Oral argument on two cases that held potentially huge significance for a fundamental change in search and seizure law were held before the Supreme Court on October 30th.  Via Radley Balko at HuffPo :

In the first case, Florida v. Jardines, the court will decide whether a drug dog’s sniff outside the door of a home constitutes a “search” under the Fourth Amendment, which police would need to justify by first establishing probable cause. If the justices decide it doesn’t, police could well begin using drug dogs to conduct mass “sniff sweeps” of apartment complexes, public housing, and other densely populated areas.

In the second case, Florida v. Harris, the Court will consider a Florida Supreme Court decision that established some rules for judges to determine whether a particular drug dog should be relied upon as grounds for a search. Here, the justices could either uphold a state supreme court’s desire to set some minimum proficiency standards, or rule that the police and prosecutors aren’t obligated to keep track of a drug dog’s performance record at all.

That assumption was wrong at the time, and it has been repeatedly proven wrong since. For example, in a survey of drug dogs used by police departments in suburban Chicago published last year, the Chicago Tribune found that when a police dog alerted to the presence of drugs during a traffic stop, a subsequent search turned up narcotics just 44 percent of the time. In stops involving Hispanic drivers, the dogs’ success rate dropped to 27 percent.

The  Lisa Lit study at Cal-Davis is far more damning. Dog sniffs are essentially carte-blanche for dog handlers to pick targets for searches, completely circumventing what most would consider actual cause, with the blessing of the Supremes in reliance on the magical abilities of canines.  As Radley notes, it’s not that dogs aren’t possessed of wondrous olfactory abilities, but that they are more inclined to do as their handlers want. 

Radley attributes this blindness on the bench to its lack of anyone who earned an honest living as a criminal defense lawyer.  While he may be right, insofar as there is no one inclined to mention the unmentionable at argument or even make the others upset with her by throwing the dog sniff myth into play, I suspect that the justices are bright enough to be aware of the problems with dog hits. 

The tacit decision evidenced by the total absence of concern for a means of establishing probable cause that is less valid than a coin toss (question: why not just let cops do rock, paper, scissors to establish probable cause? Crazy, sure, but less so than dog sniffs) is that law enforcement and the courts have incorporated the dog sniff myth so deeply into their infrastructure and jurisprudence that it would wreak havoc to admit it is all a big ol’ sham now, and hold that the magical eight ball dog alerts are no longer an adequate basis, without so much as a valid showing of training (as determined by a non-law enforcement certifying body using non-law enforcement derived metrics) and efficacy (such as, well, a mere 50% success rate).

This would spell the end of dogs, and that would spell the death of highway shoulder searches, and that would mean that police would be required to fall back on actual, articulable, specific cause. 

To be fair, if the dogs are manipulated by their handlers to alert whenever they feel the desire to conduct a search, there is no reason to believe that police would be less inclined to fudge the details of cause coming from their own observations, whether their old friend, furtive gestures or anxiety, or aggressive stance, or perhaps some newly developed combination of words that gives rise to a vague image of justification without any possibility of disputing the cop’s word.

Still, at least we can cross-examine a cop.  When the only question to be asked is whether the doggy wagged his tail, that detail being sufficient to terminate all rights under the Fourth Amendment, without regard to the fact that the doggy wags his tail constantly, at anything, whenever his beloved handler cues him to do so, even unconsciously, we’re just pretending.

Oral argument in two cases before the Supreme Court was had in earnest, but the argument was about the details on the fringes of the Ministry of Magic.  The dogs will be with us for a long time to come, and they control whether eyes and hands get to touch our lives.

About 4:30 p.m. on election day, November 6th, the lights came back on at Simple Justice World Headquarters.  The ambient room temperature went from a nippy 37º to a balmy 54º in just a few hours, after which we peeled off layers of warm clothing.  The television glowed and we stayed up late enough to watch Karl Rove embarrass himself. 

I didn’t learn that the president was re-elected until this morning.  As far as I can tell, there is a direct correlation between this and my power returning. He owes me. 

More importantly, I hear that Mark Bennett received more than one million 1,326,526 votes for seat seven on the Texas Court of Criminal Appeals. Even substracting my votes, that’s over 479 thousand an awful lot of votes, and that’s huge. Congratulations, brother. Killer Keller was re-elected to the all-Republican court. Sorry, Texas, but you get what you deserve.

