"So why is it important that we have a multitude of desperate law school graduates and many more politically ambitious rich than 30 years ago?"

"Past waves of political instability, such as the civil wars of the late Roman Republic, the French Wars of Religion and the American Civil War, had many interlinking causes and circumstances unique to their age. But a common thread in the eras we studied was elite overproduction."

Excerpt from an article at Bloomberg.com (by Peter Turchin, vice president of the Evolution Institute and professor of biology and anthropology at the University of Connecticut) titled "Blame Rich, Overeducated Elites as Our Society Frays."

Worth clicking for the illustration, a diagram of how this terrifying process, depicting "Unemployed Lawyers" as a crucial link in a chain between "Wealth Glut" and Elite Fratricide."

But the chain can be broken — "catastrophe isn’t preordained" — and you can probably guess how. But first, you gotta believe the catastrophe is coming, so soften up and get scared.

If you spend $1 million on your defense lawyer, how can you credibly claim you didn't even get the constitutional minimum, effective assistance of counsel?

Cynics will say, the way to do that is: 1. Get convicted because a well-paid lawyer wasn't able to persuade a jury to see reasonable doubt, and 2. Pay more money for more lawyers and persuade a judge of what you need to overturn the conviction. And super-cynics will add: 3. Be a Kennedy.

But just because you paid a million dollars doesn't mean your lawyer was any good. Michal Skakel picked a TV-talking-lawyer-head. And maybe that's exactly the screw-up a Kennedy would make — mistaking superficial appearance and fame and money for competence.

Which state attorneys general "were throwing away important points of law, not just for their state, but for the other 49"?

In his New York Magazine interview, Justice Scalia says that these days, when the states have cases in the Supreme Court, they send in "people who know how to conduct appellate argument." But:

In the old days, it would be the attorney general—usually an elected attorney general. And if he gets a case into the Supreme Court [pumps his fist], he’s going to argue it himself! Get the press and whatnot. Some of them were just disasters. They were throwing away important points of law, not just for their state, but for the other 49.

Who, specifically, do you think he might have been talking about there? I'll tell you who I thought of when I read that: Roger A. Tellinghuisen, the Attorney General for the state of South Dakota, whose argument in South Dakota v. Dole — the key case about Congress's power to attach conditions to spending — threw away an important point of law that could have limited the spending power. For years, when I teach that case, I've urged students to listen to that argument as a lesson in what not to do.



Tellinghuisen was only prepared to talk about the 21st Amendment as a limit on the Spending Power. There's an argument in an amicus brief from the National Conference of State Legislatures that O'Connor pushes Tellinghuisen to use, about how related the condition needs to be to the spending, and Tellinghuisen says he's "not prepared to argue that particular fine point." His case is about a condition that relates to the sale of liquor, so he's all about the amendment that preserves state legislative power in that area, as if all that matters is winning this particular case — which he didn't — and not about the doctrine that will apply to many other cases in the future.

In the 7-to-2 opinion in Dole, written by Chief Justice Rehnquist, we see that the thrown away point in a footnote (boldface added):

Our cases have not required that we define the outer bounds of the "germaneness" or "relatedness" limitation on the imposition of conditions under the spending power. Amici urge that we take this occasion to establish that a condition on federal funds is legitimate only if it relates directly to the purpose of the expenditure to which it is attached. See Brief for National Conference of State Legislatures et al. as Amici Curiae 10. Because petitioner has not sought such a restriction, see Tr. of Oral Arg. 19-21, and because we find any such limitation on conditional federal grants satisfied in this case in any event, we do not address whether conditions less directly related to the particular purpose of the expenditure might be outside the bounds of the spending power.

The Court found spending on highway construction sufficiently related to the age at which a person is allowed to buy alcohol. Dissenting, Justice O'Connor said:

When Congress appropriates money to build a highway, it is entitled to insist that the highway be a safe one. But it is not entitled to insist as a condition of the use of highway funds that the State impose or change regulations in other areas of the State's social and economic life because of an attenuated or tangential relationship to highway use or safety. Indeed, if the rule were otherwise, the Congress could effectively regulate almost any area of a State's social, political, or economic life on the theory that use of the interstate transportation system is somehow enhanced.

