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Saturday, January 22, 2011

Long Division, Look at Me Now

Conventional wisdom has it that law school attracts the sort whose brain is weighted to the right hemisphere, whose thought process runs to the abstract as opposed to the linear and who might have pursued a lucrative career in medicine, had it not been for that organic-chemistry thing. It’s a self-deprecating joke that enjoys its share of play around here, and, like many clich├ęs, might contain a fiber of truth.

I don’t mean to paint with too broad a brush. Yes, I know lawyers who need technological help to calculate the tip at Applebee’s, acumen for instant computation of a 30-percent contingency fee off the top of any given figure notwithstanding. But I also know that certain of my classmates possess equal facility in the realms of art and science. I am not, however, among them, and I make that observation so that I can make one more: we have turned a dangerous corner.

As if to counter the oppressive weather conditions under which we trudge to class these days, our lectures have strayed from the gray dimension we were promised, spinning off the “it depends” axis into territory that demands black-and-white analysis. In Torts, we are no longer concerned with the aisle-sweeping schedules of supermarkets and the sequence of events that led to the presence of the squished grape on the floor. We’ve moved on to the mechanism by which the downed customer is to be compensated. Contracts class is a variation on the same theme, a study of the pecuniary consequences of broken promises. In other words – spoiler alert – it’s about the money. It turns out that restoring an injured party to pre-injured status involves a determination as to who pays how much and by what equation the dollars are divvied up.

As I said, this is challenging turf for some, especially those of us accustomed to scanning statistical evidence for the sole purpose of spotting subjective trends. If this were a courtroom, I would want to elicit the testimony of one Mrs. Cunningham, who once tried to teach me long division and induced a fourth-grade meltdown that for a time was the stuff of lore at Burkhead Elementary. I suffered a flashback last week when my Contracts professor listened to my overly analytical approach to computing expectation damages and looked at me as if I were a rat building its own maze when all she wanted was to hand me a gift-wrapped wedge of cheese. As an aside, I have to hand an honorable mention to her marvelous hypothetical contracts between Aunt Bee and Floyd the Barber, notwithstanding their inherent flaw, namely that Floyd would never breach a contract.

All right, if you have to know, it’s a fairly straightforward formula – subject to permutation and human touch, but straightforward at its core -- and I’m beginning to catch on. I exaggerate only because one who undertakes a courageous endeavor like law school has to maintain a sense of humor. And I’m sticking to my account of the long-division incident, not least because Mrs. Cunningham, who was in her early hundreds when it happened in the 1970s, is unlikely to refute it today.

Speaking of turning dangerous corners, I do have a couple of thoughts with regard to the construction projects that have rendered the law school virtually inaccessible by any means other than snowshoe or helicopter, but I’ll have to save them for another day. Suffice it to say that traipsing over snow-covered lengths of rebar on the way to school, while not the safest of endeavors, did engender a sense of triumph in those who survived to tell the tale and was definitely fun while it lasted. I’ll only point out that we are lawyers in training and we know a case of negligence when we see one. And we armed with calculators.

Tuesday, January 11, 2011

Long, Cold Winter



Winter is not my season. I see snowdrifts and envision not postcards but ominous possibilities of famine and isolation. Ice is not the thrill of the frozen pond on the back forty, but a harbinger of bruised tissue and fractured bone that complicates my already marginal driving skills, which, incidentally, are legendary in some circles. Above that, I chill easily and tend to lose gloves.

Spring semester at Brandeis is under way, but it bears none of the characteristics of spring. Classes resumed for the most part days ago, although some of our professors canceled to attend a conference scheduled sufficiently early for most law schools but without regard to the uniquely Louisvillian mindset that all human activity must be coordinated to accommodate the Kentucky Derby.

And so, as it happened, the first snowfall of the semester coincided with the full onslaught of a loaded schedule. First-year students attending full time are up to 18 credit hours now, thanks to the addition of a fifth doctrinal class. The legal-writing class, the single course to span a full year, is now devoted solely to crafting a brief supporting one side or the other of a fictional lawsuit and advancing oral arguments in a setting designed to replicate an appellate courtroom. I’ve drawn what is, in my view, the honorable side of the issue, but is also the side with arguably the steepest uphill trudge in terms of existing state law. There is much work to be done. 


And yet, while I can’t speak for my classmates, I’ve been slow to embrace this second round. My reflexes are slowed, like some sea creature that drifted to the ocean floor and burrowed into the mud over Christmas break and now must be stirred into action again. At this moment, law school and I have settled into the cordiality of companions whose faces have grown too familiar, whose once-charming habits are, on certain days, not all that charming. That’s the nature of law school, though. It’s a virtual game of table tennis in which you’re constantly scrambling to return your own serve, and the patience can thin. It could be what one of my colleagues called the life of the mind, a strange measure in which one scales great longitudinal heights without covering much latitude at all.

