Finding God in the Appellate Brief: A Quick Follow-Up

My post on finding God in the appellate brief has garnered a bit of attention, some appreciative and some not (see the second comment). I did want to clarify what I meant by the reference to God, which seems to have upset some people. First, I am not claiming that good briefs are written by God or under some sort of divine inspiration. Nor am I suggesting that believers write better briefs than unbelievers. Both of these claims strike me as patently absurd. Rather, I wanted to point out that a well-written brief exhibits a kind of beauty, the beauty of reason. A well-played game of chess shows the same sort beauty. My point is that this beauty can be taken by the believer as a trace of the presence of God. Not, mind you, as evidence of God’s exclusive handiwork, nor as evidence of superior moral or even intellectual merit. Rather, it is simply another trace of divine beauty in the world. Put in other terms, the point of the post was not to claim special merit for religious lawyering (whatever that might look like), but rather to see in good lawyering — religious or not — some spiritual beauty.

The other purpose of the post, of course, was to drop a wholly gratuitous reference to Matthew Arnold.

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New Survey: Law Students Slack Off More in the Third Year


It is surprising that they needed to conduct a survey to find out this shocking news, but I guess now it’s official: students slack off more in their third year of law school. According to a Inside Higher Ed article, the data for the study is as follows:

Activity First-Year Students Second-Year Students Third-Year Students
Came to class with readings and assignments completed 93% 84% 74%
Worked on paper requiring integration of multiple sources 80% 66% 71%
Prepared two or more drafts of paper before turning it in 69% 56% 55%
Worked harder than necessary to meet professor’s expectations 61% 49% 46%
Had serious talk with students with different political, religious or

social views

70% 68% 65%
Had serious talk with students of different race and ethnicity 61% 59% 58%
Contributed to class discussions 46% 48% 51%
Worked with faculty members on non-class activities (committees, student

life, etc.)

64% 49% 47%
Participated in clinical or pro bono project 91% 69% 46%

Insider Higher Ed states that the “survey suggests a serious third-year slump afflicts them as they are about to finish their law degrees.” Although the survey’s results definitely show some slacking off in the third year, I quarrel with characterizing it as a “serious” slacking off. If anything, the slacking off isn’t as pronounced as I had expected. Indeed, the study reveals that only a small percentage of students — typically around 10% to 15% are doing the slacking. And I’m puzzled by what the survey indicates as the most significant decline: 91% participated in clinical or pro bono work in their first year and only 46% did so in their third year. That doesn’t make sense since the first year at most law schools is filled with required courses, and students don’t get a chance to try out a clinic until their second or third years of law school.

The study is available here.

Despite the slacking off, I still believe that the third year of law school is a valuable experience. In the fall of 2005, I debated with Laura Appleman whether the third year of law school should be scrapped on Legal Affairs Debate Club. I still stand by my position. Condensing law school to two years would have a very negative impact on the law school experience. I wrote:

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The Wall Street Journal Law Blog: Welcome to the Blogosphere


The Wall Street Journal has started a new blog, called the Wall Street Journal Law Blog. Unlike many blogs hosted by the mainstream media, this blog has trackbacks and comments. According to the blog:

Our mission: to scour the universe for compelling stories in two related areas: business and law, and the business of law. Law and business is a broad intersection, encompassing such current news as the Enron trial, the Merck litigation and the RIM patent dispute. The business of law is focused on law firms and in-house law departments. We’ll write about industry news and legal trends, with a sprinkle of good old-fashioned gossip.

We’ll link to the best coverage of law and lawyers from around the Web, report some news of our own and look to you for contributions. We heartily invite your comments, tips and insights.

The primary blogger is Peter Lattman, who worked as an attorney before becoming a reporter.

In an early post, Peter has the scoop on what Article III Groupie will be doing:

Here’s the latest buzz: Queen of the blogosphere Ana Marie Cox is said to be handing over the reins at her spicy political blog Wonkette. David Lat, the federal prosecutor who revealed himself to the New Yorker magazine in November as the author of the popular “Underneath Their Robes” judicial blog, is expected to start blogging for the site.