What an astounding missed opportunity to limit conditional spending! 

How big law firms entertain summer associates.

They really do try, apparently, even during these troubled times. Above the Law nominates 6 law firm entertainment events for the best of the summer of '13, and you can vote for the best. I voted.

"The legal profession is 'right-sizing,' and law schools should follow suit."

Argues David Lat, rejecting the alternative of keeping up the present incoming class size by lowering admissions standards. The shrinkage model is painful:

Last week, we heard reports of one law school basically axing its entire junior faculty. All of the untenured professors received notice that their contracts might not be renewed for the 2014-2015 academic year. Ouch.

"Washington & Lee pioneered an experiential third-year program that has won accolades"... but employment stats for graduates are terrible. .

Lawprof Deborah Merritt — who does clinical ("experiential") teaching herself — explains the program at Washington & Lee’s School of Law (which aims to make grads "practice ready"), shows the truly bad results for students who had reason to hope they'd be more (not less!) marketable, and comes up with 4 possible reasons for the unintended consequences:

1. Practice-ready lawyers don't cause there to be more jobs openings (and they might even cause there to be fewer jobs, if these people can do more work sooner).

2. For all the talk about practical training in law school, employers might not care quite that much when it comes to choosing among job applicants.

3. The practical experience in law school might not align closely enough with the job. Merritt teaches a criminal defense clinic and admits that students who take this clinic "are stereotyped as public defenders, do-gooders, or (worse) anti-establishment radicals–even if they took the clinic for the client counseling, negotiation, and representation experience." She also asks: "If a student chooses experiential work in entertainment law and intellectual property, does the student diminish her prospects of finding work in banking or family law? Does working in the Black Lung Legal Clinic create a black mark against a student applying to work later for corporate clients?" The political slant of law schools — especially when it comes to who wants to teach clinics — tends to result in clinics that may send the wrong signals to the employers who have slots to fill.

4. Maybe the program stimulates "higher or more specialized career ambitions" in the students, so that they don't want the kinds of jobs that are available. The actual practice of law — as experienced by most lawyers — might not be what these supposedly "practice-ready" graduates want to do.

I'm sure you can add to this list or synthesize these elements.

Affirmative action is not what it used to be.

The NYT reports.

Uncomfortable paragraph on page 2:

A black associate at one Houston firm, who requested anonymity so as not to jeopardize his chances of making partner, used a familiar legal term to describe his unease at work, saying he sometimes felt there was a “rebuttable presumption” that he was there to fill a quota and was not as qualified as white colleagues.

WaPo article "On IRS issue, senior White House aides were focused on shielding Obama" seems to be about throwing White House counsel Kathryn Ruemmler under the bus.

Here's the article.

[White House counsel Kathryn Ruemmler, White House Chief of Staff Denis McDonough, and other senior White House aides] agreed that it would be best not to share [news of an upcoming inspector general’s report on the Internal Revenue Service] with President Obama until the independent audit was completed and made public....

... Obama’s top aides were trying to shield him from any second-term scandal that might swamp his agenda or, worse, jeopardize his presidency....

But Ruemmler and McDonough’s careful plan for the IRS was upended on May 10, when Lois Lerner, a senior official at the agency, broke the news.... Senior White House officials were stunned to see the IRS trying to get ahead of its own story...

I don't know how much of this to believe, but the article strains to portray Ruemmler as narrowly legalistic:

Ruemmler views her mission strictly as advising Obama on the law and protecting executive branch prerogatives, colleagues and friends said. “She’s a lawyer’s lawyer,” said Neal Katyal, acting solicitor general in Obama’s first term...

Yet Ruemmler’s lawyerly focus sometimes conflicts with political imperatives....

In the IRS case, many prominent Washington lawyers say Ruemmler made the sensible legal call. She protected her client — Obama — by distancing him from a politically sensitive problem and ensuring that he could not be accused of meddling in an inquiry.

How "protected" is he from the criticism that he was out of touch and failing to protect us?

As counsel, Ruemmler is a regular presence in the Situation Room and the Oval Office, making legal judgments....

