience to do that list), and then makes the point that, yes, radiation causes leukemia, but it is not always easy to tell if a person has leukemia just because they were exposed to radiation--there are other causes too. It states a general rule of law for this sort of case, and then it moves onto its best part, which is a brief review of the situation of certain representative plaintiffs, the conditions they have exhibited, and the probability of their cancers having been caused by the radiation, and whether or not they should recover. Sometimes, it seems almost arbitrary and unfair that some plaintiffs recover and others do not.

Basically, this was a great case because it was well-written, factually interesting, dramatic (another good subject for a movie), and useful. It cites many cases from Torts that students will study, and it covers a topic that is almost guaranteed to be on a Torts exam (depending on the professor, of course): abnormally-dangerous activity/toxic torts/nuclear radiation. To me, these were some of the most difficult, but also most interesting areas of Torts. I knew it could be tricky, so the night before my Torts exam, I read this case (our copy was a print-out, so perhaps removing it from the cumbersome medium of a 1000 page law book made a psychological difference--see also Monge v. Beebe Rubber Co., also a print-out for us). I was able to relax--this case makes sense, for the most part--get a brief review of some other related concepts, and gain a clearer understanding of a tough topic. It worked out well for me. While I didn't exactly ace the exam, I ended up with a B+. This is nothing to write home about, but I had gotten a C on my midterm in Torts--good for the lowest grade in a class of about 40. When that happened, I wanted to drop out straight away, feeling I could never compete with anyone else. That counted for 20% of our grade, so its possible I may have scored an A- on the exam, to end with a B+ in the course. And it's not a great grade, but I considered that one of my top 3 personal achievments in law school. It is hard to find cases as good as Allen to re-read the night before an exam, but I recommend it as a way to manage anxiety.

1) Murphy v. Steeplechase Amusement Co., 166 N.E. 173 (N.Y. 1929) (Torts)
This is an opinion written by Justice Cardozo about a ride at Coney Island called "The Flopper." It being by Cardozo, I could quote the entire thing and not know where to stop. A young man went on the Flopper and fell down. Cardozo mentions that there would be no point to the ride if there was no risk of falling--this is why the walls and floors on the ride are padded. The plaintiff was on notice that he could fall down. "The very name above the gate, the Flopper, was warning to the timid. If the name was not enough, there was warning more distinct in the experience of others."

The plaintiff fractured his knee cap. He asserted in his complaint that the ride was dangerous, and not properly equipped to prevent injury. He was thrown with a jerk. Cardozo rules that he cannot prevail in this action, because "Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball."

There are several other quotable portions of this opinion, but I will stop things here, and note that the reason "The Flopper" is the #1 case in the first-year of law school studies is because it is about Assumption of Risk, and anyone choosing to go to law school may be taking a certain risk with their lives. It may seem overly dramatic for me to write this, but it is true: one goes into it with fair warning that it will be graded on a curve, that the reading will be heavy, that only the best grades will get the best jobs, that there are less jobs becase certain schools enroll too many students, that lawyers are parasites of society, that some students won't know how to deal with the stress of it all and will drop out in a manner of economic forfeiture, that some students will chug along pleasantly enough and accrue all of the student loan debt in the world and find the inherent difficulty of squaring life and this profession just too overwhelming, that the social life is a weird hybrid of high school and college and is ultimately more embarassing and less comforting than either because we are supposed to be adults now, right, we are supposed to be responsible individuals that make intelligent choices about our life--enough so that we can advise others on whether their choices are intelligent or not, that the whole mess of it all is a big risk, which one can't say quite as clearly about high school or college, which are overwhelmingly par for the course of education, when law school may seem less expensive than college because it is shorter by a year, but also signals a different period of life that has suddenly become both scary and boring.....In a sense, law school is The Flopper, and if one goes to law school near Coney Island, the metaphor stings that much more. When you complain about law school, people will say, "You wanted to do it." People will say, "You knew what you were getting into." But you didn't, and you can't.

Any ride at any amusement park in the country will now have warning signs that tell you not to ride if you are pregnant, or have a heart condition. The Flopper is thus influential. Law schools do not have warning signs. The warning signs come from outside, impersonal sources (i.e. scamblogs, the subject of the next post) that one has dificulty taking seriously, or believing until it becomes the status quo in one's own personal life.

