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Intelligence: The Gathering - Graphic and Gratuitous

Grads are the New Illegals - Robot Pimp

Meet Entitlement Eric - Robot Pimp

Wherein I Solve World Peace - Lampshade, Esq.

A Necessary Delusion - Shadow Hand

Do you even need to shave overhead? - Lawyerlite

LSAT Jenga - Publius Picasso

http://www.constitutionaldaily.com/index.php?option=com_content&view=article&id=1573:legal-reasoning-redux-5&catid=38:there-and-never-back-again&Itemid=65

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Chicago Law Prof Boldly Makes the Case for One Year Law School

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In an op/ed on Bloomberg, Chicago Law professor Martha Nussbaum has made the bold assertion that law school needs to only be one year long:

When William Rainey Harper, president of the University of Chicago, proposed to add a law school to the new university in 1902, he entrusted the project to Ernst Freund, a political-science professor, former practicing lawyer and well-known expert on police power and the free-speech rights of dissidents.

Freund argued that law students shouldn’t simply learn practical strategies (as in the old days when law was taught by apprenticeship) and the technical rules known as “black letter law.” Rather, they should have an education that also included economics, sociology, political theory and philosophy.

When Harper asked whether this curriculum wasn’t better suited to a “research department of jurisprudence” rather than to the worldly practitioner, Freund said absolutely not. Practitioners will go out into a society where all is not well, and they had better be equipped to think broadly, critically and independently about it. Otherwise, they would simply be tools in the hands of powerful interests, Freund said.

His vision of legal education gradually won out. Once Chicago was an outlier; now it is just one example of the dominant idea of legal education. Today, in addition to basic law subjects and a variety of practice-oriented courses, law students learn to see society through the lens of the social sciences and the humanities, primarily in elective courses taken during the second and third years.

This appears on the surface to be making the case for a three year program, with second and third years filled up with a grab bag of humanities and social sciences classes. However, this argument leads to the logical conclusion that all that is needed is the first year. You see, most law students have already spent four years studying the humanities. They already possess that lens through which to view society and the law. Thus, we should conclude that Nussbaum is arguing that the 2L and 3L years be waived for students possessing an undergraduate degree in the humanities.

We must reach this conclusion because the alternative is that Nussbaum thinks this necessary humanities education can come only from law professors, most of whom lack the education and publication history necessary to be a humanities professor. This is of course absurd, and applying a little reductio, we conclude that Nussbaum thinks the undergraduate humanities education suffices.

 

Of course that's wishful thinking. Nussbaum is perfectly fine with wasting law students' time and money no matter how absurdly it is done:

A perusal of examples will begin to show what such courses can offer the future practitioner. A student at Chicago (similar to other law schools) might take a class with a leading criminologist, studying philosophical theories of punishment and the history of prisons -- and then visit the maximum-security prison at Joliet, Illinois, the only surviving North American exemplar of Jeremy Bentham’s famous “panopticon” (where everyone is watched all the time). A future lawyer would gain an invaluable set of tools, philosophical and historical, for thinking independently and critically about a broken system of imprisonment.

It is of course important for lawyers of all stripes to understand the basic theories of criminal punishment -- deterrence, retribution, rehabilitation, isolating dangerous individuals. That's maybe a week out of 1L criminal law. But the field trip to Joilet to see a piece of prison design that is used no where in the nation, and possibly no where in the world? That's truly absurd. What's next from Nussbaum? Is she going to tell us how for just $50,000 a year, students at Chicago have the opportunity to engage in critically mind expanding conferences discussing the intersection of progressive gender politics with legal systems in force in exactly zero nations?

Eric Posner Gives Zero Fucks

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The government says quite reasonably that if we had a public debate about these techniques then the techniques would be rendered either ineffective or less effective. That's what makes it so hard. So in the end the public, in my view really, has choice but to give a lot of trust to the secret court and the members of congress who are paying attention and the executive branch. [NPR]

That’s Chicago Law professor Eric Posner discussing the recently leaked intelligence gathering techniques used by the NSA on NPR’s All Things Considered. Too bad Posner didn’t consider all the things, more like he just considered one of the things. If the government says they need it, then they need it, and if they need to not tell us what it is, then that’s okay too.

