Article 25

Ask an Unemployed Lawyer

In Uncategorized on 09/11/2012 at 2:37 pm

ImageChristopher Columbus Langdell: Does this look like a happy man?

Mamas, Don’t Let Your Babies Grow up to Be Lawyers

By U.L.

 

Dear U.L.: I am planning to go to law school. Given your cynical unemployed status, I assume you would tell me why going to law school would be a stupid idea. I don’t want to hear that. Instead, I would like to hear some things you learned in law school. Not laws, but some ideas you were exposed to that you might not have otherwise.

Signed,

Stubbornly Optimistic

 

Dear S.O.:

 

I wish I could say I was just like you once. But I guess I wasn’t. I took the Law School Admission Test on a dare, and I was pretty hung over. I was scared of the other people taking the test in Baltimore, not because of an aura of their brilliance, but because of so many of them were taking it for the umpteenth time, hoping to get a higher score. Some call it determination. Looked more like psychosis to me.

You ask an excellent question, SO. My rationale for going to law school was that I wanted to be part of the secular priesthood. Law school was my seminary, my opportunity to gain a deeper understanding of the world at large, to dissect its secrets and decide what was worthy of my devotion. So, in broad strokes, here are some of the things I learned:

 

Thinking like a lawyer

 

Some monochromatic, soulless, tenured fop (often the dean) will explain on your first day that you are not in law school to learn the law; you are there to learn how to think like a lawyer. The practical manifestation of this position is that you will need to spend an additional several thousand dollars after graduation to take a prep course and learn the law well enough to pass the bar exam.

 

Hard cases make bad law

 

Another legal maxim you’ll learn early. It serves as a pretext to learning how to think like a lawyer, and is often transmuted into “good intentions make for bad law.”

A good example is the rise of “status crimes,” also commonly known as “hate crimes,” where the laws criminalize behavior based on the status of the individual. The good intent was to decrease attacks on homosexuals, for instance. What happened instead was that “assaulting a police officer” became a felony offense. The Russian rock group Pussy Riot was charged with a “hate crime” against the Orthodox Church, and three of them will be spending up to two years in prison.

 

The cream does not rise to the top

 

I attended a pretty good school, and I was blown away by how many of my fellow students were afraid of public speaking or couldn’t write a sentence to save their lives. After a few months, I learned the joke was on me: Employers weren’t looking for, say, evidence of critical thinking or persuasive oration skills.

Instead, they were looking for evidence that you were willing to work long hours, even (and perhaps especially) if the long hours weren’t needed. Why do in two hours what you could charge for 20 billable hours? Physical attractiveness helped. Your ability to chit-chat without offending people with money was quite important, as were all the social graces, such as which fork was for dessert or how to properly eat lobster and crab. And being the right age was important: Too old or too much work experience made you less malleable, and therefore dangerous.

Judges are generally not “the best and the brightest.” They are the most politically connected or they might even be a member of a local firm who is not exactly wowing the partners with her earning ability.

Greg Williams taught a couple of my criminal law classes, and while he was a nice enough guy and seemed earnest, there was nothing about him that screamed, “I’ll be the future ex-president of the University of Cincinnati one day.”

I ghost-wrote an appellate brief for a lawyer who had been appointed by the court. Much to his surprise, he won the appeal; and while he was initially praised and promised more work, they have not asked him to do it again more than a year later. Judges don’t want lawyers to win these cases – trial judges hate being overturned, and appellate judges hate having their golf games compromised. They don’t want you to win; they want you to lose competently.

Potential clients who can afford to hire you are frequently more morally and ethically compromised than potential clients who have been wronged but cannot afford a lawyer. And so on.

 

There is no ‘there’ there

 

My favorite class was Legal Theory, taught by a disillusioned anti-trust lawyer who began the class by screening the David Lynch movie, Blue Velvet. One theme of the movie is that the adults are trying to hide from the kids that real life has nothing to do with the mythology – adults are fearful, crazy, manipulative and their only meaning derives from consuming each other like so many McNuggets.

Likewise, the legal system itself is designed to perpetuate the mythology – justice, “innocent until proven guilty,” etc. – while hiding the reality from the public. The reality is that our legal system was largely invented by a guy named Christopher Columbus Langdell, a former dean of Harvard Law School, around the turn of the century.

Langdell created the “case study” method, transforming the law from a technical field (you learn what the law is and then apprentice with another lawyer) into a legitimate social science, back when “social science” was considered the pinnacle of academic respectability. By using a dialectical process to study decisions (endless questions to make inferences about the “reasoning” involved), Langdell added a spectrum of “predictability” to legal outcomes.

So the law became what is perhaps best understood as a neo-Hegelian search for a hidden reasoning that always evolves to higher reason (thesis + antithesis = synthesis). Think of Republican Veep candidate Paul Ryan – take the objectivism of Ayn Rand (we are to aspire to higher reason) and remove the atheism – and you have the basis of law as a social science.

 

Intent is so 20th century

 

Think of sexual harassment: Does intent matter at all? It does not: The key point is whether the receiving party was offended, not whether you meant offense.

Every law school has a crazy tort professor who will proffer that America went to hell when our negligence law evolved from the Aristotelian concept of one’s wrong action causing harm to another to the “foreseeability” of harm that often leads to the party with the deepest pockets absorbing the costs, regardless of the actual fault of an actor.

I think this shift of “intent” is a much bigger deal. It reflects our culture: The author’s intent in writing a book is rarely studied any more, but instead the emphasis is on the message received by the reader. Brain scientists are increasingly enamored with the evidence that we have little to no free will, that most or all of our “decisions” are made on a subconscious level before we are even aware we are making a “choice.”

But it also suggests a greater cultural divide: Materialism vs. non-materialism. What was once so evil about Marxist theory – that is was totally godless materialism – is now the root cosmology of the oligarchy.

If intent no longer matters, the subjective is no longer truth, then individuals are of no consequence. Since hard cases and good intentions make for bad law, we’re better off looking for wisdom from institutions. Hence, corporations are people. The Fourth Amendment is no longer interpreted from the “fruit of the poisonous tree” – implying that the bad intent of police officers renders certain evidence inadmissible in court – but from the needs of the institution of law enforcement. The First Amendment is far easier to apply to political institutions, such as the rights of Super PACs to collect and spend money, than to individuals.

So, per your request, I will not try to talk you out of attending law school. I’ll just remind you that not only is the field overcrowded, and you cannot file bankruptcy to cover federal school loans, but if you still owe loans when you hit retirement age, they will deduct your loans from your social security check (they’ll leave you with $750 a month to live on).

If you really want to support the oligarchy and work on mind-numbingly tedious crap, go and enjoy your three years in law school. If you want to change the culture or even just make a comfortable living, you have better options. There is a reason John Grisham writes novels instead of practicing law. The legal world that he writes about doesn’t exist. There is no there, there.

Never take the advice of an Unemployed Lawyer. Always consult with an attorney for any legal advice in your situation. If, however, you want to ask, write to info@article25online.org.

 

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