Monday, September 25, 2006

Moneylaw: The Student Edition



or Trying To Game The (Law School) System

Due apologies to Jim Chen for cribbing his idea.

I'm no longer a J.D., and while I very much care about my marks (and they do matter), I feel less "pressure" about them. LLM students are graded on a separate curve here at Liberal College Law, and in general, at this stage, you feel less emotional and psychological pressure about it all--and that is what matters the most. Plus, while I work like crazy on my master's thesis and my independent research article, my courseload is manageable. Even though I have an goodly amount of reading per class (100 pages per week for Federal Courts, 200 pages per week for my "Courts As Engines for Social Change" seminar). But, after all, they are only two courses, and seriously, I remember doing a lot more work when I was taking 4 or even 5 classes in law school during one semester. Plus, work on my thesis and article is less structured work--I have no lecture hours, only unscripted till 3 am in the morning writing hours, and roughly biweekly or monthly personal due dates. Not a bad deal. I dont' sleep much, but it's on my own time and of my own volition.

The biggest draw about academia is not that you work less, but that you work on your own terms, and in general, whenever you want (with allowances for lecture, committees, meetings, office hours of course). Right now I am ill, charmingly consumptive in a Puccini-esque way (think Mimi in La Boheme, cough, le cough) and so I slept most of the day--and am working by night, slightly feverish, but quite alive. If I had to get up tomorrow morning, I'd be quite unhappy. As it is, my classes run only Tuesday, Thursday, and Friday--and the unscripted days in between and after mean all the world to me.

So while I pull in good long days (and weeks) of work, for some reason or another, I feel less pressure than I did as a J.D. There is not as much stress about "outlining" for one thing. I have only one class to outline. Dude, by now I know how to outline, and so I'm not so worried about it--I'm more worried about how well I'll do on the final, which I think J.D.s tend to forget when they do exam prep. You can prep all you want, but you still have to ace the exam. For me, there is a lot more pressure about research and writing, but as an aspiring academic, I feel like I should just suck it up and get used to that. And so I have, and will, and this is why I'm up so late at night/early in the morning.

More importantly, I feel like I'm playing less of a "numbers" game. Every law student tried to game the system, even though the house always wins. Gaming the system doesn't mean cheating, it means trying to be savvy (and those who were privileged enough to know this information going in were ahead of the game). You do the obvious things like look at grade distributions, read course evaluations, ask upperclassmen which professors to take, try to find some of the easier "and the Law" seminars (the permutations of that course title can bewilder). If you have to take mightily curved large bar courses, you find out the best professors to take, who has the best outline you can crib, etc. etc. Notice that in the above equations, considerations about how interesting the courses will be, or how useful in order to obtain a set of legal tools, or how valuable they will be to one's personal development as a lawyer (like say, a community economic development clinic) are noticeably absent. I'm not saying all law students think like this. But a lot, and I mean a lot do. A lot of students take courses not because they are interesting or even useful, but because the grade distribution for this particular seminar looks good (mostly A's, smattering of B's). A lot of students take bar courses they know they can float through because they have "the ultimate outline." This is a really sad way to think of and structure your legal education.

Look how much all of the above depends on some preexisting data set (the course evaluations, the grade distributions) or on social network ties (the upperclassmen to ask for advice, the people who have previously taken the same course to get old outlines from). Look at all the ways in which students try to "game" the system, which arguable rests on pillars of meritocracy and objectivity ("blind" grading, if grading essays can ever be "objective"). If students can figure out what to do to get their GPA higher than others, is law school really a fair system? Aren't those with stronger social network ties rewarded over those who are new to the system, or heaven forbid, socially awkward? Is it right to reward those with better social skills, in the sense that in order to succeed at the legal profession you do need to have them? Then why not weed out the socially awkward ex ante, in an interview process? Why not reduce the number of applicants to those who achieve a certain combined GPA + LSAT index, the way they do for medical school applications (in which if you don't achieve a certain combined index, you are dropped by the computer for consideration at certain schools). Why not combine this presorting with the interview, if we so value the combined package of good test-taker, good student, and socially capable? Well, then law schools couldn't game their rankings with incredibly low acceptance rates/number of applications.

This is cynical, I know. But it is sad to overhear so many conversations from students who do not care about the quality of their education, only their grade. It depresses me. I know that my idealism and romanticism about the study of law (and academia in general) probably explains my own rather "depressed" GPA from law school. Well, whatever, I'm here now, at a better school, and with a supposedly higher grade curve (ironic, isn't it, that the higher ranked the school you go to, supposedly the easier it is to get good or decent grades there). So while I am working hard at my classes and am trying very hard to get good marks (dude, I am an LLM student, and I attend class more regularly and am more prepared than the JD students), I know that the grade isn't everything.

Oftentimes, as I sit in class, I'll take a break from obsessively copying down everything my Federal Courts Prof says to think a bit. "Hmm, with the rise of the administrative state, what has happened to the separation of powers now that administrative agencies perform adjudicatory functions (often with final review), and now that courts tend to act like administrators when they issue court orders and injunctions? Is federalism dead?" I give myself the luxury of abstract ruminations, in the middle of class (and I write them down too, because such thoughts dovetail nicely with the thoughts I have during Courts as Engines for Social Change). I wonder if what I'm doing is going to be "good" for my grade in the end, but I know it's good for my thinking, and learning. I'm trying to think deeply about my courses, and learn from them as much as possible, and then to integrate my thoughts from other courses (and research) so that for the first time in my life, my legal education will be holistic, good, and yes, reflective. I hope I do well, but I am not obsessing about it the way I know my J.D. classmates are. I think I am learning more, in the end.

I know the methods by which students try to game the system. I only wish I had enough disregard for the study of law as an intellectual, academic exercise to use them. Or maybe I don't wish. Well, I wish I had received better marks for the effort I put into my courses back in law school, as a J.D. And I hope I do well as an L.L.M. But mostly, I just hope that I can answer some of these questions I think to myself as I learn the law. And so maybe I'll never learn how to game the system, because I am not much of a player.

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Saturday, September 23, 2006

e.e. cummings

Much of interest (well, if you're a legal academic) to blog, but as I am feeling a mite poorly, I shall wait till the morrow.

