While it’s rarely mentioned in the lawbooks, underneath the harsh talk of law and punishment is an expectation that prosecutors, in whose hands monumental power resides, will exercise sound discretion.  That means, of course, that they would know sound discretion if it bit them in the butt.

At Popehat, former federal prosecutor Ken writes about the good times as a kid playing with a loaded gun:

So when I got them a search warrant for the ranch of one of the lead targets of the investigation, they were thrilled with me. “Ken,” they say, “we’ve arranged air support for this operation. So we want to have you picked up on top of one of the buildings downtown in one of the Sheriff’s helicopters, give you a raid jacket, and have you come along on the search to run a command center on the ground and trouble-shoot any legal issues with the search.”

HOLY SHIT, THAT SOUNDS LIKE FUN, my 26-year-old self thought. (Yes, I was a 26-year-old federal prosecutor. Defense attorney hand-wringing — which annoyed me at the time, but which I now join — goes here.) A helicopter raid! A raid jacket! A COMMAND CENTER! They’ll probably give me a gun. You know, in case any shit goes down.

But even at 26 I had a certain rudimentary old-mannish quality, and it occurred to me to ask — does that sound too good? So during lunch I wandered into the office of the U.S. Attorney– who had been my supervisor in rookie row not long before — to talk about it.

He listened sympathetically. Then he told me. “Ken,” he told me, “if your reaction to a proposal is “HOLY SHIT, THAT SOUNDS LIKE FUN,” then as a government lawyer and member of law enforcement, you almost certainly shouldn’t be doing it.”

It’s a very good rule, but what it reminds is that not every young prosecutor has the good judgment to ask for a wiser view.  Then again, not every prosecutor who asks will get a wiser view.  Worse still, the need for a wiser view, the sound discretion we expect every prosecutor to possess, doesn’t arise with every decision a young prosecutor makes.  There are many decisions to be made, in many cases, all the time, and they can’t run to the boss every 12 second.  They are expected to make their own decisions. That’s why they’re paid the big bucks.

So what decisions affecting the lives of others would you like to put into the hands of your typical 26 year old?  Would you have them decide whether the father of some sweet children will be there to feed them?  What about the decision of how to make decisions in running a major multinational corporation?  Certainly, most 26 year olds who have never held a non-law job would know better than CEOs how corporate decisions should be made, right?

Ken’s story reminds us of how fragile this system really is, despite the bluster of righteousness that covers up all the ugly warts.  It depends on so many factors all working properly, including the exercise of sound discretion by prosecutors who get giddy at the prospect of playing Elliot Ness.  It’s not sufficient to say that a chain is only as strong as its weakest link, because so many of the links are weak, some barely exist at all. 

Historically, the tempering force to the worldview of youthful prosecutors was the judges, who were expected to use their experience and maturity to guide their executive branch cousins back toward the path of lenity and reasonableness.  That hasn’t always worked well, however, as federal judges were almost exclusively drawn from the ranks of prosecutor’s offices and Biglaw towers, where there was little concern for the way children wielded their weapons.

This was exacerbated by the shifting of power away from judges into the hands of those very same baby prosecutors, whose charging authority coupled with mandatory minimum sentences, and for a time when the sentencing guidelines turned federal judges into junior accountants, made them near omnipotent.  Between the agents they adored, and their belief (or at least acquiescence) that whoever a g-man said was a criminal was, without question, a criminal, and their Ivy League sense of propriety, they could do no wrong.  Even as they drank themselves into oblivion after work, or smoked a bit of reefer with their officemates while pretending it was different than the black kid they sentenced before lunch that day.

If it was just old guys like me who told stories about children with guns being left in charge of our legal system, it could be easily dismissed as the rantings of the other side, sour grapes, maybe even a conspiracy theory in play.  But when former federal prosecutors remind us that they were children once, and given the power to destroy lives, the point is far better made.

Ken was fortunate to serve under a United States Attorneys who both understood something about the job and something about youth.  Not every assistant is so fortunate.  Not every defendant is so fortunate either.

The days when a father gave his offspring his first penknife to carry as a tool that will serve her well in life in so many ways are gone.  Today, the carried penknife would be the surest route to the penitentiary, for no other reason than its mere possession as a terrorist threat.  Were we all potential terrorists, but didn’t know it?  It doesn’t matter. That’s the rule now.

But the Garden State, in knee-jerk and premature reaction to the suicide of Tyler Clementi, passed a law. What use is a tragic death without a new law?  From the New York Times :

The law, known as the Anti-Bullying Bill of Rights, is considered the toughest legislation against bullying in the nation. Propelled by public outcry over the suicide of a Rutgers University freshman, Tyler Clementi, nearly a year ago, it demands that all public schools adopt comprehensive antibullying policies (there are 18 pages of “required components”), increase staff training and adhere to tight deadlines for reporting episodes.

Each school must designate an antibullying specialist to investigate complaints; each district must, in turn, have an antibullying coordinator; and the State Education Department will evaluate every effort, posting grades on its Web site. Superintendents said that educators who failed to comply could lose their licenses.