Professors and upperclass students will talk to 1Ls at the beginning of the semester and give them their "tips" for academic success. The experience is different for everyone. While many elements of the experience will be shared by all, the overall personal impression one walks away with cannot be adequately described by any universal phrase. When people ask me what I thought of it, I say, "It was terrible." Sometimes I will lie and say something is interesting but that is only because I do not want to cause any friction. But when people ask me how I really feel I will be honest. But the problem goes deeper than personal unhappiness. I do feel that if I were in a position where I had a job, that paid decently, where I could manage to pay off my loans and manage to pay rent in New York, and manage all of the other dozen or so "duties" that modern existence imposes on the individual, I could learn to be happy and feel that I hadn't made a mistake in what I chose to do. But the uncertainty of it all is enough to make one crack. But we cannot sue our law school for failing to warn us that attending their institution may not be the best idea for us personally, the same way we cannot sue Coney Island because we got hurt on one of their wilder rides: we assumed the risk, and we should know ourselves better than an institution should know us. But I will say this: the institution has more information than the student at their disposal, and only sharing the good news while ignoring the bad news amounts to deception. In person, those affiliated with the school will offer a moment or two of truth. But in promotional materials, and likely on campus tours and information sessions, the good will be inflated so much that it appears the bad does not exist. And I often wonder how much my fellow students think about the bad, how they convince themselves that things will turn out fine, because honestly I am the only one that seems to worry about it. I don't want to be a Debbie Downer--haven't I said that before?--but in this age, in these times, it seems just about impossible to make a "good decision." If I could offer one piece of advice to high schoolers, it would be this: get an engineering degree in college. Or train to become an IT Professional. They may not be interesting topics relating to the humanities and philosophy that you can B-S your way through, but you will still have fun, and you will not be faced with a world that considers you superfluous and unrealistic in your hopes and dreams.

For the rest of us English majors and creative writing majors, what's done is done, and we have no choice but to keep dreaming, "like boats against the current, born ceaselessly into the past."

Top 10 Worst Cases:
10) Harms v. Sprague (Property) - if it involves mortgages and concurrent ownership, have fun.
9) Semtek Intl Inc. v. Lockheed Martin Corp. (Civil Procedure) - who knows what this means.
8) Erie Railroad v. Tompkins; Guaranty Trust Co. v. York; Byrd v. Blue Ridge Rural Electric Cooperative; Hanna v. Plumer (tie) (Civil Procedure) - these cases are important, and painful.
7) Gonzales v. Carhart (Constitutional Law) - for a gruesome description of a partial birth abortion.
6) People v. Anderson (CA Supreme Court, 1968) (Criminal Law) - for a gruesome crime.
5) Rothko v. Reis (Property) - for one page that is ridiculously complex.
4) Allied Steel and Conveyors, Inc. v. Ford Motor Co. (Contracts) - for difficulty of summing up facts. 3) Morrison v. Olson (Constitutional Law) - for appearing 3 times in casebook, and being annoying.
2) Ultramares Corporation v. Touche (Torts) - almost completely incomprehensible.
1) Parklane Hosiery v. Shore (Civil Procedure) - an important case, and painful.

Edwards v. Sims (Kentucky, 1929)

At the beginning of the academic year, it was suggested to me that I should write reviews of cases on this blog in the same way I wrote reviews of books. Now, I did not think I had the time to do this (indeed, writing about every single case would become unbearably time-consuming, and while my next post may be a milestone (#150), had I done this I might be approaching #1000, seriously diluting the quality I have endeavored to achieve on Flying Houses), but I promised myself that I would call attention to this single case from my Property class. I promised myself that when I covered it in my outline, I would transcribe a good portion of its dissent.

Now, our professor in this class did not seem to like this dissent very much. He claimed it "goes on...and on....and on...." True, when it goes on, it does not discuss legal principles. However, there are plenty of opinions that go on, and on, and on, and make one positively drowsy. I have mentioned many times on this blog that "normal people" in 2011 think reading novels is "boring." If you think that is boring, do not go to law school (more on this later).