It could also be that we’re resuming this journey in a climate that has grown temporarily oppressive in ways that have nothing to do with the weather. Politicians that would have been late-night punch lines even to conservatives a decade ago have somehow achieved a dangerous mainstream acceptance. We choose our representatives like we’re casting an episode of The Jersey Shore and then are chagrined when the fringe element interprets their examples to be baseline models for acceptable conduct. On a personal level, I have swaths of  pain that run the length of my scapular muscles and don’t know whether it’s the book bag that is slung over my shoulder or the one that rattles at my heels like a toddler’s pull toy.

That being said, we here at 1L blog headquarters – and by that I mean the laptop and the coffee pot and I – try to maintain a policy of placing a positive spin even on the frustrating moments. To that end, I remind myself that I am exposed to challenging material and brilliant professors by virtue of an opportunity not extended to everyone. I love the new core class, Criminal Law, not least because our recent discussion of actus reus – the Latin term for the wrongful act that justifies societal punishment – reminded me to put the Johnny Cash version of “Johnny 99” (along with its reference to taking a man’s life for the thoughts in his head) back into the I-pod rotation.

Yeah, I anticipate an upturn in the collective disposition when the new semester’s engine is fully engaged. And spring is just around the corner.

Tuesday, January 4, 2011

Crime, Punishment and Christmas Break

We’re standing on the 26th floor of the Brown & Williamson Tower in downtown Louisville, two floors above the suite accessible only to the real lawyers and then only with a kind of credit-card key.

Donald Vish, death-penalty abolitionist and professor of Law & Literature at Brandeis, is pointing out the tobacco-leaf motif in the carpeting and the silver sconces on the wall. “They told us these were sterling silver and we said we were glad to hear that,” Vish laughed and ran his hand along the dull finish, “because we wouldn’t have accepted anything less.” It is his way of telling us this is all window-dressing and that we are here for a purpose that transcends the trappings of success.

We are a half-dozen law students with not a day of Criminal Law under our belts, far removed from any circumstance in which another’s liberty – much less his life – would be entrusted to us. We are distracted by the imminent release of first-semester grades, too timid to touch the pretzels and cashews arranged for our benefit and vaguely concerned that the soles of our shoes might leave imprints on the tobacco leaves. But a man who asks for volunteers takes what he gets, and we are what he has got.

Brandeis students are required to complete a minimum 30 hours of public service and we have volunteered to spend a portion of Christmas break crafting an amicus brief urging the state’s highest court to reconsider the death penalty. 

You need not be an abolitionist to be an acolyte in the Vish cause. My own stance undergoes scrutiny from time to time. But, having come closer than comfort allowed to being drafted to witness the last electrocution the state of Kentucky carried out, I have an interest in dissecting the rationale underlying what seems to me a primitive practice. Too much is left to officeholders whose fates rise and fall on the shifting tide of public opinion and Bible-Belt juries empanelled by virtue of a willingness to dispense frontier justice, as long as they are safely removed from the distasteful mechanics of it. I know why people embrace it in theory, but I still say capital punishment in practice is a gruesome lottery nobody really wins.

In any case, we finished the work and, while I’m reasonably certain the experience will prove to have been of greater benefit to us than to our generous taskmaster, I’m richer for having had the experience. Vish has achieved that mark to which all great educators aspire, striking that tenuous balance between destroying the spirit and inflating the ego, leading the student to believe success is not within his grasp but is dangling just beyond.

I spent much of the remainder of my break reading, not in the indulgent way I typically read, but with urgency of one who is allowed candy for a fleeting moment and can’t choose between the coconut macaroon and the caramel chew and so swallows both of them whole. A law student on break has a dwindling account of hours and his choice of how to spend them suddenly takes on great import. I spent three of mine of The Real Housewives of Beverly Hills.That’s when I wasn’t napping, and I napped a lot.

The day before classes resume, I am still half-asleep, having been stirred awake on the sofa to the TV blaring an advertisement for a personal-injury law firm, the one where the blond attorney morphs into a raging tiger and bares her claws at the uncooperative insurance executive.

Perhaps all this conflicting exposure to crime and punishment and the wildly divergent approaches to the practice of law will acquire more clarity tomorrow when that Criminal Law class convenes for the first time. If our syllabus can be trusted, the first two cases up for discussion involve shipwrecked cannibals and the social value of confining sexual predators not for what they have done, but for what they are virtually certain to do.

I’m frequently reminded of a moment last fall when a classmate of mine sent his attorney brother a text message grousing about the inhumane pace of it all. His brother dispatched a reply containing just two words:

“Gets worse.”