Should J. Edgar Hoover’s Name Be Removed From the FBI Building?


A recent article in the LA Times discusses the ongoing debate about whether to remove J. Edgar Hoover’s name from the FBI building. J. Edgar Hoover was the head of the FBI from 1924, its early days before it was even called the FBI (it used to be called the Bureau of Investigation), until his death in 1972. Throughout his career, Hoover engaged in a massive array of abuses. According to the LA Times article:


Every year for the last three years, Rep. Dan Burton, a Republican from Indiana, has introduced a bill to strip J. Edgar Hoover’s name from the FBI’s headquarters — an initiative that has been largely ignored.

Now, however, amid headlines about possibly illegal government surveillance of Americans inside the United States, the effort to rename the Hoover building is starting to attract more supporters, most recently U.S. Circuit Judge Laurence H. Silberman, a Republican who was a leader of the presidentially appointed commission on pre-Iraq-war intelligence.

“This country — and the bureau — would be well served if his name were removed from the bureau’s building,” Silberman, a Reagan appointee, told the 1st Circuit Judicial Conference in June. “It is as if the Defense Department were named for Aaron Burr.”

Should Hoover’s name be removed from the FBI building? My answer is a definite yes. Although Hoover played an enormous role in shaping and growing the FBI, his record of abuses is so ugly and inexcusable that it far overshadows any achievements. For example, here are some of the things Hoover did:

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Ads You Can’t Escape


I received my monthly subway pass over the weekend, which SEPTA refers to as my “Transpass.” It looks something like the image on this post, except that the January pass is embossed, for the first time, with an advertisement for a local latino newsweekly. The back of the card contains more information about the weekly, along with (now) very fine print about the terms and conditions of subway riding.

I know this is just the sort of thing that rational people ignore. But it drives me a little crazy. I’d prefer to avoid as much persuasive messaging as I can, and I very much dislike new advertising on previously uncluttered surfaces. I don’t want my fruit tattooed with ads; and I think I ought to be able to get onto the subway without paying the mental tax of ignoring an ad.

I just came back from NY, whose metrocards are blessfully free of advertising. So I was wondering: are other transit agencies also trying to turn their tickets into a profit center?


AALS Blawg Happy Hour: A Reminder

drink2a.jpgThis is a reminder about our happy hour, in conjunction with PrawfsBlawg, during the AALS conference this week in Washington, DC. The happy hour will be held at Cloud, on Wednesday, January 4th at 9:30 PM.

Cloud is at 1 Dupont Circle NW, which is on New Hampshire Avenue just south of Dupont Circle. Click here for directions.

I hope that many readers are able to attend. Please RSVP if you haven’t already, but you’re welcome to stop by even if you haven’t RSVP’d.


How Much Should Judges Get Paid?

Uh, oh.

In his first year-end report Chief Justice John G. Roberts, Jr. repeats the dubious claim his predecessor William H. Rehnquist made for years: the Republic will fall unless Congress immediately increases the salaries of federal judges.

Roberts says that the low current pay is a “direct threat to judicial independence” because it means judges can serve only “for a term dictated by their financial position rather than for life.” Judges will be forced to take more lucrative private jobs to support themselves in old age. Unless salaries increase substantially, Roberts claims, the federal bench will become less diverse because only the “independently wealthy” will be able to serve.

Federal district court judges make $165,200 a year. Circuit court judges make $175,100. Associate justices rake in $203,000. And the Chief Justice himself is paid $212,100.

Is it really so difficult to make ends meet on these princely sums?

Sure, lawyers in private practice can earn much more. Partners at top-flight firms make several million dollars annually. But federal judges have way more interesting jobs with all kinds of wonderful perks, including a permanent place in history.

If the “low” salary means some people don’t apply to be judges, then so be it. After all, does a lawyer who is in it for the money really have the right temperament to be a judge? Does the average American have a decent chance of receiving justice before somebody who considers a six-figure income a vow of poverty?