Whatever the legal utility of the dissent, it was the single-most transcendent reading experience of the year for me. I showed it to my roommate one night, and tried to read it aloud. I could not. I could not stop laughing. He read it aloud instead and agreed that it was fantastic. Perhaps it is unintentionally hilarious, but it is also striking in its beautiful quality.

Some discussion of the facts may be necessary. This is a case about a cave that was discovered underneath a person's land. Edwards discovered the cave, and he improved its conditions, and opened it up as a tourist destination in Kentucky. (This reminded me greatly of "The Lost Sea," an underwater lake in a cave in Sweetwater, TN, which I had planned to visit with a friend, but which unfortunately never came to pass). His neighbor brought an action claiming the ad coelum doctrine, which posits that a person owns everything above or below his land. The cave was beneath his land, and he claimed a right to it. The court held in favor of the neighbor.

The dissenting judge, Logan, found this incredibly unfair (and I agree with him). For the first two pages, Logan mostly keeps to legal principles, while still affecting a somewhat poetic manner. However, by page 3, he completely shifts his focus to a comparison of this cave (The Great Onyx Cave) to Hades, extolling the virtues of the brave workers who excavated it. The best possible explanation I can make is that he smoked a lot of weed and then wrote the part that begins here:

"...Edwards owns this cave through right of discovery, exploration, development, advertising, exhibition, and conquest. Men fought their way through the eternal darkness, into the mysterious and abysmal depths of the bowels of a groaning world to discover the theretofore unseen splendors of unknown natural scenic wonders. They were conquerors of fear, although now and then one of them, as did Floyd Collins, paid with his life, for his hardihood in adventuring into the regions where Charon with his boat had never before seen any but the spirits of the departed. They let themselves down by flimsy ropes into pits that seemed bottomless; they clung to scanty handholds as they skirted the brinks of precipices while the flickering flare of their flaming flambeaux disclosed no bottom to the yawning gulf beneath them; they waded through rushing torrents, not knowing what awaited them on the farther side; they climbed slippery steeps to find other levels; they wounded their bodies on stalagmites and stalactites and other curious and weird formations; they found chambers, star-studded and filled with scintillating light reflected by a phantasmagoria revealing fancied phantoms, and tapestry woven by the toiling gods in the dominion of Erebus; hunger and thirst, danger and deprivation could not stop them. Through days, weeks, months, and years--ever linking chamber with chamber, disclosing an underground land of enchantment, they continued their explorations; through the years they toiled connecting these wonders with the outside world through the entrance on the land of Edwards which he had discovered; through the years they toiled finding safe ways for those who might come to view what they had found and placed their seal upon. They knew nothing, and cared less, of who owned the surface above; they were in another world where no law forbade their footsteps. They created an underground kingdom where Gulliver's people may have lived or where Ayesha may have found the revolving column of fire in which to bathe meant eternal youth."

"When the wonders were unfolded and the ways were made safe, then Edwards patiently, and again through the years, commenced the advertisement of his cave. First came one to see, then another, then two together, then small groups, then small crowds, then large crowds, and then the multitudes. Edwards had seen his faith justified. The cave was his because he had made it what it was, and without what he had done it was nothing of value. The value is not in the black vacuum that the uninitiated call a cave. That which Edwards owns is something intangible and indefinable. It is his vision translated into a reality."

"Then came the horse leach's daughters crying: 'Give me,' 'give me.' Then came the 'surface men' crying, 'I think this cave may run under my lands.' They do not know they only 'guess,' but they seek to discover the secrets of Edwards so that they may harass him and take from him that which he had made his own. They have come to a court of equity and have asked that Edwards be forced to open his doors and his ways to them so that they may go in and despoil him; that they may lay his secrets bare so that others may follow their example and dig into the wonders which Edwards has made his own. What may be the result if they stop his ways? They destroy the cave, because those who visit it are they who give it value, and none will visit it when the ways are barred so that it may not be exhibited as a whole."

"It may be that the law is stated in the majority opinion of the court, but equity, according to my judgment, should not destroy that which belongs to one man when he at whose behest the destruction is visited, although with some legal right, is not benefited thereby. Any ruling by a court which brings great and irreparable injury to a party is erroneous."