Schools are now requires to investigate allegations of bullying, even anonymous claims coming through the police-operated “crimestoppers” phone lines.  Not surprisingly, the definition, beyond the obvious, is broad:

“Harassment, intimidation or bullying” means any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic, that takes place on school property, at any school sponsored function, on a school bus, or off school grounds as provided for in section 16 of P.L.2010, c.122 (C.18A:37-15.3), that substantially disrupts or interferes with the orderly operation of the school or the rights of other students and that:

a. a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging the student’s property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property;

b. has the effect of insulting or demeaning any student or group of students; or

c. creates a hostile educational environment for the student by interfering with a student’s education

In other words, anything that hurts anyone else’s feelings. This isn’t about the lunchline bully any more, but about the new world order where no mean words are ever uttered (or typed, as the case may be).

Caveat: For those who will respond in outrage that I just don’t get it, that they/they’re child has suffered horribly at the hands of bullies who destroyed their lives with invectives and lies, stop.  There is bullying, and bullying is bad.  Not every mean word is horrible bullying, and not every child who utters a mean word is a criminal who belongs on the bullying registry and should be given life in prison.

New Jersey has managed to find a way to criminalize every child.  Admit it or not, kids say mean things sometimes. They do it out of anger and insecurity; they do it because they’re children.  We did it. Our children did it. The teacher’s children did it. Tyler Clementi did it. We all do it.

But this law goes so far down the road that even an anonymous allegation will give rise to the demand for an investigation, at the risk of the teacher’s license and the district’s reputation.  You can bet your bottom dollar that no teacher is putting their career on the line for your li’l darling.  This has the potential to be rife for abuse, not to mention the loss of personal and class time spent in teaching children to “respect” each other and celebrate their differences (upon threat of imprisonment).

Don’t ask me to define what should constitute actionable bullying as opposed to normal child behavior, or bad behavior that was addressed on the school level by attentive and pro-active educators who exercised reasonable discretion in keeping their charges safe.  Granted, with the introduction of the internet into the mix, dealing with the school yard tough isn’t sufficient.  But distinguishing between conduct that presents a serious threat and conduct that every child, at one point or another, engages in defies legal definition.

What is clear is that defining crime by the way it makes the “victim” feel is a looming disaster.  By making “hurt feelings” the dividing line between acceptable and criminal behavior, we turn every child into a victim and every child into a perpetrator.  Sure, no parent believes her baby could do such a thing, but the kid not only can, but invariably will, do something that some other kid will feel is hurtful.  Just as it happens with adults.

This law, which is the toughest in the nation and may well serve as the model for “save the children” laws elsewhere (since no one wants to have a worse bullying problem than Jersey, of all places), may present one of the worst threats to children ever.  As it is applied, as schools are mandated to investigate and “prosecute” bully after bully, as anonymous “tips” are use to get, and get back at, any child who didn’t invite someone to their birthday party or picked them last in gym, we may end up with a state where every child is on the bullying registry.  Or in juvenile hall.  Or in jail. At least in trouble. How’s that going to look on their college application?

This is not a defense of conduct that physically harms children.  Nor is this a defense of harassment that crosses the line of hurt feelings to real harm, whatever that means.  This is a call to stop the headlong rush to make every child a criminal in a world where no one’s feelings are every hurt.  This is a call to remember the old adage, “sticks and stones can break your bones but words can never harm you.”  We need to toughen up to mean words.  We need to get over hurt feelings. We need to avoid the creation of a society where every child is a criminal.

This is a defense of children.  All of them. They’re all bullies at one time or another. And they’re all victims. But they are not all criminals.

The slide from “Dan Kahan’s new magisterial HLR Forward, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law” into the attack on Paul Campos’ was nearly seamless, not because it was smooth, but because segues are for kids.  Dave Hoffman at  Concurring Opinions writes:

Overconfident display encourages people to take polarized views of law, to distrust the good faith of the Court and of legal institutions, and to experience the malady of cognitive illiberalism.  Kahan concludes that Courts ought to show doubt & humility –  aporia  – when deciding cases, so as to signal to the other justices & the public that the losing side has been heard.  Such a commitment to humble rhetoric would strengthen the idea of neutrality, which currently is attacked by all comers.  Moreover, there is evidence that these sorts of on-the-one-hand/on-the-other-hand arguments do work.

Indeed, Paul Campos believes that the way he’s spoken about law school economics is responsible for the negative reaction his colleagues (at Colorado and nationally).

As an example of the how Campos’ revelations have been seized by the Philistines, Hoffman goes on (with my added paragraph breaks to make readable):

This post was catnip for many bloggers and commentators.  Many of the commentators are students – they say, although being anonymous, they might be spambots, or slumming volokh conspirators, for all I know.   It’s also pointing out that the best available evident makes these unsatisfied customers out to be exceptions to the norm. 

Then there’s a set of bloggers – exemplified by Scott Greenfield – who are almost all 1) older, 2) white, 3) men, running 4) PI or criminal law practices.  Many have sought positions as law professors, but haven’t obtained tenure-track jobs.  Others, like Scott, appear to be happy in practice.  For these machoblawgers, law professors’ language in response to the “crisis in legal education”  exemplifies the problem with law schools:  it is pretentious and elitist (“sherry sipping”); it is feminine and effete (“dulcet tones”, “vapors” and “delicate” law professors versus “brutish” talking “like a lawyer”); and it is (3) incomprehensible (“long words strung together in seemingly random ways”).  

Note how Campos and Greenfield have come to the identical criticism, though from quite different premises.  Law professors are eggheads, protected from brutish reality by their high walls.  If only “they” understood how the world really worked.  If only they confronted it with more forceful, manly, speech.