Chief Justice Roberts points in his report to the recent increase in the number of federal judges leaving the bench for private practice. That’s too bad. But would the judge who is scraping by on $165,000 (or more) really stick around for the 30% increase Roberts is asking Congress for?

For the record, when jurors serve in federal court they earn $40 per day plus bus fare.

By that standard, judges are paid very nicely, thank you.


DRM, Copyright, and Contract

Cory Doctorow at BoingBoing discusses a post from a blogger about an insert in the new Coldplay CD from Virgin Records. The insert states that the CD contains extensive Digital Rights Management (DRM) restrictions:


According to some of the restrictions, the CD cannot be copied onto a computer hard drive; songs cannot be converted into MP3 files; and it might not play in some CD players, such as portable CD players, car CD players, and others. I love the special rhetorical touches, such as that by purchasing the CD, you’re helping the anti-piracy cause and that the DRM is “special technology” added “for you to enjoy high quality music.” It reads as if the purchaser should be giddy with excitement that the CD contains this really cool technology that makes the CD less functional. Doctorow writes:

Coldplay’s new CD comes with an insert that discloses all the rules enforced by the DRM they included on the disc. Of course, these rules are only visible after you’ve paid for the CD and brought it home, and as the disc’s rules say, “Except for manufacturing problems, we do not accept product exchange, return or refund,” so if you don’t like the rules, that’s tough.

I’m not a contracts or commercial law expert, but since most CDs do not have such restrictions, it is reasonable for a purchaser to assume that the CD will have a similar level of functionality as other CDs. To the extent that a person is sold a CD with much less functionality, it would strike me that the purchaser would not be out of luck, but would have some potential legal remedies. Since the issue is beyond my range of expertise, I pose the question to readers more well-versed in this area of law: To what extent would a purchaser of the Coldplay CD have any right to return the CD notwithstanding the clause that prohibits returns absent a manufacturing defect?


Oyez! Oyez! Article III Groupie Is Back In Session

underneaththeirrobes1.jpgUnderneath Their Robes, the controversial blog by the no-longer anonymous Article III Groupie (David Lat) is back online. Recently, news reports revealed that David left his job as an AUSA in Newark. So, as Article III Groupie would certainly ask: What is David up to next? The news accounts are vague about her his future plans, only indicating he’s on his way to Washington, DC. We’ll have to wait for more details at Underneath Their Robes.

Related Posts:

1. Solove, Article III Groupie Disrobed: Thoughts on Blogging and Anonymity

2. Solove, The Mysterious Disappearance of Article III Groupie


The Funniest Justice

scalia_smiling.jpgFor all of those law geeks who obsess over Supreme Court trivia, here is a new question: Who is the funniest justice? Well, the data has been carefully analyzed by Professor Jay Wexler in a new article in the Greenbag, and the answer is in. As summarized in a NYT article on the study:

Transcripts of oral arguments at the United States Supreme Court have long featured the notation “[laughter]” after a successful quip from a justice or lawyer. But until October 2004, justices were not identified by name, making it impossible to construct a reliable index of judicial wit.

That has now changed, and Jay D. Wexler, a law professor at Boston University, was quick to exploit the new data to analyze the relative funniness of the justices. His study, which covers the nine-month term that began that October, has just been published in a law journal called The Green Bag.

Justice Scalia was the funniest justice, at 77 “laughing episodes.” On average, he was good for slightly more than one laugh – 1.027, to be precise – per argument.

Justice Stephen G. Breyer was next, at 45 laughs. Justice Ginsburg produced but four laughs. Justice Clarence Thomas, who rarely speaks during arguments, gave rise to no laughter at all.

Of course, it is not clear that Scalia’s victory is evidence of humor and wit on any absolute scale. I found during law school that my sense of what was funny became seriously warped. I started finding even mild judicial humor uproariously funny, and would read sections of opinions to my speech-pathologist wife. For a while she would listen with an indulgent expression on her face, but eventually she gave me the news with the air of a woman telling a child the awful truth about Santa Claus. “Nate,” she said, “I don’t think that legal humor really counts as real humor.”