All judges should write like this. True, applications of legal rules to facts of whatever the present case may be are not always conflated by such poetic subject matter, but they really should make more of an effort. There should be a certain pleasure in reading judicial opinions. Sometimes, they are pleasurable. Many law professors speak of Cardozo as the be-all, end-all of linguistic masters. Holmes is similarly held up on a pedestal. As much as I may disagree with much of what he has to say, one cannot deny that Scalia sometimes strings together an entertaining phrase or two. One of the first dissents I read, by Justice Black in Goldberg v. Kelly, I found similarly great. I should state that I am a huge fan of Posner, and that if I were a much better student, had a background in economics or engineering, and had gone to say, Northwestern or U Chicago, it would be my "dream job" to be his clerk or intern. Kozinski has also written more than his fair share of very humorous opinions.

Yet these moments of literary epiphany in law are rare. 95% of the opinions I read are boring, tiresome, and as dry as a math textbook, despite the usually incredible circumstances they are called upon to adjudicate. I would love to be on a journal next year, and write a "note" on this topic, but unfortunately I doubt it would be supported by the staff. You are supposed to write about novel legal issues that have not been addressed by anyone before. I would love to write a biographical note on Logan, to see what his other opinions looked like, and to gauge his legal philosophy, or to write about the phenomena of poetic or humorous judicial opinions in general, but I am afraid this would not be allowed. Note that this is one of the reasons I hate law school. There, I said it.

What legal issue is important to me, that is novel, that no one has addressed? Something in intellectual property law perhaps, copyright, whether posting large sections of text from novels is legal (I hope so). But this is not something I care particularly deeply about. My 4 "followers" (and I cherish each and every one of them) may know that the only thing I care particularly deeply about is literature, and creating my own, in a search for perfection or transcendence. It is a shame that there is so little money associated with such a venture. It is what led me to think a position within the legal profession was the next best thing. It is not. I do not think it will (would?) be the worst job in the world, but what you have to go through in order to get it is certainly one of the worst things in the world. Oh, I know it must be very hard to get a PHD or an MBA or CPA certification, and probably MD too. However, I think psychologically, there is nothing more difficult or painful, particularly going through it from 2010-2013 at a "2nd tier" school in New York City.

It is time to draw this post to a close. The next post I write will be after May 13th. It will be a reflection upon the entire year. The post to follow that will be a commentary on the phenomena of "scamblogs." That post will be dedicated to every one who is considering going to law school, or who has already sent in their seat deposit for the class of 2014. I now must return to my outlining. Good night, and good luck.

A Lawyer Walks Into a Bar...- Dir. Eric Chaikin

About a month ago, I was up around midnight on a Saturday night, searching randomly around documentaries on Netflix. I came across this movie and found it worth writing about on Flying Houses for several reasons. First of all, there are many films and television shows about the legal profession, but they never address the boredom and mundanity of it all. They make it seem exciting. In a review on Flying Houses from about a year and a half ago (here http://flyinghouses.blogspot.com/2009/11/lawyer-myth-rennard-strickland-frank-t.html), there contained a quote from Roger Ebert to the effect that nothing could be more boring than an absolutely accurate movie about the law. I am sure that, were I to read The Lawyer Myth again, I would not review it so easily. Or perhaps it would be more illuminating, a quicker read, and less boring at points. Any books published for the general public will be less tedious than the mechanical methodology of a judicial opinion. There are plenty of books about the legal profession, but few films, and owing to people's inability to find time to read, or general laziness, it seems that more should be made in the near future.

There are plenty of feature films, but as already mentioned, they do not expose the mundanity. This film exposes the mundanity, but in a way that still makes law school seem like fun. Or rather, there is little discussion of the actual 3 years. The focus is upon the two and a half months in between graduation--second half of May, June, and July--and the hell that newly-minted J.D.'s must undergo in California. They face a Bar Exam with a 39% pass rate, the lowest in the country. At least, that is the percentage the film cites. The figures I find are 44% or 46% from 2004 or 2005. In 2009, it was 49% (and in 2008 it was an impressive 54%)--also these are "overall" numbers--the first-time numbers are generally a bit higher.

This film follows six different aspiring Bar-passers. I say that because one of them is a social worker by trade who has taken the Bar exam about forty times. Many organizations utilize both social workers and attorneys, so maybe actually he would just change his position where he was working. He has consistently failed the Bar and it inspired him to write an article called "Fuck the Bar," and at one point in the film he shouts it at the building where they are all taking it in Ontario, CA.