Machoblawgers?  There’s a nice ring to it.  Yet Dave contends that we, the Machoblawgers, may come off tough and manly, but wholly unpersuasive.  Persuasiveness, as asserted in Harvard Law Review, comes from the delicate, nuanced language of the effetes (his word, not mine, but I like it). 

Putting aside the resort to logical fallacies ranging from the weak ad hominems to the false dichotomy, and ignoring the blatant confirmation bias, Hoffman delivers the coup de grace:

Now all this has deep roots in the robust American tradition of anti-intellectualism (mixed with a bit of insecurity by Campos, I think, who has as much as admitted that he doesn’t do anything to merit his salary).  But in it, we can see exactly how clever bloggers deploy really strong arguments without considering the other side, saying that this is what it means to “talk like a lawyer.”  Greenfield is surely well-positioned to tell us how lawyers in his community (the criminal defense bar) talk.  So, although the lawyers I know and practiced with sounded nothing like him, there’s truth to the accusation.  The question is: does talking and arguing with less nuance make you a better lawyer, and, if so, is “better” lawyering compatible with better law?

We are not merely anti-intellectuals for our blunt and strong arguments, but Hoffman argues that we are ineffective.  To be a “better lawyer,” we should sound more like law professors. 

Missing from the analysis is a basic understanding of communication, that it consists not merely of sending but of receiving as well.  What we say is only as valuable as what others hear.  He would be absolutely correct in his assessment of persuasiveness if we were playing to the Academy, where the strain to mix in ten dollar words and such depth of nuance as to make every utterances indecipherable is what distinguishes the poseurs from the pretentious.  But we don’t live in that world.

There’s a reason why few outside the Academy read the “intellectual” lawprof blogs. No, it’s not just because they tend to be tedious and boring. It’s that they’re too difficult to understand.  Rather than say things like “I agree with this and disagree with that,” they can go on for paragraphs with such clue as “this is ‘notable,” but that is”curious.” Scholars write that way. The rest of us don’t.  And they wonder why law reviews have never gained widespread popularity.

Even here, where I use language that Dave considers brutish and vulgar, overly strong in making my point and lacking in the humility (meaning acknowledgement of the legitimacy of opposing arguments or points of view), a significant percentage of readers think I’m too subtle and nuanced, and feel the need to reduce my point to a far more simplistic and gross level.  One thing that lawyers learn in the real world is that we speak to a wide spectrum of folks, and it’s very difficult, if not impossible, to express things in a way that will work for everyone.

Communication. Making our point in a way that the listening/reader will understand and appreciate it, is something that comes not from argument, but experience.  We start learning at birth and development this experience every day of our lives.  We talk to others, from society’s lowest to its most powerful, and adapt our communication to suit our purpose.  As lawyers, we adapt to our clients, our judges, our juries.  Not too many juries consist exclusively of lawprofs.  There is the occasional effete juror, but since neither side plays to their sensibility, they can think we’re all brutes.

No one is persuasive talking a different language from their listeners.  While I’ve been critical of lawprofs’ refusal to lay down the big words and hiding behind the pedagogical jargon, if it makes them feel less anti-intellectual when chatting among themselves, that’s fine.  Many insular groups feel better about themselves by using their own secret lingo, which creates a sense that they’re special. 

When advocates argue a point, they do so for the purpose of prevailing in their position.  We argue to a trial judge differently than an mid-level appellate bench.  And often differently to a top level judge.  We often know who we are arguing to, where they came from and the nature of argument they find persuasive.  We know that some are biased against us from the outset, and we try to address that bias.  We research our audience to try to find a way to squeeze our arguments into their mindset.  We often knew them when they were younger, advocates just like us, and are aware of their intellectual proclivities.  Or lack thereof.  What they aren’t, and weren’t, were lawprofs, who used words like “normative.”  We know this.

As for blawgs, where Hoffman tries to apply the lessons from the Supreme Court and law review editorships, we aren’t writing to persuade the effete or bore the reader to absolute death by belaboring every point.  For the most part, we already know the counter-arguments, and they don’t have to be spelled out “in fairness.”  We are writing for our fellow groundlings, and sometimes trying to be informative and others times explanatory.  Sometimes, small shifts in understanding among those inclined to agree serve this purpose, though our own nuance is used differently than would scholars, who can’t see it because they lack the experienced gained in the trenches.

It’s not that I don’t appreciate the sometimes interesting ideas raised by lawprofs who are doing much of the heavy-lifting when it comes to new ideas about the law.  Every once in a while they come up with something truly insightful and novel, and I suffer the naive and leaden posts to find those rare nuggets.  It’s just that I wish they would use real words and express clear thoughts so it wouldn’t be so brutally difficult to read their posts to figure out whether they have anything worthwhile to say.  I can live with being a brute to their effete, if only they would engage in some occasional “intellectual” noblesse oblige for the benefit of the manly.

Some have noticed a dearth of new posts of late.  Unfortunately, the flow has ebbed at  Simple Justice World Headquarters following Hurricane Irene.  While no damages was suffered, aside from a few trees down, including a huge old Locust over the chicken coop (which manages to miss the coop entirely), everything is fine.  Even the birdhouse remained unscathed.

However, the same cannot be said for the magical forces that make modern life hum.  Without power, telephone and internet, it’s quiet around the place.  Given my work schedule, up at dawn and asleep at sunset, there lack of light isn’t really a big problem.  I subscribe to Joseph Lucas’ admonition, “a gentlemen doesn’t motor after dark.” 