Until then, two poems by e.e. cummings:

it may not always be so; and i say
that if your lips, which i have loved, should touch
another's, and your dear strong fingers clutch
his heart, as mine in time not far away;
if on another's face your sweet hair lay
in such a silence as i know, or such
great writhing words as, uttering overmuch,
stand helplessly before the spirit at bay;

if this should be, i say if this should be--
you of my heart, send me a little word;
that i may go unto him, and take his hands,
saying, Accept all happiness from me.
Then shall i turn my face, and hear one bird
sing terribly afar in the lost lands.


The second:

Thy fingers make early flowers of
All things.
thy hair mostly the hours love:
a smoothness which
sings, saying
(though love be a day)
do not fear, we will go amaying.

thy whitest feet crisply are straying
Always
thy moist eyes are at kisses playing,
whose strangeness much
says; singing
(though love be a day)
for which girl art thou flowers bringing?

To be thy lips is a sweet thing
and small.
Death, Thee i call rich beyond wishing
if this though catch,
else missing,
(though love be a day
and life be nothing, it shall not stop kissing).

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Thursday, September 21, 2006

Law and Letters Bookworm


Taking a cue from Larry Solum...

Until Gil Grantmore gets The Legal Reader, a blog by lawyers who love literature (belles lettres), up and running, I've decided to start my own legal version here.

There are several legal texts that have profoundly affected my intellectual development--for better or worse. Some I've come full circle back to (The Concept of Law by H.L.A. Hart) while others I became intensely infatuated with and then eventually rejected (sadly, Words That Wound). But I've written about that already.

There is a list of books every law student should read, but they never do nor will, so I'll leave that to the law professors to grumble over. I'm not yet a law professor, and so I will not pedantically create a syllabus for aspiring lawyers who aren't necessarily interested in the law as an academic subject anyway (viewing the J.D. degree as more utilitarian) and so won't take the time to read jurisprudence and legal history. I have looked at such lists, including one created by Liberal College Law, and while some choices are very, very good (Grant Gilmore!) some are bewildering and will not be of much use nor interest. So since top ten lists, like any attempt to order and operationalize, may be assailed, I won't create a list. (Although seriously, if the list doesn't include H.L.A. Hart; Owen Fiss, Robert Chayes, et. al., run, run, run away). Instead, what I shall offer is a periodic plug for a book that I find myself greatly liking.

So I am greatly liking Judicial Policy Making and the Modern State by Malcolm Feeley and Edward L. Rubin.

It is one of those "...and the kitchen sink" books, but in a good way, meaning there is something for everyone. Feeley, a political scientist and law professor, and Rubin, a law professor and now dean (of Vanderbilt) write what is one of the best books I've read in a long time. It's hard to express how much I love this book, but if you read the abstract of it, you'll see why:

Between 1965 and 1990, federal jduges in almost all of the states handed down sweeping rulings that affected virtually every prison and jail in the United States. Without a doubt judges were the most important prison reformers during this perid. This book provides an account of this process, and uses it explore the more general issue of the role of coursts in the modern bureaucratic state. In doing so, it provides detailed accounts of how the courts formulated and sought to implement their orders, and how this action affected the traditional conception of federalism, separation of powers, and the rule of law.

The authors argue that the judges have always made policy, and will continue to do so, especially in the modern administrative state. The modern administrative state embodies notions of government as an active policy maker, rather htan a passive adjudicator of conflicts. This concept, the book argues, applies to courts as well. The modern administrative state requires an active, policy-making judiciary and, perhaps more importantly, a different and more activist concept of law.

Yes, it's everything a law nerd could want. Legal history, legal theory, case studies (and I mean in the political science sense) as well as case studies (and I mean in the legal sense), doctrinal analysis, a law and society approach to the abandonment of such doctrine, normative and empirical critiques....did I mention they dedicate an entire chapter to how the prison reform cases show how the judiciary abandoned the principle of federalism in order to commandeer the running of state prisons, an area formerly left entirely to the sovereignty of the states?

It's a great book, that not only interrogates the question of what judges do when they make policy choices and then craft policies and implement them, but why judges do that. Well, there's never a clear answer to that latter question--but they do ask how judges get from one point (the illusion of legal neutrality and passive third party adjudication of disputes) to another (the entire overhaul of prisons in the South and active enforcement and regulation). So this book brings in all the stuff I love to read and think about as applied to a concrete case--Fuller, Fiss, Chayes, Shapiro, Segal and Spaeth. Legal theory and political science behavioralist theory is a lot of fun to read, people. Especially as applied to a real-world example. I would not naturally pick up a book about prison reform, but I am glad I am reading this one, if only because it is so interesting to interrogate the judicialization of the modern administrative state.

If we are so worried about "activist judges," what are we worrying about? Judges who enact their own policy preferences? Everyone is a legal realist now (or at least, the law professors at the schools I've gone to)--evyerone knows that is what judges do, particularly at the higher levels of adjudication in which the judges are less bound by precedent (being free to make their own) and when they are not constrained and autolimited by the prospect of being overruled by a higher court. If we are worried about activist judges because they usurp the policy making powers of the legislature, and the enforcing powers of the executive (think of how courts enforce equitable remedies like injunctions), and this raises the concern about the separation of powers--well, who are we kidding? In the modern administrative state, administrative agencies perform the functions of all three branches of government: policy making, review, enforcement. In the modern administrative state, courts peform all three functions as well, because in the very act of "interpreting" a law they make new law, in the interpretation they express a policy preference and thus create policy, and enforcing the remedies requires extensive judicial oversight over a long period of time. This should destroy any illusions of "restrained, passive adjudicators" as well as the illusion of separation of powers and federalism.

So yes, this book is fascinating and rich. Something for everyone, but a lot for me in particular.

This book hasn't "changed my life," per se, because I'm a little less willing to make quick and violent revolutions at this stage in my life and career. While you are always free to change your mind, at some point you have to realize that you should "think about things" for a bit and mull them over for some long period of time before changing an entire philosophy. Thus, while I am reading Walter Benn Michael's The Trouble With Diversity with great interest, I doubt that it would make me change my mind about supporting affirmative action at this late stage. It will complicate my opinions about affirmative action, and inform them, but it probably won't change them.