It felt nearly miraculous to feel normal.  We checked on our friends to make sure they have power and heat (they did), and started thinking about what was needed for the clean-up, whether FEMA disaster relief would be available to us (don’t feel badly; we laughed too) or whether insurance or any other source would cover damage or loss.  It isn’t likely.

Already, the vultures are coming around looking to do post-Sandy repairs and clean-up at a mere triple the price of their services before the storm, when they were begging for work. While many have proven themselves to be good neighbors and friends during the storm, there are some nice folks on Long Island who just can’t resist the urge to take advantage of others.  No surprise there.

There was no ability to do work over the past 8 days, and so there is substantial catch-up to be done. A nor’easter is supposed to hit tonight, and I’m scheduled to fly out of town on Thursday. We’ll see whether that happens.

Thank you for your kind words and wishes during the past week. It certainly brought warmth to an otherwise very cold existence.  Now that the heat is on, I’m determined to return to as much normalcy as the situation permits, and plan to get back to writing about things that matter.  But please know how much I appreciate the support.

It’s enormously frustrating for a guy whose life has been dedicated to fighting for things to have no one to fight with. My family suffers and there is no argument to be had. It’s utter impotence, and it’s brutal.

You can’t argue with a storm. You can’t argue with a dark light. You can’t argue wth guys on power trucks about why they drive down the road past your home to work on someone else’s road. And you can’t argue with people whose power has returned and are trying to get their own lives back to relative normal. But that means you stand there, silently, incapable of changing anything and feeling helpless. This is a foreign feeling.

The crank radio reports that many have gotten their power back, using numbers that reflect “customers.” This is a bit of sleight of hand, as “customer” refers to the name on the bill.  The rest of the people living there don’t exist. So if they say there are still 1.7 million customers without power ten days after the storm, multiply that number by the average household, maybe 2.4, and that reflects the number of cold people. Multiply it by two to get the number of cold hands. The temperature this mornng was in the upper 30s.

The radio offers either nasty and absurdly ridiculous poltical commercials or commercials of insurance companies and service providings who can help those who have suffered damage. They tell us to call their toll free number, or go online. Except we have no electricity, telephone or internet. But they care about us very deeply.

Press conferences by public officials fill the dead time between commercials. Each begins with 20 minutes of thanking each of other for their great work, and their apprecation of people whose job it is to do whatever they are doing. So they are getting paid and getting appreciation. It must be great to be a public official in a crisis.

Donations to American Red Cross are, as with past disasters, plentiful. The problem is that the American Red Cross takes in the money and doesn’t use it for the purpose given. For all those ten dollar text donations, maybe a dollar or two is used for the crisis, with a few dollars going toward administrative fees, salary increases for their full time staff, new office furniture. The rest disappears. This happened after 9/11, Haiti, and every other major disaster. No one ever wonders where the money went after the noise dies down, but it never seems to find its way to its intended recipients.

On Imus this morning, he talked about how he went to Staten Island, and the Red Cross was nowhere to be found.  And yet, donations pour in.  Regardless, there will be nothing, whether Red Cross, FEMA or state aid, available for those whose suffering won’t make a photo op. There never is.  At least they may offer a cot and peanut butter and jelly sandwich to the homeless, like prison. For every $10,000 contributed to the Red Cross, another sandwich is offered. Kinda makes you feel all warm and good about yourelf, right?

The endless flow of guest-post requests, LinkedIn requests, Nigerian scams and legal marketing solicitations never seems to cease. Apparently, there is no loss of power in Bangalore.  The readers who send me 37 links for possible posts daily, especiallng the ones about these horrific conspiracies where our government plans to feed us to aliens from Mars, continue unabated. They too never seem to lose power, or the hope that  I will embrace their conspiracies in the few moments of internet access alotted to me.

No matter how well one prepares for problems, there are unanticipated needs that remain unmet. Clean clothing, for example.  The washing machine doesn’t work without power, no matter how hard you stare at it.  Some folks probably have enough clothing to last a few weeks without washing. I do not. Crisp, starched collars are a distant memory now.

And towels don’t dry in the cold. They stay damp, and get even colder. Cold, damp towels are remarkably unpleasant to use.  Take my word on this.  After a cold shower, or even a warm sponge bath, a dry towel would feel good.