It took a few days before there was any electricity to be had in the surrounding environs.  The Starbucks were dead.  The libraries shuttered. Even the cell service is dead, as they aren’t getting any more power than anyone else.  Yes, that means your iPad won’t save you, though some hipsters walk around and pretend that they’re still getting service to justify the debt.

I remember the old days, before the internet gods controlled our lives. I’ve returned to those quiet, pastoral ways.  It’s nice, like living on the frontier.  The absence of hot water adds to the allure. 

Having found a working connection and outlet, it only seemed right to let anyone who cares know that I’m alive and well.  Actually, better than well. Well rested.  This won’t last forever so, I plan to enjoy it as long as I can.  Having take a quick look at how much has happened in the past few day, I’m inclined to delete all non-client emails and wipe my RSS feeder clean.  It’s a bit overwhelming.

Hope everyone else is safe and well, and that others caught in the power company’s clutches survive.  I’ve had a ton of posts I wanted to write, and perhaps they will still be relevant by the time I get back.  But I’m sure that you’ve found plenty of other stuff to keep you busy in the blawgosphere and are doing just fine without me.

So I’ll be back soon enough, perhaps even tomorrow.  LIPA promises, but they are not exactly the most reliable bunch when it comes to doing stuff relating to electricity.   They are excellent at billing, however.  Then, you can go back to whining that I post too often and am such a big meanie. 

And the  KitchenAid refrigerator still isn’t keeping things cold.  Go figure.

When  Orin Kerr posted about a survey of George Washington Law School alumni, noting the elective course that proved most useful, the winner was astounding:

1. Evidence — 156 respondents (27%)
2. Administrative Law — 120 respondents (21%)
3. Corporations — 105 respondents (18%)

Evidence?  Was it possible that a person graduate law school and not take a course in evidence?

This was definitely a good time to pull out the “shocked and appalled” cliche.  What became of the core curriculum of law school that included the foundational subjects, torts, real property, contracts, criminal, constitutional, civil procedure?  And yes, evidence?

Nor is this some nightmarish nouveau experiment at GW, as I learned that quite a few law schools no longer require every student to take evidence.  How, I wondered, can any lawyer function without a working knowledge of relevance and materiality, hearsay, admissibility?

No matter what area of law one practices, it all eventually funnels into litigation when a dispute arises.  After all, what’s a written contract but a writing designed to spell out the terms of an agreement so that the respective rights and obligations of the parties can be determined by a court if there is a subsequent breach.  Otherwise, a handshake would be all we ever need to make a deal.  They are constructed with the appreciation of how one would prove their position in litigation based on, wait for it, evidence!

I was so disgusted at the notion that evidence was an elective that I twitted about it.  A response came that led me to understand the workings of a young lawyer’s mind.

This may not seem like much, but it’s the closest means available to get into the head of a law student.  And I wish I hadn’t.  The response, which apparently was not only obvious to its author, but so fundamentally sensible that it requires none of the usual explanatory details that young lawyer feel compelled to tell old guys because we’re so feeble-minded that we can’t grasp their lightning fast intelligence.

Is this really the limited understanding that new lawyers have of their profession?  Can they possible think so small and grasp so little?

The teaching of evidence in law school is not in anticipation of someone being a litigator.  Granted, it is absolutely required for a litigator, and especially for a trial lawyer, but that’s not where it ends.  Knowledge and understanding of evidence is a core competency for every niche (read that clearly, every niche) in the practice of law.  Yes, M&A.  Even real estate closings and wills. Multinational contracts. You name it, you still need to know evidence.  Why? Because every aspect of law entails a potential of dispute leading to litigation.  Any lawyer who doesn’t comprehend evidence cannot competently perform his function.

If nothing else, the concepts of relevance and materiality are basic to thinking like a lawyer.  If you don’t get them, you can’t think. You can’t reason. You can’t understand things the way a lawyer must.

But on a more practical level, the law student picks his elective courses in law school based upon his desire to practice a particular area of law when he grows up. This assumes his choices aren’t based on what courses are given in the morning, or don’t meet on Fridays. Let’s think the best of law students.  Let’s play out a scenario:

Law Student: I want to be an M&A lawyer, ’cause that’s where the big bucks are. I never plan to see the inside of deposition room where those nasty litigators are, and I will never, ever, walk into a courtroom.  So there’s no reason to take evidence.

Law student does well, top grades and law review, and graduates in 2009.  His diploma says Juris Doctor, with no mention of M&A. He passes the bar and his license says Attorney and Counselor at Law.  He sits in his parents’ basement waiting for that letter congratulating him on making $160,000 a year, and waits. And waits.

A year later, he’s run out of Cheetos and has mastered Mortal Kombat. His mother tells him he can’t sit there forever and must do something, so he goes to Solo Practice University where he’s taught how to market himself as a corporate litigation expert by fudging a website and claiming to be experienced, aggressive and caring even though the totality of his experience was sitting in the basement reviewing documents during a summer internship.

Things don’t always work out the way law students anticipate.  When they don’t, the law student, now lawyer, who “specialized” in school to the exclusion of core subjects lacks the core competency to be a lawyer, to engage in any aspect of law other than the one they desired as a law student.  Three years of working toward being an M&A lawyer, but they aren’t competent to be a lawyer. It’s a disaster, for them as well as anyone who might make the unfortunate choice of retaining or hiring them. They lack basic lawyering skills.