So this book isn't life changing in the sense that I all of a sudden think all judges make policy choices and are policymakers. Well, I had always believed that, so that's why it's not terribly life changing. But it is life-affirming. I have high regard and deep respect for positive legal theory, and I do believe (more now, than when I was in the grips of Critical Race Theory) that judges are constrained by precedent, the rule of law, and objectively ascertainable doctrine. However, I believe that they vote and act upon their policy choices within those constraints, brushing up against the very limit as they do. Sometimes, they cross the line. Here is an example of when judges cross the line from making policy choices within formal constraints to just becoming outright policymakers and administrators.

It is a loooong book, and goes over much literature that has tried to explain court behavior, and goes in depth studying the particullar cases of Arkansas and Texas--but it is a good read, and well worth the sleepless nights. Much as I love studying the law, such that I can't imagine not studying it, I have a general policy of not reading the law right before bed. Well, I used to. I try to read poetry, fiction, The New Yorker--something other than law, so that if I die in my sleep, the last thing I read won't be "the law." I think that this rule was more important when I was getting my J.D. and taking required subjects I didn't care much for. Now that I'm a graduate law student, taking only the classes I want to take, you know, I'm not minding reading the law right before bed as much. I could die, slumped over my Fed Courts book, and I would be okay with that. I have gone to bed a few nights in a row with Judicial Policy Making and the Modern State, and fortunately have not dreamed of prisons and their bad conditions. Maybe because I don't watch Prison Break. But I am saying this to you, as one resistant to reading "the law" before bed, that I would have been fine with it if I had died in my sleep after reading this book.

Larry has this thing of saying "Download it While It's Hot!" when he plugs a SSRN piece. While I have great hopes for this book, my exhortation will be (borne of experience, sadly):

Read It While It's In Print!

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Update on The Perils of Packaging

Larry Solum has great advice here.

He also shares Sam Bagenstos' great advice here, and offers more great advice in response here.

Read and take heed.

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Wednesday, September 20, 2006

The Perils of Packaging




I recently met with the general advisor of the LLM program, Not So Evil Law Prof, (not my thesis advisor, Preeminent Federalism Scholar) last week. I say "not so evil" not to criticize the director, but rather to express, once again, my chagrin over having preconceived notions of someone's personality or character based purely on their politics.

Let us just say that I disagree violently with Not So Evil Law Prof's politics and the policy recommendations he has drafted for The Government (and lest you think you can guess who I disagree with, I disagree with a lot of policies--the Bankruptcy Reform Act; work-welfare reform; proscriptions against race-based affirmative action; limiting the over-the-counter sale of Plan B to women over the age of 18; parental notice restrictions on abortions for minors without judicial override options, etc., etc.). Not So Evil Law Prof is not only not evil, but he is really, really nice. One of the kindest, most solicitous professors I've ever met. He directs the graduate legal studies program here at Liberal College Law, and he's quite good. He advises all the non research track students, and sort of keeps an eye on us research-track LLMs as well (matching us with paper advisors, approving our courses, etc.). As one of the few American LLMs (seriously, where are the rest? I've met two, and there are supposedly four more somewhere), he reassured me, just a little bit, about my chances of getting into the JSD program. sensible advice about entering the law teaching market. Some of it even I already knew: don't enter the market until you have the "best" package to present--some good articles that are hopefully well placed, plenty of good recommendations and people who "will go to bat" for you, a network of connections....

Which brings me to the topic for today, the "perils of packaging." I had previously written on being a young scholar, and the need to take risks and risk failure. I still believe in that. But there is so much that terrifies me about the entire process of trying to become an academic that I really am susceptible to following the "gentle suggestions" of others. In other words, I am already trying to package myself, and while that is a very useful thing, I wonder if it is a very good thing. I wonder if it is making me less adventuresome. I wonder if it is going to limit my scholarly reach.

I'm already thinking that this year I'll write a doctrinal piece on federalism (although, surprisingly, with a slightly law and society bent in one chapter), and my extra theory/policy piece on employment discrimination. I'm thinking that next year, it would be nice to create a project on federalism issues in employment law--which would create a nicely dove-tailing "package" to present.

Much as I keep stumbling towards some unknown future (this employment law focus is quite new), I keep wanting to be directed and prodded in the right direction. But I have no idea what direction that is. I had a long conference call with the faculty chair at Bourgie Metrosexual Law School recently. It was one of those phone calls that makes you want to walk very, very carefully and look both ways before crossing the street.

This is not to say that Faculty Chair Prof wasn't nice, kind, solicitous, etc.---he was very kind. But the advice he gave, since he knew that our school though very good and highly-enough ranked, is not as much of a faculty mill as the top ten. Liberal College Law produces far more academics, but it will never produce as many as Elite Secret Society Law School.

So there is much to think about, now that I'm at the very beginning of the journey. Do I continue to stumble my way towards my goal, turning on a dime at the suggestions of others towards new paths of scholarship? Or do I take what I'm doing now, and make sure that it becomes a very tight, coherent package in 5 years? Do I dare take on a project on welfare reform law? Do I dare apply for a visiting scholarship to France or England to work on comparative federalism theory in 3 years?

The perils of packaging is that it is that packaging limits you to a certain box, of a certain size, and of a certain shape. If I continue to work on my beloved federalism and employment discrimination law, I could easily find ways to integrate the two and start work on ERISA preemption, state sovereignty issues with the various anti-discrimination laws, etc. etc. But if I wanted to move off on a tangent towards a project on welfare reform and the regulation of states through the spending and taxing power, can I or should I? Is that employment law enough? does it sound like a weird migration? What if I shift from doing American federalism to do a comparative federalism project? Do I dare?

I think I do dare. I just have to keep reminding myself of that. I need to remember that while I want a nice package to present in five years, that it is okay to occasionally think "outside the box."

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Tuesday, September 19, 2006

I'm Back in the Saddle, Again


It's been a little over 10 days since my last post, but I'm back. I apologize for the long absence--there are several valid excuses (work, work, work) and perhaps invalid ones (having fun, existential crises over feeling 18 at the age of 26), but I'm back.

After this lovely ode (and implied gentle exhortation) by "Gil Grantmore," how could I not come back?