“I think she’s one of the most cool-headed people in the entire White House and does a lot to ensure that nobody gets themselves in trouble,” said [Stephanie] Cutter.... “she did the president a huge service by keeping it away from him until the IG report was final. That’s her modus operandi. . . . It makes everything that much cleaner.”

Much cleaner! Ruemmler is fastidious about keeping the President clean.

Associates say the way the IRS situation was handled fits with Ruemmler’s approach to making decisions: wary to act before knowing all the facts, but then decisive once they are clear.

“She’s very deliberate,” said Akin Gump lawyer John M. Dowd, a friend. “There’s no reason to go busting into it. . . . Even though it’s a hot subject and there’s going to be some political implications, to me you wait until you’ve got a work product in your hands.”

See how all these compliments are really blaming her for the President's being out of touch?

Unlike most senior White House aides, Ruemmler has no campaign experience. Although she has worked in Washington for years, as a prosecutor and as a litigation partner at Latham & Watkins, former colleagues said she showed little interest in politics.

So we're supposed to think that keeping the President insulated from knowledge that could be used against him wasn't political. It was the doings of a nonpolitical, legalistic lawyerly lawyer's lawyer.

Clinton White House counsel Lanny Davis said Ruemmler lacks political and media savvy. He said she had “an obligation to give the president a heads-up and generally describe what might be coming down the track [on the IRS] so you can do crisis management planning.”

So now you see, her lack of political savvy led to something that wasn't good for the President politically. She was just so darned law-focused that she failed to meet an obligation. The article ends with 2 seeming defenses of Ruemmler, but they reinforce the theory that Obama knew nothing because Ruemmler was completely legalistic and not at all political:

1. David Plouffe said others gave political advice, and Obama "needs a top-flight lawyer who’s going to run a good process, and that’s what she’s done."

2. Beth Wilkinson (Washington lawyer and former Justice Department official) said:  “She stays in her lane, which people appreciate.... She really sees her role as the counsel to the president and to protect the presidency and provide legal advice. She doesn’t try to do other people’s jobs.”

When the lawyer testifies against his client...

... and the client is O.J. Simpson.

[Yale] Galanter hesitated and spoke only after he paused, breathed deeply and was reminded that Simpson had waived attorney-client privilege.

"I'm very uncomfortable doing this," Galanter said.

Via TalkLeft, who says "Things aren't looking good for O.J., even though other lawyers involved in the case have supported O.J.'s claim of ineffective assistance of counsel...").

"Justices are a more diverse group than the lawyers who argue at the Supreme Court."

"In roughly 75 hours of arguments at the Supreme Court since October, only one African-American lawyer appeared before the justices, and for just over 11 minutes."

The numbers were marginally better for Hispanic lawyers. Four of them argued for a total of 1 hour, 45 minutes.

Women were better represented, accounting for just over 17 percent of the arguments before the justices.

In an era when three women, a Hispanic and an African-American sit on the court and white men constitute a bare majority of the nine justices, the court is more diverse than the lawyers who argue before it.

"Three women, a Hispanic and an African-American" is a funny turn of phrase to describe a set of 4, not 5, persons.

Anyway, this is so not surprising. Court appointments are made by Presidents in a swirl of political theater. There's a sizable set of individuals capable of doing good work as Supreme Court Justices. How could a President resist making the final pick in a manner that boosts himself politically (and/or makes it hard for his political opponents in the Senate to say "no")?

But when your case is on the line in the Supreme Court, why would you indulge in political gestures (other than to cause the Justices to gravitate toward your position)?

"I would like to take a moment to acknowledge your hurt, as well as the letter you sent to me via your attorneys."

"As a father myself, I cannot imagine the pain that your family has had to endure," writes Lil Wayne to the family of 1955 murder victim Emmett Till, whose attorneys corresponded with him over his lyric "Beat that p***y up like Emmett Till." The linked article stresses that Lil Wayne did not, technically, apologize. I'm drawn to the words "the letter you sent to me via your attorneys" and just guess that any standoffishness has to do with the use of lawyers as the way to start a conversation with somebody.

Above the Law produces a "Top 50 Law School Rankings."