Tweak the scenario a bit, where the student finds that M&A is terminally boring, but IP law is thrilling and hot.  But he doesn’t know evidence, and is incompetent to represent anyone.  Tweak it again, where the student becomes the M&A lawyer of his dreams, but a pal says to him, “say, you’re a lawyer, I have this situation . . . ” and the lawyer can’t provide a basic intelligent response, of the sort that any first year lawyer should be able to provide, because he never took evidence.

Is it conceivable that one might manage to muddle through an entire legal career without ever needing to know evidence?  I don’t believe so, since it’s part of the ability to think like a lawyer, but it’s possible.  Compare the likelihood, however, with the likelihood that he will need a basic working knowledge of evidence throughout his career, to practice his profession, to be capable of spreading out within his profession, to not be so removed from the basic knowledge of his profession that he can’t competently answer something as simple as a cocktail party question.

Dean, how did you let this happen that evidence is not part of your mandatory curriculum? What are you unleashing on society?  No person should ever graduate law school without having taken evidence. No one.

In my effort to restrain the number of posts on law school issues, I combine two otherwise largely unrelated posts because I’ve come up with a somewhat cute title that makes them seem almost connected. 

At Inside the Law School Scam, Paul Campos channels Orwell by addressing the delicate nature of intellectual discourse.

One thing that has displeased a number of my colleagues throughout the legal academy is what they consider the excessively shrill tone of some of my posts, which have lacked that delicacy and circumspection that marks a well-bred gentleman’s discourse, whenever he engages in the unpleasant task of suggesting that all might not be for the best in this the best of all possible worlds. 

Law in general and law school in particular is already too full of fake politeness, fear-induced groveling, craven appeasement of dubious authority figures, unappetizing obsessions with hierarchical status, and other forms of soul-crushing inauthenticity.  Like minor aristocrats surrounded by court flatterers, we’ve lost sight of the deep anger — and is it not a just anger? — hidden behind the faces of those who, for the moment, feel they must still curry our favor.

Randazza was one of the original participants in the discussion about Danielle Citron’s Cyber Civil Rights, the online symposium that brought about some great, and some less than great, discussion on her controversial proposition that by turning cyberbullying into a sexist thing, it would justify suppression of free speech and anonymity.  Yet Randazza was excluded as a “symposiast”.  Worse still, when a crack developed in the closed circle of “open-source academics” and Randazza had a chance to get a word in, he was either ignored or berated by other lawprofs. 

Though I think the law school demand side is a very important component of this story, the question in the title of this post is meant to urge discussion of the law school supply side.  In particular, I would like to hear view from anyone inside or outside the law school marketplace as to whether law schools ought to be, in light of modern labor realities, significantly reduce the sizes of their graduating classes either by letting in many fewer students or failing out many more students before these students accumulate huge law school debts.

While Doug alerts us that he has an “innovative solution” which he intends to reveal after the rest of us have made fools of ourselves by answering his question, I will play my part and offer my two cents.

Both. But for different reasons.  Reducing the size of law school classes to reduce the supply of lawyers in a society that can no longer absorb them may be “dream crushing” to some, but beats being “debt crushing” to many, as well as critical to maintaining a society that doesn’t have a lawyer per capita.  Too many lawyers, un- and underemployed, as well as underutilized, are the devil’s playground.  Since it’s not about the dreams of wannabe lawyers, but the harm we wreak on society when we have nothing to keep our hands occupied day after day, the need to reduce the butts in seats is manifest.

And yet, even those who score well enough on the LSATs and have plenty of As on their transcripts may not prove to have the chops to be lawyers.  When I went to law school, the dean would give that great speech where he told us to look to our right, look to our left, that one of us would not be graduating.  Not every kid who gets into law school has the capacity to be a lawyer. Not every student will prove client safe.

We, meaning the public as well as more experienced lawyers, expect law schools to vet their students, to thin the herd, so that people who would make extraordinary interior designers but awful lawyers don’t get spit out the other end.  My understanding, sadly, is that as long as they pay tuition, never a problem as long as student debt can be assumed, they get to remain in law school.

Part of the obligation of law schools, and law profs, is to make sure that the students from whom they take money, and the students to whom they given the imprimatur of competency, has the ability to one day make a competent lawyer.  Not everyone does.  And yet they get their degree just like everyone else in their class.

Do your job. Thin the herd.  Do it for the children.  Do it for everyone.

While other locales like Houston have chosen to shut down red light cameras, radical mayor Michael Bloomberg has chosen to play contrarian and  expand their use in New York City.

In keeping with that very modern desire to find complex solutions to problems that don’t exist, New York City mayor Michael Bloomberg expressed his desire on Monday to put cameras on “every corner of the city” to enforce observance of red lights and, eventually perhaps, speed limits.

At least a dozen cities and 9 states have banned traffic cameras, according to AP, which reports that opposition cameras is based partly on fiscal reasons (they can be money losers) and politics (voters are no fans of them.)

But opponents have also pulled out their trusty Constitutions, contending that red-light cameras violate due process rights and constitute an invasion of privacy, AP reports.

But New York City doesn’t learn from others.

“I think we should have ’em on every corner if we could,” the mayor said of the controversial cameras that trigger tickets to drivers caught running red lights.