I'm back because I'm finally done (well, I was done, but then I changed the entire scope of the project) with Phase 1 of drafting my research proposal. Well, by "done" I mean that I read a lot of the stuff Preeminent Federalism Scholar told me to read, wrote up summaries of the cases and secondary law review literature, and came up with proposed refined topics for my thesis. Now, onto Phase 2, or going back and re-reading all of this and drafting an actual thesis on the particular question/issue he suggested, "but you don't have to do this if you don't want to." He told me that he's had students who just turn in a paper at the end of the year and who correspond by email--but that I could come in as little or as often as I needed. Well, I think I need to come in at least once a month! Not only to keep me "honest," and diligent, but also to make me "good." I get a lot from our meetings.

I wonder at my colleagues, or what I remember of my JD colleagues when I was in law school, who felt trepidation over meeting with law professors. Not that some law professors aren't intimidating, and indeed, I was quite nervous my first two meetings with Preeminent Federalism Scholar (he was, after all, once dean, is quite famous, and judges call during our meetings to say "hi"). But the idea in the abstract terrifies some students. Some students never go into office hours. I try not to abuse the institution of office hours, but I do go often enough--and not just during finals. I go to ask questions; I go to introduce myself and develop that very valuable thing, a "network" of professors willing to help promote me and write letters of rec for me; and I go to develop mentoring relationships, an even more valuable thing.

So I will be meeting with Preeminent Federalism Scholar at least once a month I think, just to make sure my thesis is on the right track, progressing well, and to ensure a good (not too frequent, not too infrequent) working relationship with my advisor. So far, this is working out well--he is not only very nice, but progressively friendlier, relating to me anecdotes about placing bets with his federal court judge buddies on the outcomes of Supreme Court cases. I think that he likes that I come prepared, with summaries and that I take notes. Well, at least he's asking me "am I going too fast for you" less (actually, last meeting he didn't even ask, as I was the one talking about federalism issues in child pornography regulation and could remember precisely what FMLA case he was talking about). I also come relatively professionally dressed, in order to show respect for him, and respect for myself.

Not to beat the sartorial blawg topic to death, but I'd like to offer a student's take on this. If there is debate over how professors should dress, why not a similar debate over how students should dress? If professors show respect for their office and title by dressing at least a little more formally than their students, then how should students dress? As the student wardrobe has shifted ever farther away from a jacket and tie for men and nice dress for the women, the professorial wardrobe has commensurately declined. That is to say, if your students wear jeans, t-shirts, and flip-flops (I think the "uniform" on the West Coast, which is where I went to law school), then it won't take much to distinguish yourself from your students (who can't be distinguished from undergraduates, either).

It's a difficult issue, really. On the one hand, I like that academia has become more democratic, less stodgy, and has a more racially and socioeconomically diverse student body--so as it becomes more open, perhaps it should communicate its openness by relaxing some of its old, stuffy, exclusionary standards. On the other hand, there is a part of me that thinks of academia as being hallowed and exalted ( a sacred cow of mine) and so I would like the people, especially the professoriate, to show due respect to the noble goal of learning and truth-seeking.

So the long and short of it is that I hold the professors to a higher standard--you are not merely students, and you should dress accordingly to communicate that class is an occasion for learning, and thus an occasion to honor. I had a professor I once TA'd for that always put on a tie to indicate that a lecture is something special to his students. I loved that. There is no turning the tide back on student dress--the students will look like they rolled out of bed, which probably most of them did (I think 3 years at Bourgie Metrosexual Law School and hanging out with Europeans has made me a bit too fashion-conscious). But they are students, and though they intend to be professionals, for now they (and sometimes, I) will take advantage of that largely unstructured, irresponsible lifestyle and dress according to our station in life (pretty low, until you get your J.D. and license). However, our station in life is not that of a professor's, so yes, I think it would be nice if professors didn't look like grad students.

However, I do have a J.D. I am not just a professional, but an aspiring academic. This isn't to say I don't wear jeans to school--I'm back to some of my student habits--but when I meet with a professor, whether formally or informally, I dress for the occasion that is. When I make my "hello, my name is Belle Lettre, and I am doing research in your area of law" rounds, I wear at least trousers and a blouse, and often a jacket. When I see my advisors for our formerly biweekly, now monthly meetings, I definitely wear a jacket. I know I don't have to. I know this, because the person waiting for the appointment after me looks like a delivery boy. But even if I don't have to, I want to. Not merely to show respect for my advisor, who is, after all, Preeminent Federalism Scholar (and former dean). I do it to show respect for myself, that I am not merely some student passing time at school waiting for my degree so that I can get out into the workplace. I am an aspiring academic, who wants to spend the rest of her life and probably die, slumped over my desk at a university as a professor, and so I am the perpetual student, but not merely a student in certain ways. I do it to mark the meeting of the student and her advisor as an occasion in and of itself. I do it because by showing respect for others, I show respect for myself.

This is a strange attitude to have, I know, for one so young and for one who usually argues that the doors of academia should be thrown far and wide. But it's one "old school" thing I do that I firmly believe the rightness of.

Let us all show respect for each other, for ourselves, and for the institution of learning, if not by dressing the part, then at least by regarding it as the occasion it is.

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Thursday, September 07, 2006

Google Recommends Objectivism For Children (or Federalism Scholars)

CLICK ON IMAGE:



I like Google, whose corporate policy is "Don't Be Evil" (which might not extend to China, but....). I like everything about Google. I liked Google Scholar for looking up articles during the year I didn't have Lexis Nexis, Westlaw, or a campus-based subscription to JSTOR or HeinOnline. I like Picasa, the open source photo-storage and editing program that Google gives out for free. I like Blogger, which is free and not too hard to mess with (template wise) if you're so inclined for cheap soap-box shouting. I like my Gmail accounts. But more on why I now feel a bit less in love with that later.

Google runs a lot of ads on the top and side of its search pages that correspond to your search terms. That's the small price you pay for a pretty darned good search engine. Search topics are personal to many (and the weird ones that land you here, by the way), which is why AOL was in such hot water when it "mistakenly" leaked its members' web search data. But with Gmail, the topbar and sidebar suggestions for products and services are mined, frequently enough, from the terms in your personal and private communications. You are not broadcasting a search across the internet, casting your net widely. Most people think of email the way they think about letters--for the eyes of the addressee only. I feel that way, yet I use Gmail. Why? In return for 2 GB of free space, chat capabilities (big with my lawyer friends wasting firm time) and a pretty nifty web-based email program (I like how it "remembers" addresses without me having to go through the process of physically adding contacts to my address book, and the search function for all emails/conversations with a particular person or subject), I give up a little bit of privacy. It's the same compromise I do when I use Amazon for its steep 30-40% discounts. You give up a little (or a lot, depending on the privacy law expert) for something you consider to be a worthy exchange. Generally, I have felt that way. But today, I'm a little bothered.