The five others graduate from various schools. There is a girl who is part-Native American and who says she was a 50% actress/50% law student while attending UCLA law school, the most prestigious school represented. She has a scholarship or a grant from the Tribe she is affiliated with. In one scene, she should be studying for the Bar, but instead she is out partying, and I am surprised the footage of that remained in the film, though it does make for its most hilarious moment. It seems almost staged.

I think THREE of the six actually went to Loyola Law School, which is why I found this so worth writing about, as I nearly attended that school in a dead-lock (decided about a year ago) with its arguable "sister-school," where I now reside. One of them is a guy who graduated the year before, and he is taking the Bar his second time. The two others are girls who have just graduated that year. I realize now that it is hard to write this review without getting deeply into their personal stories.

The last person went to People's College of Law in L.A. and some of the scenes with the director of the school are some of the best in the movie too. I've forgotten the quotes she has but practically all are classic. The student in question is a Mexican immigrant mother who is in her late 30s or early 40s. Some of the scenes with her are very moving, and her story of going through community college in East L.A. and making her way through law school to become a potential attorney may inspire those in situations where the odds seem improbably stacked against them.

I do not want to give away the ending but let us just say that it is not very surprising.

I do not have much to say about this film except that I am glad it exists. However, it was released in 2007, and shot in the summer of 2006, so there is very little in the film to suggest that the economy is bad, particularly for lawyers. Now there needs to be a new movie. Nothing about law school translates as well in documentary form as the Bar, because it is the actual end of all the b-s. It would not be feasible to make a movie about all 3 years of law school. I do think a good movie could be made about the first year. There are many crucial moments that would translate well. The orientation, the first month of classes, the legal writing assignments piled up on top of the other work, the different briefing methods, note-taking methods, the midterms, if any, and finally the exams---followed by the grades, which are "all that matter," the next semester classes, the internship search, and finally the last exams, which will determine class rank for OCI, hiring for summer associates, and potential hiring for graduates. Of course the end of the first year is far from the end, and so no real closure could be given. Law school is not properly applicable to a documentary context, but should be portrayed in a feature film, with much drama and much mundanity. This would help that percentage of law students that enter with nebulous ideas of what it is going to be like, and where it is going to lead.

1L (also previously reviewed here) and the The Paper Chase may be instructive, but they portray Harvard Law School in the 1970s. While the actual material students must read in the first year may not have changed appreciably, the general atmosphere pervading the profession has, as has society at large. I want to see a movie that shows 1/3 of the students at an "average" school going on Facebook or playing Scrabble on their computers while in class. I want it to focus on like, maybe 6 students, one who is perfect and gets straight A's, blah, blah, blah, another who is far from perfect and gets bad grades and looks like an idiot when they have to talk in class, who worries about ever getting a job and wants to drop out, and the other four in varying degrees in the middle, maybe one person who commits "sectioncest" and has a romantic comedy storyline, maybe one who is super-depressed and breaks out crying in the middle of class or kills themselves, maybe a totally average student who gets through everything alright and ends up with a job, and is generally happy, and then maybe another totally average student who maybe ends up with a job, but maybe has serious financial difficulties, and always wonders if they made the right decision, if there wasn't something else they'd rather be doing.

A feature film like this would lay out all the issues, and actually be useful to those considering applying. A potential student will probably not find A Lawyer Walks Into a Bar.... and decide they don't want to go. No matter how bad people make the Bar seem, I think students will always think, "Well, I did the LSAT and nothing can be more stressful than that..." However, it seems clear to me now, that the Bar is more stressful than anything, after watching this film. If you fail, what do you do? You take it again. Or else you keep your J.D. on your resume, and maybe some HR people think you may have other skills, but have questions that you can either answer or not, at the risk of looking like a liability. Really, at the end of the day, nothing is more stressful than getting the job, and actually living under the terms of the profession. Once that is achieved, there should be happiness, because all of the hoops and hurdles have been jumped through and over. Unfortunately, from what I can tell, happiness does not generally follow. Rather, lawyers tend to look back fondly on their law school years. It seems as if many are guarded individuals who would rather not open up about their personal feelings on the subject, but will be happy to tell people not to go if they aren't absolutely sure they want to go.