Posner makes the same argument in a bit more depth in a debate hosted by the New York Times. Just in case it seemed like a slip up or an out of context quotation, nope. In his words, "I don't see a problem here." Your average AP US History student can at least identify the problem.

There is of course a balance to be struck between the government’s need to keep certain operations secret in order to make them effective and the public’s right to a democratic government. Details of troop deployments, the precise algorithms used to flag airline passengers, what information certain captured terrorists have disclosed – all those things make sense to keep secret. But the fact that troops are being deployed at all? That airline passengers are being flagged for extra scrutiny? That we’re capturing and interrogating terrorists? Those are all the types of things necessary for the citizenry to know, and letting them know does not compromise the government’s mission one iota.

The government can keep secret the exact leads its gotten from gathering telephony metadata, but the fact that it’s collecting the phone records of every single person is the type of thing that needs to be disclosed to the public and subject to open debate.

And just to show how wrong Posner is on this, disclosing surveillance techniques typically increases their efficacy, not decreases it. Announcing DUI checkpoints decreases the number of drunk people on the road. It allows some people to get drunk and just take a detour around the checkpoint, but on the whole the mere knowledge that checkpoints are out there causes plenty of people to either stay home or just not drink as much. Same goes for cameras to catch people speeding or running red lights, bag checks at baseball games to prevent people from bringing in their own booze, and those “Protect by Brinks Home Security” window stickers to discourage burglaries.

Someone who is really determined will still find away around these techniques. They’ll take detours, put their flask in cargo pants pockets, or just break into another house. But people who are less committed? They’ll slow their car down, shell out the extra money for stadium beer, and stick to slinging crystal instead of moving up to B&E.

So what about announcing these techniques to terrorists? Surely those people are more committed to their job than the average National’s fan who just doesn’t want to pay for the most expensive stadium beer in the country. If we announce our techniques, won’t they just find a way around them?

Not if the technique is monitoring every phone call and e-mail conversation. Getting around a DUI checkpoint is easy. Communicating with your international terror network without using an electronic medium doesn’t have such an easy workaround. Bin Laden’s courier could only run so far. Letting terrorists know about the NSA’s data collection is more likely to prevent acts of terrorism than keeping it secret.

Except for one little hitch. The NSA’s data collection will be less effective not because would-be terrorists will find a work around, but because the American citizenry might fight back against it.

“If we told you, terrorists could easily avoid our surveillance” is a fair argument.

“If we told you, you wouldn’t let us do it any more” is not. And we don’t just need to trust the government on this. The Constitution is based on the premise that our government can’t be trusted. That’s why we have a democracy, why we have frequent elections, why the power of the federal government is limited, and why we have a Bill of Rights just to double down on our view that even a limited federal government still can’t be trusted.

Well, at least Posner doesn’t teach criminal procedure, or constitutional law, or privacy law, or the law of being a decent human being. He just teaches contracts.

…Which would be okay, except that earlier in his NPR segment, when talking about data collection by private companies such as Google and Facebook, he admits to not reading the terms and conditions. Not for the same lazy reason the rest of us have for skipping over them, but because he’s incapable of reading and understanding them:

You can’t read those things because they’re too long and complicated, and I teach contract law.

Jesus NSA Christ! You teach contract law at a top five law school and you are incapable of understanding the most ubiquitous contract in the world. The hell qualifies you to teach contract law then? That you understand promissory estoppels? Big fucking deal. Many of your students are going to go on to not only read but to write contracts that are far longer, more complicated, and involve not only complex legal issues but also issues unique to the client’s industry, so what makes you qualified to train them?

Worse than the fact that Posner can’t read an extremely common contract, and that he thinks a benevolent (fingers crossed) dictatorship is a perfectly fine form of government, is that he seems to have just given up. Law is complex? Fuck it, won’t read it. Government wants to encroach on my rights? Fuck it, let them.