So I was emailing a visiting scholar friend here about his conflict of laws book, thinking I might buy myself a copy (unfortuately am not taking it, as it doesn't focus on federal-state conflicts and I have too many units already). But even if I don't take certain classes, if it is necessary or useful, I'll look through the syllabus and maybe even buy the casebook (a good idea if your school doesn't offer certain courses, like say statutory interpretation). Though I didn't have to, I bought myself a copy of my advisor's Big Book O' Constitutional Fun just for a couple of chapters that might be useful to my thesis. So this is generally a fun and good thing to do, and I am glad I can peruse Typical French Guy's (the very cool visiting scholar's) book to see if I want to buy it.


I just looked at the page of the email. What, do you ask, does Google suggest I buy if I'm interested in (I'm pulling out words from our brief emails) "conflict of laws," "state and federal issues" and "preemption"?

A book, Google (or whoever) describes as:

"Dr. Seuss meets Ayn Rand. -www.oakleafpublishing.biz - Buy this beautiful illustrated book Warning against big government."

I went to the site, and this is the description of the book:

An Island Called Liberty

This book is a cross between Dr. Seuss and Ayn’s Rand’s Atlas Shrugged. Ayn Rand would be proud of the message and Dr. Seuss would be proud of the beautiful illustrations and rhyming verse in this lively tale of free-markets versus excessive government regulation. Hardcover, 27 beautifully illustrated pages! Follow the trials of bright Bridget Blodgett as she struggles to produce her widgets and wodgets in the face of increasing taxation! Find out what happens when the islanders and their businesses can no longer support the bureaucracy that has somehow grown from the best of intentions! This beautifully illustrated hard-bound book extols the virtues of free markets, and shows what can go wrong when government bureaucracy gets out of control! For free market advocates of all ages!

Content of text is suitable for children 10 and up, although younger children will enjoy the rhyming verse and colorful pictures on each page. Older children and adults will love the intelligent message of freedom and the warning against excessive regulation.

Okay, so I admit that I'm becoming more open-minded about federalism arguments for state rights and sovereign immunity. I'm even beginning to think that there are areas in which the Federal government should not involve itself. Yes, states can be great "laboratories of experiment" for new laws in all sorts of areas, from environmental law, to hate crimes, to free speech protection, etc. True, there are legitimate concerns about the autonomy of individuals to be free from undue interfernece by either the state or federal government.

But I look at this weird "Objectivism for Kiddies" book suggestion, and I want to puke. Much as my own ideas about federalism are changing (particularly since I've been reading critically arguments on both sides, and under the guidance of Preeminent Federalism Scholar), I still maintain that "federalism" can be a neutral principle. "Federalism" is not linguistically or historically an argument for states' rights to the exclusion of the federal government regulatory power, or for federal power to the exclusion of the principle that each state has its own government, constitution, and special regulatory powers. We have a dual federalism system, and whatever hypocrises and inconsistencies there are in the principle that there are certain powers (police power for the states, plenary immigration powers for the federal government) limited to each--we have this weird dual system. Federalism is the study of the "proper" roles of and relationships between the federal and state governments, and you may say "federalism" without invoking an argument for one or another.

So if federalism can be a "neutral" principle, why do these terms invite a recommendation for some bizarre objectivist, capitalist, anti-regulatory (one may study federalism to argue for increased regulatory power by either the state or federal government), Ayn Rand meets Seuss book?!

Not only is the study of "federalism" wayyyy too politicized, but it is also weirdly absorbed into this objectivist, individualist, capitalist wacko-Libertarian scheme?!

I say this, not lightly:

What the ____?!

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Tuesday, September 05, 2006

Scott Eric Kaufman on Literature as Equipment for Prosecution

I'm no criminal law expert (far, far from it) but I found this post by Scott Eric Kaufman interesting. I wonder why no law prof is blogging about it? Dan Filler?

According to The Scotsman:

Police said they were investigating whether [Wolfgang] Priklopil knew about John Fowles' novel The Collector, which tells the story of a man who kidnapped a girl and hid her in a secret basement cell in the hope one day she might fall in love and marry him.

"We have received several tips about the book," said Gerhard Lang, a senior police officer. He said no copy of the novel had been found at the house.

The "tips" notwithstanding, one wonders what the police want with The Collector. Do they think it the pedophile-kidnapper's equivalent of The Turner Diaries? (The "novel" which inspired Timothy McVeigh's "patriotism.") Or do they—and I mean this seriously—do they believe it offers insight into Priklopil's psyche?

If that is what they think The Collector to be, literature suddenly means as much as its most strident supporters claim. It is the work of an incisive mind peering into the depths of the human soul (however inhuman its content may be).

Mostly I think the Austrian police are looking for a blueprint, a formula, something which will dispel the idea that an actual human committed this crime of his own accord. Systems console weak and weary minds, providing elaborate explanations for the simple but unfortunate fact of human depravity.

Interesting. I don't know whether any insight to be gained from the novel could go to establishing mens rea or modus operandi. There are plenty of "copycat" killers and criminals who base their MO's on those of other celebrated killers or on works of fiction. I mean, are the police thinking it will be sort of a "how to" manual like those they use to prosecute bomb manufacturers or date rape druggists? Or is it just some kind of circumstantial evidence of the kidnapper's state of mind, intent, etc.? Is it to be used as evidence of "character," the way that violent misogynistic pornography might go to establishing a rapist/killer's violent antipathy towards women? I don't know how the novel might be used, if it is even usable. Of course, I raise questions of how the novel might be used in a court of law. Scott is raising the point that the police are interested as part of their investigation. So goodness knows how it plays out in the investigatory stage, or to what end the police would use it to build their case or use it as evidence of reasonable cause for further warrants.

I honestly don't know, but I invite others to comment on this.

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Monday, September 04, 2006

On Being A Female Blogger, And Yes, A Real One At That

To be cross-posted at Feminist Law Profs.