We now see power company trucks fairly regularly, but they just keep driving past and out of view. They must be helping someone more important. 

In my spare moments, I try to keep abreast of the blawgosphere. There is no shortage of stories of interest and importance, and I’m glad others out there are keeping the information and commentary flowing, even if I can’t or won’t.  Maslow’s Hierarchy has kicked in on my end, so staying warm takes precedence over the latest puppycide. And somebody says there is a presidential election coming soon. 

Don’t give to the Red Cross. Be charitable, if that’s your way, but they don’t need new office furniture, and Haiti remains a shambles despite the billions Red Cross took in. Because they just keep the money.

It’s been a long week.  After Sandy disappeared, having done its damage, there was resignation. There is no arguing with a storm or its aftermath. It just is. And so, the first reaction is to try to make the best of it, or at least not make it any worse.

As no one was harmed and no serious damage was done to any structure, SJ World Headquarters fared pretty well. Others certainly suffered far worse.  A walk around revealed 11 trees down, only one of which landed on anything that mattered. 

One tree fell on the utility wires in the woods from the street to the house, and since I had plenty of time and a hand saw, it seemed wise to disregard Dr. SJ’s admonition to stay away from the wires and just cut the tree down.  It took quite a while to cut a tree with a small handsaw, but it can be done.  And it was.

Life without utilities is odd.  There is a lot of dead time. After cutting down the tree, we cleaned the inside of the house within an inch of its life. Vacuuming wasn’t possible, but anything that required hand-rubbing could be done. And it was.

And then there was nothing. Warm water in the tank lasted about a day, and then was gone. The weather outside was cold, and eventually the house was too. Except the KitchenAid refrigerator. We avoided going in for a couple of days, but inevitably had to get to food.  To the extent it held the cold, that was the end of it.  We tried to get in and out quickly, but cold rushing out is faster than we were.

After four days, listening to a handcrank radio purchased because of the frequent day-long loss of electricity, the pioneer spirit turned angry. Going to sleep at 8 p.m.was wearing thin, but there wasn’t anything else to do.  A library about 15 minutes away was open, and had electricity and wifi, but its bandwidth was so badly overwhelmed by people trying to get online as to give a user a few minutes at best. I went there from day three to five, but spend hours trying to get a page loaded. 

Mostly, my time online was used to try to read emails, each of which would take a few minutes to load. It gave me a new appreciation of guest-post requests from spammers, LinkedIn requests from people I don’t know, Nigerian scams, legal marketing solicitations, and friends who asked if I was alive. Then there were the questions from young lawyers about mundane choices they faced, knowing I had no power but still in need of free advice on trivial matters of utterly no consequence.

On Friday, we decided to get out of town. We planned to go to Massachusetts on Saturday anyway, but decided to jump in the car and find a hotel somewhere north.  There was no gas to be had in the area. Food staples, like milk, were gone. The house was very cold and I had enough of the joys of cold showers.

No doubt there was relief being made available to those who lost their homes, In my area, there was nothing.  We saw the occasional power company truck, but it didn’t stop as it drove to some other place in need.  The neighbors who had generators found out that they don’t run forever without gas, and that residential grade generators weren’t meant to run for days on end. They either ran out of fuel or just died.

So we drove north.  Eventually, we found a motel with a room, as many along the way were booked up with out of state electric workers and national guard being sent to New York to help.  It wasn’t nice, but it had hot water and internet. It worked. This is the third day of having real internet access, but up until now, I haven’t felt much like writing.

Yesterday, we went to our son’s first NCAA fencing competition, the Big One at Smith College, where all the schools in the Northeast Fencing Conference competed n regular tournament format.  Out of a field of 89 fencing epees, he came in tied for third.  In his quarterfinal bout, he was down 10-14 (bouts go to 15), and he pulled it back, winning 15-14. The knot in my stomach didn’t go away for an hour.

And so, it was a pretty good week.  We’re all safe, even if miserable. My son did well.  Life goes on.  We’re heading back home today, even though there is still no power.  There is no reliable information as to when power will return, and it’s painful to listen to everyone praising themselves knowing we’re returning to a dark, cold house. 