“If people didn’t go through red lights, you’d save a lot of lives of elderly and kids,” Hizzoner told reporters Monday during a press conference.

True that people running red lights can be a problem, though saving “a lot” of people is bit of unjustified hyperbole since not “a lot” of people get run down without them. But even a billionaire mayor can take the logic one step farther, considering whether red light cameras stop people from running red lights. But is that really what’s on Bloomberg’s mind?

Bloomberg was responding to a Daily News report on the $52 million in fines the city issued last year to drivers caught by cameras – really a $55 million haul with penalties included.

One thing billionaires understand is money, and New York, like every other city, could use the money.  Missing from Bloomberg’s pitch is any recognition of the constitutional issues at risk.

In 2007, the Minnesota Supreme Court struck down Minneapolis’ traffic camera program, concluding that it improperly presumed that the owners of vehicles were the ones caught on camera violating the law.

This National Review Online editorial today also argues that traffic cameras improperly presume guilt.

“There are certain questions that are germane to establishing the severity of an offense: Was the accused keeping up with traffic? Were the roads wet? Was the speeder reacting to a dangerous or reckless driver?” the piece states. “Machines cannot answer these questions, only people can.”

The argument, that it’s only money, maybe meaningless to Bloomberg, but isn’t necessarily so easily ignored by those who end up receiving the bill for something they may have had nothing to do with, or something that was lawfully justified but for which there is no opportunity to challenge.

Whether the red light camera is a step on the slippery slope of cash and carry criminal collections, or merely a one-off means of circumventing proof and constitutional protections in an effort to use technology to maybe cut down traffic violators and fill a city’s coffers, it’s fraught with flaws,  Aside from the technical, the cost of operating and maintaining, the counterintuitive safety problems and the potential that they will cost more money than they will take in (as if all this isn’t enough), the price of constitutional rights can’t be so easily measured by a fine.

To add insult to injury, Bloomberg isn’t satisfied just collecting the lucre from the evil red light runners, but wants to use it as a weapon as well:

The mayor mused that the city could put up the cameras – then try to embarrass the rule-breakers.

“Maybe what we should do is do it and start publishing in the paper who does it and then a list of the senators and assemblymen who keep us from having cameras \[that can levy fines\],” the mayor suggested.

A double-edged weapon, where he can not only humiliate the violators (remember, there is no due process, so they’re presume guilty from the outset), but humiliate lawmakers who, unlike Bloomberg, have a passing familiarity with the Constitution on the basic premise that the public can grasp a baby run down by a car easier than a constitutional right run down by a mayor.

A picture is worth a thousand words.  It may be worth a thousand bucks as well if Bloomberg has his way.  What are the chances Albany won’t give him the green light for this misguided plan? 

When the  New York Times editorial decried the “justice gap,” my reaction was that they seemed all too happy to experiment at risk to the poor:

Most low-income Americans cannot afford a lawyer to defend their legal interests, no matter how urgent the issue. Unless they are in a criminal case, most have no access to help from government-financed lawyers either.

Another step is to allow nonlawyers into the mix. The American Bar Association has insisted that only lawyers can provide legal services, but there are many things nonlawyers should be able to handle, like processing uncontested divorces.

Is the difficulty for ordinary people to obtain access to a lawyer a serious problem?  You bet it is.  It’s also a problem for ordinary people to obtain access to high quality diamonds or exotic automobiles, but access to legal help is a necessity for the normal functioning of an ordinary person in society.  Wills, divorces, house closings and basic civil litigation are part of the basic functioning of society.  We’ve made society legal-dependent, and so legal counsel and representation has become a need rather than a luxury.

But why the Menckian solution?

It’s not just the Times.  It’s the Wall Street Journal.  And if that’s not enough to fill the bed, even Tim Lynch at Cato has jumped under the covers.

From a Cato paper : “Every state . . . prohibits the unauthorized practice of law (UPL); a person must possess an attorney’s license to hold himself out as a lawyer. UPL prohibitions restrict the right to pursue a legitimate occupation and the right to contract with others. By imposing a costly barrier to entry, they distort the market for legal services. Consequently, consumers face higher prices and fewer choices.”

It’s unanimous.  Get going state lawmakers—deregulate the legal profession.

Without getting too hung up on Tim’s calling a profession “a legitimate occupation,” that costly barrier to entry is an education.  Granted, it may not be quite the education that lawyers think it should be, but consider the alternative.

Would we want anyone but a qualified electrician to juice up our homes?  We want our brain surgeon to know the frontal lobe from the medulla oblongata.  There are some things that require a bit of knowledge to do.  Law is one of those things.

Neither the Times, the WSJ, Brookings or Cato buy it.  One view is that what lawyers do just isn’t that hard, and therefore anybody can do it.  Granted, some of the functions are pretty routine, though it’s not necessarily routine to know whether the routine is appropriate or sufficient to meet a person’s needs.  Even then, however, it’s remarkably easy to screw up even the simplest of legal documents. 

The simple will, for example, which, assuming it satisfies the needs and desires of the testator, can be prepared from a fill-in-the-blanks form.  Whether it’s the correct vehicle for a fellow requires a judgment call, of course, but once past that decision, the blanks themselves are fairly self-explanatory.  But does the guy who bought the $19.95 will know that he can’t cross out his brother’s name when he has a falling out and fill in his sister’s?  Does he realize that his executor may have to locate the witnesses some day to prove the will, when he pulled a couple folks off the street to complete the execution?  Of when he rips the will in half to show his kids what could happen if they continue to piss him off, does he realize that he can’t tape it back together?