Ann Bartow has a great post at Feminist Law Profs about the unfunniness that is David Lat's new blog:

The Kind of Satire That Often Isn’t Funny: David Lat’s “Hottest ERISA Lawyer in America” Contest:

Possibly Lat doesn’t understand that being celebrated for her looks is not known for being a ticket to career success in the legal world for a female attorney.The idea that people are now going to be nominated without their knowledge, and that Lat will not honor their requests for withdrawl if they do find out, frankly strikes me as both mean and sickening. I was present when a hard driving female attorney won a satirical “Miss Congeniality” designation during a “jokey” awards luncheon, and I watched her muster a tight little smile as she accepted a sash and tiara to a sea of derisive laughter, and I saw her crying in the bathroom later, too. I have little doubt that certain kinds of lawyers will take a golden opportunity like this to try to heap ridicule upon colleagues or competitors they dislike, or want to see put in their place. But who cares, as long as Lat is amusing himself and his buds, right?

I never "got" the appeal of Underneath Their Robes, and I generally avoid snarky blogs (The Defamer, Go Fug Yourself, Wonkette, Gawker...). But because I don't read them, I don't generally comment on them. But sometimes, I take exception to this in order to discuss some broader point about what it is like being a feminist in this rather unfriendly-to-femninist age.

The last time I discussed David Lat, it was as an addendum to my Pictures and Patriarchy post:

If you bring up A3G as an example of a "person" who would gratuitously comment on a male law prof's appearance, well, you should remember that A3G turned out to be a _man_, David Lat. This is an interesting bit of gender stereotype bending, as if Mr. Lat felt compelled to assume the persona of a "judicial diva" in order to make more risque and trivial judgments (bench slaps, judicial hotness meter, litigatrix). That is, to be more sexist and sexualizing, he probably thought it would be safer writing in the "female voice." But I hardly think that qualifies as a "turn the tables" use of the "female gaze"--it's just the male gaze in "drag." And in both cases, rather inappropriate and insulting.

I still don't get the appeal. So this guy is out of stiletto drag now, and we are still supposed to care about his juvenile characterizations of legal figures? Even after finding out that Anonymous Lawyer was just some inventive 2L (now graduated) at Harvard Law, the posts were interesting to read as a type of fiction. It was a caricature of the Law Firm Hiring Partner, almost Dickensian in proportion--you half expected him to have a name like "Hyman A. Hirebrand." I don't read Anonymous Lawyer as much, but I do see the appeal. But honest to goodness, I just don't get the point of this faux sorority girl tone of David Lat's. I read his New Yorker coming out with interest--he has quite impressive credentials (Yale Law, high placed clerkships) and supposedly conservative political beliefs. Then why not just be a blawgger? I guess it doesn't get you as much notice as when you go "Ohmygaw!" and pretend to be "smart" but "not too threatening" woman. That is, a woman can be a lawyer and have her share of impressive credentials, but she must in some way be trivialized. In Article III Groupie's (A3G) case, it was that "During her free time, she consoles herself through the overconsumption of luxury goods. Her goal in life is to become a federal judicial diva." And apparently, becoming a federal judicial diva is best accomplished by running a "legal" blog that is the combination of "People, US Weekly, Page Six, The National Enquirer, and Tigerbeat." I am pretty intent on becoming a federalism "diva" (can we substitute "maven" or gender-neutral "rock star"?) and I doubt it will be achieved though this blog. And I definitely don't think it will be accomplished by running a test for "Sexiest Jurisprude." Seriously, people think this is funny or even interesting? Am I just another humorless feminist?

David Lat is not the only male blogger in stiletto drag (I have love for stilettos, I do not say this to degrade them, but rather to indicate that there is a certain caricature these men endeavor to convey). Another one, before "she" was unmasked was Libertarian Girl, who is now Libertarian Man of Mystery:

One thing I learned from this blog is how easy attractive woman have it. When I had a blog as my real self, no one linked to me, no one left any comments, it was as if the blog existed in a vacuum. But things were different for Libertarian Girl. Every day I’d check Technorati and discover new unsolicited links. It was like I had warped into an alternate universe where all the rules had changed. At the rate things were happening, this would have been an A-list blog in a few more months. It’s funny how there have been some posts in the blogosphere saying that the political blogosphere was a boys club that discriminated against women, as evidenced by how few politics bloggers were women. Boy were they completely off the mark. It’s ten times easier for a woman’s blog to become popular. This effect no doubt carries over into the real world. Whenever I see an attractive woman with a successful career, I’ll remember the experience of this blog and assume that she didn’t really get there on merit, just her looks.

You can read Libertarian Man of Mystery's blog for more sickeningly offensive posts about women. But I won't link to him/her further.

All of this blogging-in-drag is bewildering and appalling. I just don't understand the prurient interest some have in watching an otherwise impressively credentialed or politically opinionated "woman" degrade "herself" by trivializing her politics or profession. Is this the appeal of watching Ann Coulter in her mini-shorts?

Speaking as a female blogger, who writes a "blawggish" blog at that, I am personally offended. I think these poseurs, cheeky and satiric as they intend to be, bring down the image of serious female bloggers everywhere. It's not that I argue that my blog is entirely serious--I do run personal posts about poetry, the occasional blog meme, etc. But this is not exactly trivial gossip to share your favorite books or anxieties about relocating to a new school or adjusting to a new advisor. If some law profs can write about what they play the most on their IPod, or where to find challah in Alabama, or the births of their children, or their recent weddings with their "Osita" (not that I mind these posts)--I feel entitled to share with you on my personal blog by an aspiring legal academic, my non-legal interests. But I don't devolve into gossip and the truly trivial. And I write about my personal life, but always in relation to legal academia--the struggles between work/life balance when you have childcare issues, the difficulty of being a young academic and trying to even think about how you can figure in marriage and children within your tenure period, the problem that is "packaging" your CV as you consider entering the market. But I don't write about my romantic life, my daily activities (this is NOT Livejournal), or which law profs I think are "hot." I just don't see the point--that is, the usefulness, the interest, the humor in that.