There will be substantial costs associated with the storm, but as with 9/11 and Hurricane Irene, all the promises, along with the donations, disappear, never to be seen near my neighborhood.  As always, we will be on our own, and will try to find a way not to make the next day, maybe week, without power any more miserable than it has to be.

The weather report is that it’s going to get colder and there’s a nor’easter comng to knock down whatever electric lines are still up. I don’t expect to feel like writing for a while.

Passing through Laramie, wyoming, Supreme Court associate justice Antonin Scalia gave a talk at the local law school, where he answered a few student generated questions.  Nino answered one question, what was the best piece of advice he could give law students:

In response to Wallace’s question about the single best piece of advice Scalia would give to law students, he advised them not to waste their time taking “frill courses.”

“Professors like certain subjects that they’re writing a book on, so they teach a course in that subject,” he said, adding that students who take the course get to do the research for the book.

“Because there are so many professors teaching their hobbies, the rudimentary courses are not taught with the frequency necessary for everybody to take them,” Scalia said.

“The only time you’re going to have an opportunity to study a whole area of the law systematically is in law school,” Scalia said. “You should not waste that opportunity. Take the bread and butter courses. Do not take, `law and women,’ do not take `law and poverty,’ do not take `law and anything,'” he said.

Had he used “Nietzsche and the Law” as an example, it probably wouldn’t have rankled anyone too badly, but Nino pushed a button that set off a firestorm.  Law and women?  Law and poverty? Both women and the poor took umbrage, neither being a particular fan base for Justice Scalia.  And here he was, saying they weren’t worthy. Oh boy.

But the group he slapped hardest was law professors, when he said that “there are so many professors teaching their hobbies.” George Washington Lawprof  Jonathan Turley did not take kindly to the slap.

That is a disturbing account to give students and serves only to “dumb-down” legal studies. My students will be better lawyers but not only learning about the practice but the philosophy of law. It is both possible and, in my view, essential to get both in your training. I am distinctly proud of my student’s in their ability to move seamlessly from the theoretical to the doctrinal in class.

I am disappointed in the recent controversial comments by Scalia because he reflects a deep understanding of legal theory and history in his writings. His opinions are greatly benefited by that deeper knowledge. Student gain such theoretical foundation by taking these seminars, which often inspire or challenge the view of law students. Lawyers are not accountants who merely tally columns of precedent. They are part of an organic and ever-changing field. The current laws are changed by the powerful legal theories and policies that constantly move beneath the legal superstructure.

Turley’s rhetorical flourishes aside, his disappointment doesn’t address the problem.  Within the Law and Potted Plants course, there may be contracts, or property, or even criminal law (it could happen), There is no independent body of law that relates solely to potted plants, divorced from the more rudimentary practice areas.  If by theory he means the latest law review article on the subject, advocating for a separation of the law of potted plants from those planted in the ground, then it’s hard to ignore Nino’s “hobbies” argument. There are a ton of theories promoted by scholars, most of which pass quietly through the night, never to be heard of again, and for which we are generally grateful.

But then, there is the problem of cost/benefit analysis.  Law students pay a hefty price to learn the law of potted plants. Some do so in the hope of becoming a potted plant lawyer one day. Others just need to flesh out their schedule because they’re still required to do a third year of law school regardless of its merit.

I don’t disagree with Jonathan’s belief that teaching theory as well as doctrine matters. It’s the same problem as “remembering the rubric while forgetting the rationale” that I often raise when arguing that an application of “black letter” law makes no sense, as it becomes increasingly distant from its birth.  The only way to change the law, to make it serve society better as things develop and change, is to appreciate the theory behind it that justified its inception, and thus be capable of arguing why that justification no longer serves our interest.

But it’s not all clear that Nino thinks any differently, even though he tweaked some of our more passionate people in his choice of examples.  Theory, doctrine and practice can all be taught simultaneously in more rudimentary law courses, and for those scholars who so desperately want to push their personal hobbies, examples of law and women abound in discussions of property law and contracts.  There are no shortage of pet peeve opportunities.

Rather, what doctrinal and practical instruction is offered by the “Law and …” courses? Recently, I’ve seen lawyers claim to do hail damage law and even flash mob law.  These don’t’ exist. Stringing words together doesn’t make them real, and they are just minor variations on other extant practice areas.  They’re cute gimmicks, but nothing more.