The financial aspect of taking BarBri and the Bar, after the enormous financial burdens of law school is vaguely addressed in this film, but I still think my feature film idea would get this across better. Now, movies extolling Christian ideology by Christian filmmakers always find financing despite not expecting to reach a critical mass, but who will finance my movie? The ABA? The NYC Bar Association? A profession is hardly a religion. But in a profession so deeply concerned with regulation, one would think there would be a way to regulate law schools in a manner that a disproportionate number of students do not graduate with little hope of employment. Unfortunately, such a massive overhaul is unlikely to be seriously considered.

P.S. If anyone actually takes my idea without coming to me for use as a creative consultant, it will make me very sad.

Special Comment - On Using Movie Quotations for Commemoratory Purposes; on “ATL,” on Cyber-bullies, on Entering a “TTT” at a Time of Economic Turmoil

It has been a long time but here is the first new post on Flying Houses since August. This probably isn’t the best time to be doing it, either, as I should be taking down the notes I just wrote on Compulsory Joinder and Intervention, and transcribing them into my computer. But we can only be such machines when it comes to legal work as may be reasonably expected.
This is a not a personal check-up 9/10 of the way through the semester. This is a response to a (now not so recent) post on a popular website for the legal profession. Here is a link to that post: http://abovethelaw.com/2010/11/brooklyn-law-2010-class-gift-is-more-like-a-terrible-high-school-yearbook-quote/.

For those uninitiated, Above the Law is an online legal tabloid that is basically the TMZ or Perez Hilton of the legal profession. It is something to read on a lunch break, something to laugh at, nothing to be taken seriously. However, this post in particular affected me in such a personal way that I seriously wanted to go out and kill myself, and I would entertain a claim against them for negligent infliction of emotional distress, but I know that would probably not be a very good claim (perhaps it would be protected by the first amendment? perhaps I could not prove any direct physical injury?). Why do I have such a “thin skull” you might ask?

The post itself is nothing particularly untoward. It merely claims that the Class of 2010 made a mistake in the quote they decided to put on a plaque in the library. The quote is from A League of Their Own, a film about women in the 1940’s who decided to form a baseball league to counteract the suspension of Major League Baseball and its many players signing up for service in World War II. There are many quotable moments in the film, but the one the Class of 2010 chose happened to be this: “It’s supposed to be hard. If it wasn’t hard, everyone would do it…The hard is what makes it great.” Automatically, this is turned into a sexual reference, which doesn’t really make sense given the second sentence, but this is immaterial. Should quotes from movies be plastered on the walls of law schools? Don’t we have “higher values” than those of popular culture? (Please don't let us start believing that there are better quotes to be found in film than literature--even judicial opinions would be better fodder). The class has asserted that it strove to begin a tradition, whereby students would touch the plaque as they pass under it while coming down from the second floor of the library. I have not seen anyone do this and I am afraid that if someone was seen doing this, they would be laughed at.

However, there were many comments to this post that were certainly untoward, and a source of my emotional distress (one other article on ATL, written by a psychiatrist who had also been through law school, bemoaned the opportunities of those holding J.D.’s but seeking employment apart from the legal field, which also contributed to said distress). The very first one reads “Crooklyn = TTTT.” Now I am not sure what the fourth T signifies (TTT signifies “third-tier toilet,” a derogatory term for a school not ranked in the top 50 in the nation), but the statement itself, posted by someone known as nothing more than “$$$,” certainly sends a harmful message. The next comment, posted by “Wow,” points the reader to Brooklyn’s budget planner page on its website. It reads, “Lulz at the price tag for this dump!!” Is “Lulz” some variant of LOL or is it something more nefarious? BLS is expensive, but so are most law schools. Scholarships are the only way a student can justify the enormous price tag after already having been through so much previous education. The next comment is from Kenny Powers who is a character on the HBO series Eastbound and Down and he offers the prescient wisdom (for those of us walking into final exams as an already uphill struggle), “If at first you don’t succeed then maybe you just suck.” A couple others joke about how much Kenny Powers sucks, then someone makes fun of the “living with parents” column of the budget (taking housing out of the equation) because that is what students will be doing after graduation. From here on in, the comments become more sporadic and less focused. Apparently, “Watch your head,” was another option for the quotation. This would have been sort of eloquent given the state of legal hiring patterns in 2010. Someone brings up a better quote from the same movie: “You know, if I had your job, I’d kill myself. Wait here, I’ll see if I can dig up a pistol.” This would also have been better, but dark, very dark, and law schools should not be propagating dark thoughts, though they inevitably must.