If I can relate my personal life to legal academia, I write about it. If I want to share my favorite non-legal texts with my readers, I do so with abandon. I am, after all, "Belle Lettre," and if you knew a bit of literary history (or just looked at the sidebar, "Defining Belles Lettres") you'd know that "belles lettres" means "literary works valued for their aesthetic qualities rather than their information or instruction." So this blog was always intended to be a mix of the legal and the literary. And as this is my blog, I always intended to write about my own personal journey through academia--from recent law grad to graduate law student to (hopefully) clerk to AALS meat market to (hopefully) tenure track. It is a long journey, and a very different one from most of those Harvard and Yale trained WASPy men out there, and so I wanted to share it with you.

But blogs like those by David Lat and Libertarian Man of Mystery make me a very self-conscious and cautious blogger. I feel trepidation about writing on non-serious or even non-legal things, even though it is perfectly within my prerogative to do so. I'm not saying that I would like to engage in snark, vitriol, gossip, or triviality. Read Jack Shafer's essay "The Heaving Pukes Behind Gawker and Wonekette" for reasons why I never want to go down Lat's or LMM's path. But I would like to be able, as many male bloggers seem able, to write about my desire to balance my career with a "personal" (i.e. romantic) life without feeling like I'm veering towards the path of Myspace, Xanga, Livejournal, and other "confessional diary" blogs. I would like to be able to do a few non-serious writings without risking my ability to be taken "seriously." As it is, I will probably not do any personal or "non-serious" posts unless they relate to my life as an aspiring academic. For example, the most I'll say about my romantic life is that "it's tough, but not impossible to have one" in an intensive graduate law program, and the most I'll say about my own future reproductive plans is that "I am struggling to figure out when I will let myself get married and have children when I have to think about geographic flexibility and tenure." To me, this is not having an online diary. It's having an honest discussion about the difficulty of being a female aspiring academic. There is a lot to think about that I wonder whether my male colleagues think about. Like how to fit in having a baby after you've gained tenure, but before menopause.

David Lat and Libertarian Man of Mystery do no favors to women (and especially women bloggers) when they pose as women or caricature "female triviality" to suit their own ends. Even as they continue this "cheeky" style of writing with their genders and identities open, it never fails to be a nudge nudge wink wink at how salacious and saucy writing can be if done in the "female voice." I happen to think my own "female voice" is quite intelligent and serious, thanks. And there are plenty of women bloggers (and blawggers) like me, who can write about our lives and our work, without being sexed up fembots or saucy wenches. There will be no nudging and winking here, not for your amusement, and definitely not to ours.

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Sunday, September 03, 2006

Greek Poetry, Just Because I Can

Okay, so I might just win "worst blogger ever" for this past week's lack of posts. I blame it on my Preeminent Federalism Scholar advisor, who assigns me hundreds of pages to read and "think about," my Prominant Interdisciplinary Scholar seminar professor (who is also advising me on my Colloquium paper), who assigned me to present Segal's "The Supreme Court and the Attitudinal Model Revisited" piece on Tuesday's seminar "because it's right up your alley," and this group of Europeans (The Itinerant Soul, Typical French Guy, and Greek Non-Sorority Sister) who have corrupted this half slacker/half workaholic American into going along with their expresso drinking, cafe-hang outing ways. All this, and I had prepare for next week's classes in advance so that I could get out of town by Thursday at 5 pm. I think this last week is aberrant (not often do I go out of town for a weekend) and so I will be back to regular posting.

So between the work and the joie de vivring, there was less time for the blog. And I speak of this blog only, not to mention guest-blogging for Feminist Law Profs and a very exciting new blog started by Dynamic Law Prof Jim Chen. For that, I duly apologize to my 100 or so faithful readers, a small but beloved elite class of lawyers, law profs, and literate laity that I can almost personally thank and apologize to.

I am taking a long weekend in "The" OC, and after two months in Liberal College Town (next to Beautiful Big City, in Awesome Part of The Country), I can definitively say that this is no longer my home. It's where my family lives, and it will always be "home" in that sense, but I no longer feel like I belong here. I am not saying I belong in Liberal College Town, which is actually way too liberal for me as I move ever closer to the center (weird, I know) except in the areas of individual rights, feminism, and anti-subordination. But I belong in Awesome Part of the Country, for now at least. I really love Beautiful Big City. And I am very fond of my new friends, who share my love of art and literature in ways even my English literature major friends back in college never did. It is wonderful to find those who care as passionately about classical music, jazz, art, and literature as I do. It's quite extraordinary to find a type of love that transcends borders, language, and cultural difference that is not romantic love or filial love. But I think it is exactly that type of love that can lead to the latter (well, at least romantic love, unless they find new ways of establishing filial ties).

Typically, when I meet people, particularly a mixed-gender group of people or male strangers, my immediate response is to go into what I call "academic" mode. I interact differently with women, in the sense that I will readily talk about family, relationships, children, etc., and will quickly "bond" with them. So generally, I prefer the company of women. I present only my intellectual self--I talk about my educational background, intellectual interests, research projects, etc. I have very closed body language. I think it is to protect the more vulnerable, or some (backward) people might say, "feminine" side of myself. I close off anything remotely personal, emotional, or sexual, crossing my arms over my chest, turning an analytic eye towards my interlocutor. The effect is to say "I am intelligent, don't think you can pull one over on me." I think I do this because I feel most secure and safe about my intellectual self, and am at my most unassailable. You want to talk about the human genome project? I've read a fair enough amount, let's talk. I talk about the "dry" topic at hand, be it law or science or sociology, etc. True, this doesn't get you many dates. But it does safeguard you from being diminished or condescended to, and it does gain you respect--at least for your intelligence.

But if the conversation can move past that, to something that is as personal to me as the topic of family, relationships, or children--that is, to the topic of art and/or literature--I change. Sociologists call this "front stage" presentation, and dance instructors call it "phrasing"-- in any case, my body language relaxes, my face becomes more open (my brow becomes unfurrowed, my lips move from a look of consternation to easy smiles), and I become more human and less of a walking/talking resume. I quite like that. I think everyone looks more beautiful when they talk about art. I think everyone's eyes become more alive when they listen to music. I think I could fall in love while talking about it. I hold the love of art and literature as a higher value than similarlity in political beliefs when it comes to friendship and love. I don't knowhow I look to others when I talk about art, but I think look a lot happier, because I am.