Why not let anybody who wants to open a storefront, Wills-R-Us, do so?  Because the nice people who walk in the door will have no assurance that the people at the desk have a clue what they’re doing.

Which leads us to the subtext in this debate.  The forces for deregulation don’t think lawyers know what they’re doing either.  Sure, we go to law school for three years, but nobody (with any credibility) contends that law school produces client-safe lawyers.  And every person who has ever had the misfortune of having to find a lawyer has a story about the blithering idiots they came across in the process.

Here’s a bit of harsh truth:  There are far too many people with licenses to practice law who are kinda dumb.  We used to be a learned profession.  Now, we’re a guild with some better, some worse.  Too many worse, unfortunately.

Earlier this morning, I was having an email discussion with  Eric the Turk and  Brian the Tan about a  National Law Journal article that was just awful; superficial and worthless. When the boys bemoaned the poverty of thought of the article, I bemoaned that any lawyer would read it.  If no one read it, the NLJ wouldn’t publish it.  Similarly, the Lawyerist and the “small law” columns at Above the Law are so bad that they shouldn’t possibly exist or survive, yet they do.  In fact, they’re pretty darned popular.

It would seem impossible that any reasonably intelligent lawyer would read such fluff.  And it is, and that’s the problem.

The deregulation of law isn’t the answer; the competent practice of law requires specialized knowledge that can’t be obtained or assured just by opening a storefront and taking money from unsuspecting people.  That we need to find a way to provide legal services to those who can’t afford it is beyond question, but that doesn’t mean the overly-simplistic solution is viable.

On the other hand, if the people licensed to practice law are as dumb as would appear, maybe lawyers aren’t any more competent to practice law and hold people’s lives in their hands either.  Maybe we’ve sufficiently dumbed-down the profession to the point where we aren’t doing any better than the guy who was assistant manager at Dairy Queen last week and has opened up his own law office this week.

Maybe the reason the New York Times, Wall Street Journal, Brookings and Cato think we don’t deserve the exclusive right to practice law is that we have forsaken our intellectual and educational authority to help others.  But the solution isn’t to place law in the hands of everyman, but to elevate the profession to those worthy to practice it.

As for the cost, I have an answer, but that will be another post.

In 1974, the Supreme Court held in  Geduldig v. Aiella that it was not discriminatory to refuse disability benefits to pregnant women because pregnancy was not a protected classification.  The rationale was that not all women choose to be pregnant, thus dividing the lines by pregnant persons (who are only women) against non-pregnant persons (who are men and women).  We’ve come a ways since Potter Stewart wrote that decision.

Southern District of New York Chief Judge Loretta Preska, however, wasn’t prepared to accept the notion that pregnant women are entitled under law to work/life balance.  From Vivian Chen at the Careerist :

Calling the evidence against Bloomberg “insufficient,” Preska goes to town on what she thinks is the real subtext of the lawsuit. She writes:

At bottom, the EEOC’s theory of this case is about so-called work/life balance. Absent evidence of a pattern of discriminatory conduct . . . the EEOC’s pattern or practice claim does not demonstrate a policy of discrimination at Bloomberg. It amounts to a judgment that Bloomberg, as a company policy, does not provide work/life balance.

And the law, she reminds us, “does not mandate work/life balance.” Preska essentially says that “balance” is a personal matter–not a corporate obligation.

Cue Helen Reddy, as the outrage begins.

No surprise that Preska’s opinion is upsetting a lot of women. “By Judge Preska’s logic, even the most dedicated, career-driven mother is going to be penalized for taking time away from work to have a baby,” says Michelle Gerdes in The Wall Street Journal.  “She hardly hides her contempt for women with kids who have ambition and want top-paying jobs,” Sonia Ossorio, the executive director of National Organization for Women, told The New York Times. “If you read her comments, she says that basically if a workplace culture is work 24/7, then they have a right to have that type of culture.”

Or perhaps what Judge Preska is saying is that we all make choices, whether to dedicate our lives to one thing or another.  Want to leave the office at 4:45 every day?  No problem, but then you can’t be the Master (Mistress?) of the Universe.  It’s about choice.  Bloomberg, the company, has no problem with women, and in fact has a significant number of women in powerful positions.  But it needs them to work.

In the decision, Preska quotes Jack Welch, General Electric’s legendary CEO: “There’s no such thing as work/life balance.  There are work/life choices, and you make them, and they have consequences.” A company like Bloomberg, she adds, explicitly states that it expects “all-out dedication” from its employees in return for a hefty paycheck. Thus, “making a decision that preferences family over work comes with consequences.”

This not only flies in the face of those who really, really don’t want to face consequences for their choices, but who hate the philandering Jack Welch.

And Ms. magazine says:

Did she say “Jack Welch”? Yes, he was a business icon at one time. His leadership was heralded at Harvard Business School in the early ’80s. But his rein in the world of influential ideas was then and this is now. . . . We can no longer afford to dismiss half of our human resource capital because it happens to be female and sometimes bears children . . . the Bloomberg case’s reasoning and citing of a business dinosaur reminds us that business culture still has far to develop.

Imagine if Judge Preska quoted Aristotle.  Curiously, Chen tries to back both sides of the argument.