Now comes the painful part—an alum from BLS posts and sticks up for the school, and legal education in general, saying that it will pay off over time, and not amortize or depreciate like a car. They then get taken to task for failing to discern that student loans accrue interest and therefore may be considered technical amortization/depreciation. Another person says the plaque is fitting for BLS students because women baseball players ended up unemployed and broke. Other potential quotes are considered from the movie: “There’s no crying in law school” and “You’re gonna lose. You’re gonna lose.” There is then a discussion of a possible typo on the plaque in the use of the ellipsis. Blue-booking rules are debated. Someone else points out that all of the comments are cynical, and that everyone posting is an a-hole. A very dry reply read “Law students generally are not cynical. You have to graduate and realize the harsh realities of life and being unemployed/underemployed with massive student loan debt before the cynacism (sic) kicks in.” Another person named “<2012>” simply writes, “You are DOOMED.” Another person suggests the school hang a plaque saying, “See 11 U.S.C.A. 523(a)(8).” This was fairly clever as it forced me to use WestLaw to look up what it meant. Here is a quote that seemed particularly appropriate: “Let me sum up what I think of you when I hear you go to Brooklyn Law (particularly class of 2012 or 2013): (1) You weren’t smart enough to get into a better school, and (2) you’re even stupider than I would have thought otherwise because you’re paying an exorbitant amount of tuition. WTF are these people thinking, particularly those who enrolled this year in the middle of a recession?”

The other contenders for the quotation for the plaque are then listed near the end of the thread. (none of which I like very much, except for this one: "The bravest sight in the world is to see a great man struggling against adversity." -Seneca) And there we are. I luckily did not post anything myself on this thread, because then I would know the pain of a direct attack. I have had enough experiences with that on the Speakeasy at PW.org to know better.

I don’t know if a legal education is worth it or not if you go to a TTT school and this post has given me certain doubts. Of course, one can always tell themselves to buck up and give it their best effort regardless, but can you really forget you’ve seen something awful? Or does it pay to not have an “Ostrich problem?” If I am substantially certain that my education is a waste of time, but I insist on pretending that everything is going alright, aren’t I just as guilty of wasting an education? This is like whether or not I wanted to check my Torts midterm grade last week. I could have not looked, and felt better, but because I did look, I know I am in grave danger, and some drastic measures must be implemented if I am to recover and not waste this opportunity I’ve spent years putting together.

Or are cyber-bullies just out to get everyone regardless, to hide behind their computers and make acid-tongue comments in an effort to convince strangers that they are witty or intelligent, when they really just come off as mean. Or is it just a way to blow off steam? I do know one thing. I don’t feel very good about where I am or what I am doing. It’s not the website that made me feel this way, but it certainly didn’t help matters. Assumption of Risk would be their defense in an action. Law students attending less prestigious schools or with poor academic performances should enter ATL at their own risk. If you want to ride “the Flopper,” you should know that you may fall down. You may not sue ATL for NIED because it is on the internet, and the internet should not be able to hurt you physically. Also, cyber-bullies are not within the exclusive control of ATL. They are not employees—they are followers, they are fans.

I have to bring in the personal element and decide whether or not BLS is a good choice or not. There are a few frustrating elements about this school.

#1: The Bookstore. Admittedly a minor issue, but 1Ls had a rude awakening this year when they found that few of the books they ordered would be available from the bookstore until the second or third week of class, forcing us to find the people with the books, xerox assignments, and generally feel that we did not have the tools to properly comprehend the material. However, the bookstore apologized and offered to pay shipping costs incurred from books bought from outside sources.