So here is another poem that I've been introduced to, which is "not a very good translation," but I very much like it--and I very much like my new Greek friend, who though she has a different mother tongue, is like a sister to me:

The Monogram

by Odysseas Elytis

I will always mourn–hear me?–for you, alone, in Paradise.

I

Fate, like a switchman, will turn
Elsewhere the lines of the palm
Time will concede for one moment
How else, since man loves and is loved
The heavens will perform our insides
And innocence will strike the worldWith the scythe of death’s blackness.

II

I mourn the sun and
I mourn the time that comes
Without us and
I sing of others who’ve passed
If this is true

The bodies addressed and boats sweetly gliding by
The guitars that flicker under the waters
The “believe me” and the “don’t”
One in the air and one in the music

The two small animals, our hands
That tried to climb one another in secret
The flowerpot cool through the open garden gate
And the parts of sea coming together
Beyond the dry-stone wall, beyond the hedge
The windflower you held in your hand
Whose purple shuddered three times for three days above the waterfall

If this is all true, I sing
The wooden beam and square tapestry
On the wall, the Mermaid with tresses unbraided
The cat that watched us in the dark
A child with incense and the red cross
The hour when night falls on unapproachable rocks
I mourn the garment that I fingered and the world came to me.

III

Like so I speak of you and me
Because I love you and in love I know
How to enter in like the full moon
From everywhere, about your small foot in the boundless sheets
How to pluck the jasmine–and I have the power
To blow the wind and take you in sleep through the moon’s passages and the sea’s secret colonnade–
Hypnotized tree of silvering spiders

The waves have heard of you
How you caress, how you kiss
Around the neck, around the bay
How you whisper the “what” and the “eh”
Always we the light and the shadow
Always you the little star and always I the dark vessel
Always you the harbor and always I the light shining from the right
The wet jetty and the glint on the oars
High on the vine-laden house
The bound roses and cooling water
Always you the stone statue and always I the shadow that grows
You the hanging shutter and I the wind that blows it open
Because I love you and I love you
Always you the coin and I the worship that gives it value

So much the night, so much the humming in the wind
So much the mist in the air, so much the stillness
Around the despotic seaHeavenly arch full of stars
So much your faintest breath
That I no longer have anything else
Within these four walls, this ceiling and floor
But to call for you and for my own voice to hit me
To smell your scent and for people to fear
Because people can’t bear the untried
And foreign and it’s early you hear
It’s early still in the world my love
To speak of you and me.

IV

It’s early still in this world, do you hear me
They haven’t tamed the beast, do you hear me
My wasted blood and sharp, hear me, knife
Like a ram running across the heavens
Breaking the tails of comets, hear meI am, hear me
I love you, hear meI hold you and I take you and I dress you
In the white gown of Ophelia, hear me

Where do you leave me, where do you go and who, hear me
Holds your hand above the flood
The enormous flames and volcanic lava
Will bury us, hear me, and the day will come
A thousand years later when we will be, hear me
Shining fossils, hear me
For the heartlessness of men to burnish, hear me
And throw above them in a thousand pieces
And on the waters one by one, hear me
I measure my bitter pebbles, hear me
And time is a great church, hear me
Where once the forms
Of saints
Shed true tears, hear me
The bells ring loudly, hear meI cross a deep ford
Where the angels wait with candles and funeral psalms
I go nowhere, hear me
Neither or both together, hear me

This flower of the storm and, hear me
Of love
Once and for all, we pick it
And it never comes to flower anywhere else, hear me
On another earth, on another star, hear me
There isn’t soil, there isn’t air
That we touch, the same, hear me

And no gardener was ever so lucky

To produce such a flower from such a winter, hear me
And such northern winds, only we, hear me,
In the middle of the sea
Only from the mere wish for love, hear me
Raised an entire island, hear me
With caves and capes and crags in bloom
Listen, listen
Who speaks in the waters and who cries, hear
Who seeks the other, who calls, hear
I am the one who calls and I am the one who cries, you hear me
I love you and I love you, hear me.

V

I have spoken of you in old times
With wet nurses and veteran rebels
From where your beastly sorrow comes
The brilliance of trembling water on your face
And why it must be that I come near you
I who don’t want love but want the wind
But want the gallop of the uncovered, upright sea

And none had heard of you
Neither dittany nor wild mushroom
Of Cretan highlands, none
Only God grants and guides your hand to me

Here and there, carefully around the whole turn
Of the face’s seashore, the bay, the hair
On the hill rippling off to the left

Your body in the stance of the solitary pine
Eyes of pride and of transparent
Depth, in the house with an old china cabinet
Of yellow lace and cypress wood
Alone I wait for where you’ll first appear
High on the veranda or under the garden’s cobblestones
With the horse of the saint and the egg of Easter

Like from a wrecked wall paintingBig as the little life wanted you,
To hold within a little candle the stentorian volcanic glow
So no one will have seen or heardA
nything about you in the wilderness of dilapidated houses
Neither the buried ancestors at the edge of the garden fence
Nor the old woman with all her herbs

Of you, only I, and maybe the music
That is concealed inside me but shall return more strongly
Of you, the unformed breast of twelve years
Turning toward the future and the red crater
Of you, a bitter odor finds the body
And like a pin punctures memory
And here the soil, here the doves, here our ancient earth.

VI

I have seen much and the earth to my mind seems more beautiful
More beautiful in the golden breath
The sharp stone, more beautiful
The dark blue of the isthmuses and the roofs among the waves
More beautiful, the rays where you pass without stepping
Unbeaten like the goddess of Samothrace atop the sea’s hills

Like so I have seen you and that will suffice
For all and time will be exonerated
In the wake of your passage
My soul like a green dolphin follows

And plays with the white and azure

Triumph, triumph, where I have been conquered
Before love and together
With the hibiscus and passion-flower
Go, go, and let me be lost

Alone, and let the sun be a newborn that you hold.
Alone, and let me be the homeland that mourns
Let it be the word that I sent to hold the laurel leaf for you
Alone, the lone, strong wind and the full
Pebble under the eyelid of dark depths
The fisherman who caught then threw Paradise back into Time.

VII

In Paradise I have marked out an island
Akin to you and a house by the sea

With a large bed and a small door
I have thrown an echo into the depths
To see myself every morning when I rise

Half to see you passing through the waters
Half to weep for you in Paradise.

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