It’s not at all clear that there is any real difference between Nino and Jonathan’s perspectives, aside from the fact that Nino would shut down a few teaching opportunities, which would mean smaller faculty parties.  Nino didn’t say that law schools shouldn’t touch upon theory, but that they should not have “law and” courses that embody hobbies that don’t reflect actual areas of law. 

Rather, I think Nino just pushed Jonathan’s button.  And a little button pushing from time to time isn’t a bad thing.

John Allen, 64, a retired engineer in California, writes a blog called The Skeptical Juror. With the help of Barbara Lunsford, an accountant in Corpus Christi, and Ward Larkin, an activist from Houston, he has spent nine months and more than 100,000 words delving into the forensic and legal details of Mr. Hughes’s case.

The official facts of the crime, on their face, pointed directly to Mr. Hughes. On the night of Sept. 26, 1988, Shandra Charles, 15, and her cousin Marcell Taylor, 3, were fatally stabbed in a Houston field. A police sergeant reported that before she died, Ms. Charles identified the name “Preston” and said, “He tried to rape me.”

Detectives located Mr. Hughes in a nearby apartment complex. Investigators found evidence of blood on his clothing and a knife in his apartment, as well as Ms. Charles’s eyeglasses on his couch. Mr. Hughes, who said the glasses were planted, confessed to the murder during the investigation but then denied involvement during the trial. No biological evidence tied him directly to the crime.

Hughes has a lawyer, Patrick McCann. He wants to get rid of McCann and get a new lawyer because McCann won’t raise Hughes’ claim of actual innocence.  McCann demurs.

Mr. McCann says he cannot comment on why he will not pursue these claims, which were not introduced in Mr. Hughes’s original trial. But Texas and federal law set a high burden of proof for new claims of “actual innocence” so late in the judicial process, a bar that Mr. McCann said was “almost impossible” to meet.

The assumption tends to be that the lawyer must be some incompetent buffoon, mailing it in for the skimpy state paycheck, which he will spend on booze, after which he’ll sleep it off in court. But what if McCann is a top notch lawyer, doing everything he can within the bounds of the law to save his client’s life?

The issue of advocates’ doubting the work of lawyers is common in death penalty cases, especially as an execution date nears.

“Once the lawyers do the spadework, a lot of people want to come in,” said Jeff Blackburn, a lawyer who runs the Innocence Project of Texas, “and they don’t understand that we’re limited with the art of the possible here.” He called Mr. McCann a “great lawyer.”

Murray Newman, a Houston defense lawyer, said he believed Mr. McCann was doing his best and cared about Mr. Hughes. “He works so hard on these cases. It’s like losing a family member,” Mr. Newman said.

Hughes isn’t as fond of his lawyer.

From death row, Mr. Hughes sees it differently, as he plays basketball during his hour of recreation every day, eats food he calls “pitiful” and learns about court decisions from a small, black radio.

“We don’t like each other,” he said of Mr. McCann. “I don’t feel somebody who doesn’t like me is going to do anything for me.”

A loss of confidence often follows a lawyer’s inability to achieve his client’s goal, followed by fighting, arguing and accusations, which gives rise to personal animosity.  For defendants and advocates, this seems critically important.  For lawyers, not so much.

In the simplistic good/evil dichotomy that most outsiders see the criminal justice system, defendants and advocates tend to wish away the problems and see only their point of view.  Passionate lawyers tend to do something similar, conflating an excess of zeal with effectiveness.  We see a lot of this in the blawgosphere and on non-lawyer blogs and websites, where the police and prosecutors are always nefarious liars, judges always hateful morons and defense lawyers incompetent, greedy scum.  It explains everything.

But for a lawyer like McCann, his duty doesn’t require him to love his client.  It requires him to represent him, and to do everything within his power, and within the bounds of the law, to save him from death. 

Lawyers work under constraints that advocates may not, such as the rules of evidence and the legal tests for setting forth and prevailing on a claim.  Advocates can argue, and often do, that these rules that fly in the face of what they believe to be justice are stupid and damaging. They are sometimes right, even though they lack the background in how these rules and tests came to be, or how they can be used as shield as well as sword.  But yes, when they stand in the way of perceived justice, they always look stupid.