#2: The Halls, The Claustrophobia: I always preface this complaint with the statement that, for me, the choice came down to Loyola Law School in Los Angeles, or BLS. I do not think Loyola has the same problem as BLS as their campus has nearly a dozen buildings or so and everything is very spread out and aesthetically pleasing. BLS, by contrast, slams more than 1,200 students together in a giant rectangular building, and puts most of the major classes on floors 4, 5, and 6, resulting in bottlenecks at elevators and sometimes stairwells and hallways—not to mention a generally cramped atmosphere inside the actual classrooms. This underscores the fact that we are all competing for a very limited number of positions and that all of this hard work and discipline and struggle may end up as the ultimate nightmare yet.

#3: The Competition. Brooklyn may be ranked #67 in the nation or whatever, and #4 or #5 in New York City in general, but that does not mean that its students are less intelligent. Oh sure, we scored lower on the LSATs, that is probably a given—but I’m sure there’s some of us that didn’t score that low, and are receiving a full ride. I’m guessing the majority of my classmates, however, are in the same position as me, which provides reasonable tuition assistance, with the stipulation that you must finish in the top 40% of your class (roughly a B to B+ overall GPA) to reclaim it in subsequent years. When I put in my seat deposit and signed my promissory note, I thought I’d coast through law school, I thought I’d be a star, I thought I’d get straight A’s and get offered a big law firm job at OCI and pay off my debt in no time and pay $3000 a month in rent, or even buy my own place. A few months later, and reality has given me a swift kick in the rear again. I will say this about my classmates—sometimes, it can be awkward, if you know someone by face, and you maybe even know their name, but you have not introduced yourselves, for whatever awkward reasons you have. And it may be the case at every law school, but my classmates constitute the smartest, most hardworking group of people I have ever been surrounded by, and I thought I could throw down, I thought I could keep up with anyone, but they are a tough group to be scaled against on a curve.

But maybe we aren’t that intelligent, as the one comment that seems particularly more harsh than the others states. Maybe we have truly nebulous reasons for being here in the first place. People ask me what kind of law I want to practice, or what kind of lawyer I want to be, and I have no idea. I think I am going to start saying “any area that will hire me” or “the kind that has a job.” I thought that going to law school would open up more career options, but it has really just opened up one new area—and one that is extremely competitive. I did not fully realize the gravity of this situation until a couple months into the semester, when we started discussing internship applications.

I will apply for internships starting now. My grades will be out January 15th. There is still hope that I could ace all of my exams, have an awesome GPA, get an awesome internship, get on the awesome law journal, keep my awesome scholarship (maybe even get a better one), and live an awesome life in Brooklyn Heights. [Which reminds me that I never pointed out the positive qualities of BLS. I do think it is the best area to go to law school in New York City because of its proximity to the courts in Brooklyn. I do think that the receptions, events, and other school-sponsored activities it hosts are some of the best I have ever attended (but this also has a negative effect—I have personally spread myself thin between the activities, the clubs, the job search, reading assignments, outlining, and all of the other facets that make up a law student’s life). I do think Brooklyn Heights is a great area (though not as “exciting” or “fun” as the Village may be for NYU students).] But there is also the reality that this is a pipe dream, and a dream that will end when my exams are finished and I see my grades, which, if my first midterm is any indication, will prove horribly depressing and provide material for the most difficult period of my life yet. For now, I can grind, and I can hope that I can change my approach, and I can pray that a miracle will occur, and all of my classmates will suddenly become extremely stupid the morning of the exam, and we will all do very poorly, and it will be okay. But experience knows it is not so.

So I will press on, and I will not think about how tenuous this life may be for me, and I will focus, and maybe it will all work out yet. I don’t even want to express a doubt on the matter (!) because it seems like throwing in the towel, or setting yourself up for disappointment. Let me say this: as frustrating as the whole law school thing may be, if you can’t get into a top 14 (or even top 50) school with any kind of funding, it is no more frustrating than any other technical training for any other job. The main difference comes with the price tag, and it’s the element that can cause serious breakdowns. When cyber-bullies know what is at stake, they should think before they post something harmful or injurious. I am sure there have been suicides because someone has posted something mean about someone on Facebook, and maybe this will constitute a tort action. But when the postings are anonymous, other questions of privacy may be raised. I am going to end this long and rambling post by saying that I am very proud that Flying Houses has always had positive, happy comments. If this “special comment” receives any comments, I hope they will engender a real and beneficial discussion, and not a laundry-list of urban dictionary-isms meant to make others “in the know” laugh in appreciation.