"The basic premise underlying the ATL approach to ranking schools: the economics of the legal job market are so out of balance that it is proper to consider some legal jobs as more equal than others."

In other words, a position as an associate with a large firm is a “better” employment outcome than becoming a temp doc reviewer or even an associate with a small local firm. That might seem crassly elitist, but then again only the Biglaw associate has a plausible prospect of paying off his student loans.

In addition to placing a higher premium on “quality” (i.e., lucrative) job outcomes, we also acknowledge that “prestige” plays an out-sized role in the legal profession. We can all agree that Supreme Court clerkships and federal judgeships are among the most “prestigious” gigs to be had. Our methodology rewards schools for producing both.

Take that for what it's worth. Back when I was in law school, turning away from big law firms was what the best people did. But there are different ways of being elitist, and I certainly agree with the proposition that people who pay law school tuition and put themselves through the grind of law school are doing it with the goal of getting an excellent (or at least a good) career in law.

In that light, the big red banner in the middle of the page over there says a lot: "44% of 2012 graduates did not secure a job in the law!" Now, there were 46,364 of these graduates, and 56% of them did find long-term employment in jobs that require admittance to the bar, so that's actually a lot of jobs. Any given student is betting on himself, so how bad are those odds? Of course, many of the people who get the jobs end up hating them. So there's that.

You've got to decide for yourself. Don't just bumble into law school because it's an obvious thing to do to get on a career track if you're reasonably smart and can't think of anywhere else to go. That was never a good idea. It's just a worse idea now than it used to be.

"When I wear my wig, I know something big is going to happen."

"It makes me feel like I have more responsibility. I think I exude more energy than without it. It's magical."

Lawyers in Hong Kong, and the traditional wigs they love.

"It's a tradition that really dignifies our profession, especially in the context of our commitment to uphold the city's justice," says [Kevin] Tang....

The barristers' prestige emanates not only from the wig, but because they number in the hundreds, compared with the city's thousands of solicitors. Though solicitors have more training, top barristers are typically better paid and because they appear in court, have higher profiles as well. Even the Cantonese translation for barrister is "big lawyer," while the term for solicitor is simply "lawyer."

Solicitors would like to be allowed to wear the wigs.

"In a surprise move, the defense in the Kermit Gosnell murder trial has rested without calling a single witness."

"The news comes on the heals of a clarification by Judge Jeffery P. Minehart about a mix-up in the dismissal of one of the murder charges yesterday."

It's all in the closing arguments. What would you argue if Gosnell were your client?

A hostile environment toward women at Harvard Law School?

Women "just can't do as well" because of "the way the school is structured"?

Is it the way the school is structured or the way women are structured? Consider this analogy:

So I think what I would say to you is probably captured by the miners' canary metaphor — that the women in law school are the canary in the coal mines. So they're more vulnerable when the atmosphere in the coal mines gets toxic. The canary, because of its different respiratory system, is more likely to start gasping for air, and that's a sign that the atmosphere is toxic not just for the canary but for the miners as well. So it's a signal to evacuate.

Wouldn't it be a kick in the head if what's toxic about the structure is the demand that students grapple with analogies? A woman at Harvard is like a canary in the coal mine, a different and much more delicate species than the coal miners, but useful because the miners can see when the canaries keel over and get the hell out before they die too.

That might be sexist, saying women are far more fragile than men, structurally sensitive to the stressful environment. But that's said — watch the video at the link at 1:55 — by female lawprof Lani Guinier, so modify your understanding of the analogy accordingly.

You might have thought something like this: Harvard Law School is very competitive, and women can get in and compete equally with men, and whatever the outcome is is the way it should be. It was a tough contest, but — as Guinier conceded — men are much tougher, so more men did well, and women had their fair shot, and if the top of the class is 20% (rather than 50%) female, there's nothing at all wrong.

But maybe an excessively competitive and stressful environment is bad for everyone, and maybe women do help us all by noticing and complaining. The men, advantaged in the competition, could say keep it like this because we like winning, and it's our love for winning that drives us to win as the game becomes more and more competitive, but our culture, our civilization, is built on combining males and females. Think about the way opponents of same-sex marriage keep going back to the idea that the marriage of a man and a woman is the fundamental building block of society. Though I support same-sex marriage — individuals should be able to choose their life partner in accordance with their sexual orientation — I can see the good that flows from males and females figuring out how to live together.