Business culture does have a long way to go on the work/life balance front, but is Preska making the problem worse? I don’t think so. Nor do I find her unsympathetic to the plight of working mothers.

Like it or not, there’s a lot of truth to what Preska says–though it seems uncomfortably retro to admit that high performers in the business arena often lack balance in their personal lives. That’s certainly still the case in the world of big-firm practice, where time is still money.

The problem with business culture, and that includes law culture, is that it gets in the way of doing what you want.  The Slackoisie assert that their work/life balance is more important to them than achievement at the office or fulfillment of responsibility toward clients.  Fair enough, but then the consequence is that you don’t get the corner office and the hefty paycheck.  Oh, you want that too?  Now we have a problem.

There are occupations, and jobs within those occupations, which will suit any work/life balance desires, but they may not be the ones you want.  Is that unfair?  Chen says business culture has “a long way to go,” and those who find hard work on their employer’s or client’s terms unpalatable are in complete agreement.  How do we change the culture to allow for business to proceed apace while some take off from work at mid-afternoon while others take up the slack?

The argument is that women are left to not only bear the children, but care for them, rear them, nurture them, while male executives and lawyers pound their desks and make important decisions.  If the men want “little me’s” to carry out their legacy and bear their name, they have to accommodate the very demands they place on women to make this happen.  As for the top female lawyers or executives, they can either pound on desks of their own or pick up the kids at the school bus.  Somebody has to do it, and the men surely won’t.

It’s a problem.  It’s unfair that the “burden” of children falls on one gender more so than the other, and lest we live in a fantasy, that gender would be female even though there are some men who wait at the bus stop too.  The problem isn’t business culture, which is properly focused on the needs of the business rather than the wants of the burdened gender.  The problem is that business can’t function when the big money executive isn’t doing her job.

This isn’t to blame women for their choices, or to relieve society of the sense that it’s just not fair that women carry an inordinate burden for children.  But life isn’t fair, and it’s not the fault of business or law that women are expected to bear the consequences of their decisions just like everyone else.

Jessica Beagley, the Anchorage mother whose 15 minutes of fame on Dr. Phil proved less fun than expected, was convicted of child abuse.  From the AP :

A woman who squirted hot sauce into the mouth of her adopted Russian son for lying about getting in trouble in school was convicted Tuesday of misdemeanor child abuse in what prosecutors said was a ploy to get on the “Dr. Phil” TV show.

Jessica Beagley, 36, made a videotape of how she punished the boy and submitted it to the show. The tape shows Beagley yelling at the crying boy, then tipping his chin up and pouring hot sauce in his mouth.

Beagley then had the screaming boy stand in a cold shower for sword-fighting with pencils in school.

According to Beagley (and Gary, her Anchorage cop husband), they had tried more conventional methods of disciplining one of their adopted Russian twins, to no avail.  What’s a mom to do?

Let’s be clear, the use of hot sauce (not to mention cold showers filmed for later television viewing) isn’t my idea of proper child rearing.  To me, it goes way too far.  But here’s the kicker: Who cares what I think?  My sensibilities aren’t the dividing line between lawful and criminal conduct.  Neither are yours.  Or at least they shouldn’t be.

One of the fundamental requirements of a criminal statute is that it alert people to what constitutes a crime.  Parents are entitled to, indeed, supposed to, discipline their children when they do something wrong.  They can give the kid a time out, lecture them about the evils of whatever they think is evil.  Some say it’s okay to spank a child, others not.  But hot sauce will land you in jail? 

As with so many other things we each believe we possess, though others may differ, like common sense, we each have our own concept of where the line should be drawn when it comes to appropriate discipline and child abuse.  As with common sense, each of us is certain that we’re right, though everyone else disagrees (because they too are certain that they’re right).  So there’s a bright line, but it’s different for everyone.  Not much help.

For most people who hear about Beagley’s punishment, it’s a matter of religion that she’s on one side of the line or the other.  What people don’t recognize is that they are merely judging based on their own sensibilities.  Some people won’t wear white after labor day, while others think it’s a ridiculous rule.  Of course, harming a child isn’t comparable to wearing white, but the rationale is similar: It’s just what we believe to be right.

Historically, we were a tough nation when it came to disciplining children.  “Spare the rod and spoil the child,” was once the rule of thumb, but few of us have a woodshed out back anymore.  Instead, we ponder whether to deny them the Gameboy, leaving them only with the X-box to keep them occupied.  The Puritans shudder at our weakness.

It’s not to advocate more severe punishments, but rather to question where the authority of parents to decide how to punish a child gives way to criminal conduct.  That Beagley tried lesser punishments without success, leading to increasingly harsh punishments, isn’t that unusual.  Some parents find themselves with recalcitrant children, and they are at a loss for how to control them and, hopefully, teach them how to behave.  We expect parents to do this, and their failure to teach their children well is a failure of parenting.

Certainly, conduct that causes real or permanent physical harm to a child, or anyone for that matter, exceeds the bounds of lawful conduct.  While hot sauce may be a painful punishment, does it rise to the level of serious harm that demands sanction?  It seems to be that a good whipping with a switch caused an awful lot of pain as well, not to mention the potential of permanent scarring.  And yet this was a standard punishment in this country for centuries.

I don’t know where the line should be drawn.  And that seems to be the problem, since without knowing, it’s impossible to limit one’s conduct so that we don’t cross the line.  And that’s what distinguishes criminal conduct from merely going too far.