Students Posner teaches will likely go on to be leaders in firms, professors, judges, and probably some politicians and high ranking government officers. Perhaps, just perhaps, Posner should get out of the way and let these people get their education from someone who still gives a damn.

 

PS: If you happen to be Eric Posner, here's some videos for you to watch while you're busy counting down the minutes until retirement:

California Man Cross over Crosswalk

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We here at Con Daily love a good story about a citizen activist stepping in to correct a problem of government bureaucratic incompetence, especially when that do-gooder is punished for his good-doing. Not that we like government incompetence or punishing the good guys -- it just makes for a good story.

Meet Anthony Cardenas, a Vallejo, CA man who was fed up with a dangerous intersection at Sonoma Blvd and Illinois St:

I tried helping my community out. I got tired of seeing people get run over here all the time.

People run over! All. The. Time!

So Cardenas got out a bucket of paint and put his own crosswalk on the intersection. Then the city scraped the crosswalk off, and Cardenas was arrested and charged with vandalism. [CBS]

Why did the city respond that way? Perhaps taking a look at the intersection might help:

 

There already is a crosswalk there! Sure you have to cross Illinois St. to get to it, and then cross back over if that's not the side you want to be on, but there hardly seems any pressing need to add another crosswalk there.

And as for those people who get run over all the time? The city had no record of a pedestrian being struck at that intersection.

Would it make sense to add another crosswalk? Maybe, but traffic planning is a pretty complicated subject. There may well be a good reason why the crosswalk is only on one side -- there doesn't appear to be any difference in the street layout on either side, but we're not experts on this. We do know however that crosswalks don't protect people. The paint doesn't make it suddenly safe to cross the street there. The crosswalk is an indication to the pedestrian of where it is safe to cross, so painting a new crosswalk potentially adds danger, telling people to cross at a location where it isn't safe to do so.

As much as we love a story of the little guy fighting the big stupid government ...today we just don't have that story.

Solo Practitioner: Lone lawyer wins Post Hunt

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The Washington Post Hunt is an annual tradition that is part scavenger hunt, part riddle, part trivia competition. Mostly riddle though (and smartphones make the trivia a bit easier to manage, once you know what to look for).

Some 12,000 people competed, typically in teams, either to combine efforts on cracking the riddles, or to spread out across the city and gain an advantage in reaching the sites of physical clues.

This year for the first time a single individual won -- Sean Memon, a 2008 JD/MBA grad of Duke, and now an associate at Sullivan and Cromwell in DC. Congratulations, and good luck trying to deposit your oversized $2000 check. [WaPo]

For those of you unfamiliar with the competition (so ...probably all of you), some of the riddles are very challenging, and the final clue was particularly tough. After solving the previous five riddles, hunters were directed to a stage to receive the final clue at 3:00pm. The clue was as follows:

1.The final clue begins at three-oh-one.

2.GWUYMASL

3.TLWUYRGM

4.FMSWGTDP

5.LGBIEFYA

So what happened at the stage at 3:01?

Nothing.

That was a clue. We'll give you a minute to work on it...

 

Did you come up with dialing 301-668-4464? (301-NOTHING) Yeah, probably not.

And that was just the start of the clue. A pre-recorded message left another clue, which once understood told hunters to use the four sets of letters to decipher a message hidden within an earlier puzzle which then turned into directions to the end point of the game, and those directions were themselves more riddles. Turn west at green mountains? Hope you're an Americana buff and know which is the Green Mountain State. [See all the puzzles and solutions here.]

It's a challenging enough competition when you have a team of folks who've studied all the past years' clues to get a feel for how they work. For an individual to win is pretty impressive, so congratulations once again to Sean Memon, and we'll leave you with these words of wisdom from Supreme Court Justice Antonin Scalia:

Well, you know, two chiefs ago, Chief Justice Burger, used to complain about the low quality of counsel. I used to have just the opposite reaction. I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.

And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I’m usually impressed with how good they are. Sometimes you get one who’s not so good. But, no, by and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.

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