I'm just trying to open up a conversation here. I'll come back to this later.

"More than 50% of law school graduates from the 2011 class aren’t earning enough to buy a house..."

That's referring to new law school graduates, so you might think: What's the big deal? Since when do new graduates assume they can up and buy a house? On the other hand, they're assuming a house costs $100,000. I don't understand that. Where are these law grads practicing?

"Congratulations, Mr. Starr!"

"As a result of your callous disregard for cherished constitutional rights, you may have succeeded in unmasking a sexual relationship between two consenting adults."

"This is where I will employ the term 'Althousenfreude'..."

"I would like to say Ann's arguments had no effect on me, but I cannot state this, realistically, as True. I have to acknowledge what I wish I could ignore or elide."

Quite aside from ssm, I'm very interested in the mental processes — the emotional metabolism — in forming opinions and making decisions. It's hard even to observe your own. You try or bumble into affecting the mental processes of others, but you don't really know how to do that. Imagine what would happen to us — politically and economically and personally — if others knew how to persuade us. Ah! It's impossible! There are so many politicians and salespersons and stalkers making their pitches. Even if the pitches were perfect, there'd be cacophony, ruining everything.

Persuasion is a mystery. But I will say that I have a superpower here — a strange superpower (which makes me a better lawprof than lawyer) — and that is that I don't feel any need to win. To me, the expression is complete in the writing. I blog for the intrinsic reward of writing and having readers. Thinking out loud — it's so thrilling and intimate and human! You give up the best part if you rework the expression in the hope of manipulating another human mind.

There's a place for writing as a means to an end, but it's not this place.

"[I]f the justices don’t rule in favor of gay marriage, it is the Court that will look bad."

Writes Nan Hunter in The Nation, "judging from the press coverage of the briefs."

This perception is an incredible achievement, a brilliant exercise in political framing by the lawyers and legal organizations behind the two cases, who mobilized the amicus show of force. The business brief and the Republican brief, especially, are clearly designed to provide political cover for the Court’s five conservative Justices.

"This perception" — refers, I think, to the way the Court will look in the future if it doesn't rule in favor of gay marriage. This conditional appearance of badness is "an incredible achievement," something that has already taken place. Whose achievement is it? Who is doing the perception? We, the people, presumably. But Hunter does not mean to say that those doing the perceiving have achieved This Perception. She must intend to give credit for the "incredible achievement" to those who have placed This Perception in the minds of the people.

Hunter seems to credit the lawyers who wrote the briefs, but how did the "brilliant exercise in political framing" leap from the briefs into the public's mind? It was the "press coverage of the briefs." The briefs were raw material for the journalists. It is the journalists who performed the "political framing" that created the incredible achievement of This Perception — the journalists, including Hunter, right here, telling you what to make of the raw material generated by lawyers on the anti-gay marriage side. She wants you to know their stuff is "political cover," even as she delights in the "political framing" accomplished by the lawyers on the side she likes. It's all political. Isn't that marvelous? Incredible! Brilliant!

But if it's all political, shouldn't the judiciary restrain itself and allow the political branches of government to go where they will? Implicit in Hunter's cries of delight is the belief that the Court longs for public approval and with The Perception in place — it's there, believe it, all the journalists say it's there — the Justices know there are 2 possible futures, the one where Court looks good and the one where the Court looks bad.

Brilliant!

Judicial opinions are "poorly written, legalese-riddled," and "read like over-the-top Marx Brothers parodies of stiffness and hyperformality."

Says Bryan Garner, trying to figure out why lawyers write so badly.

The poor lawyers! They are trying to sound like the lawyers who were trying to sound like lawyers who were trying to sound like lawyers who were... etc.

The stakes are high and the desire to sound professional and learned overcomes a native speaker's capacity for natural speech.

But there's also the problem that the arguments judges and lawyers are putting together are full of gaps. Clear speech would make that obvious.