Still, they are the boundaries within which the lawyer works if he hopes to achieve success.  As many beefs as we may have with the functioning of the system, it remains the system. Ignoring it helps no one. Sometimes, we can fight it and hope to have that one in a million case that forces a major shift in the system. Other times, we can scream as loud as we can, or as long as we can, and will accomplish nothing.

Patrick McCann is doing what lawyers do, fighting the pending execution of Preston Hughes. Advocates don’t think he’s doing enough. Hughes wants a new lawyer who will fight the fight he wants to make.  And McCann, getting little love from anyone, just does what lawyers do.

If McCann fails to stop Hughes’ execution, someone will blame him for being complicit in the death of his client because of his refusal to argue and win what advocates believe to be true, that Hughes is innocent.  And if he did argue it, despite his having no chance of success and doing everything in his power to challenge the execution on grounds that have at least the potential to succeed, advocates would speak better of McCann as they stand around Hughes’ grave. 

This is not to condemn advocates, or defendants, for feeling as they do. This division doesn’t always exist, and they can’t be faulted for believing as they do.  But McCann is a lawyer, and he has a duty that isn’t controlled by pandering to those who would have him argue what makes them feel good.  And he has persisted in fighting for Hughes, as his lawyer, despite the fact that neither his clients nor those advocates supporting his client have any kind words for his efforts.

When I sat on a planning board, I listened carefully to engineers speak of 20 year, 50 year and 100 year storms, the worst case scenarios that ought to guide our decisions as to the adequacy of sites and structures to accommodate impending disaster.  Obviously, 20 year storms happened with greater regularity than 100 year storms, so the demands of a 20 year storm had to be met.

But they say Frankenstorm is a 100 year event, the big one.  Sitting in Simple Justice World Headquarters, I’m wondering what I should do about it. There has been nothing on the television news except storm reporting, even though there is no storm here yet to report about. It’s been days, pre-empting the existence of any other news. Other than the Giants win over Dallas and reruns of Real Housewives of Somewhere, every station is obsessed with reporters getting their hair blown.  The engineers never mentioned the role of the media in 100 year storms, and whether there was anything to be done about it.

For the moment, there is a breeze outside. It’s expected to pick up later in the day, eventually reaching minor hurricane proportions, which are more than the mid-Atlantic coast states were designed to withstand.  No doubt there will be damage, likely extensive in some areas.  They have been warned to evacuate in low-lying areas. Others have been told to prepare.

How to prepare isn’t necessarily clear. Remove objects likely to fly away. Have batteries for when the electric is lost, as the power company robo-called the other day to warn they anticipated 7-10 days without power. Stock up on drinking water for when the ground water is contaminated and the pumps that send clean water to homes fail. 

Frankly, it all sounds like government should have been prepared and isn’t.  Every time something worse than a 1 year storm hits, they can’t seem to muster whatever it takes to make it through unscathed.  Some will say it’s because they don’t have the money to fix poor infrastructure decisions that were penny-wise and pound-foolish made years ago, and which we still endure.

Others say baloney, we simply piss away infrastructure money on silly toys, gimmicks and social choices. Most people never took econ 101, and aren’t familiar with macroeconomics and the allocation of scarce resources. Nobody ever talks about guns and butter anymore.

As for SJ World HQ, I anticipate the imminent loss of electricity. The north shore of Long Island loses power whenever anyone sneezes too hard, so it’s pretty much a foregone conclusion.  Since New York City is shut down, it’s not terribly consequential. We’ve been here before, and survived. We will again. It’s boring and annoying, but that’s hardly moves the needle on human suffering.

Until then, the plan of action is to just keep doing what we always do. We’re as prepared as we can be, and as unprepared as ever.  For now, the only thing we can do is listen to the wind whistle through the trees and await the storm.

I hope everyone remains safe and free of damage. In the meantime, there isn’t much else to do but continue wait. So forgive me as I shift back to normal mode and think about things other than Frankenstorm, as it will happen whether I spend the day worrying about it or not. 

Following on New York University Law School’s  announcement that one of the options for the third year of law school will be to specialize, Colorado lawprof Victor Fleischer picks up the ball and runs. At the New York Times Dealbook, where they just can’t get enough of the academic perspective, he writes:

Law firms are struggling with the new normal of a segmented industry. The new economics of the profession are marked by increased lateral mobility among partners, increasing numbers of nonequity partners, increased client scrutiny of fees and a decrease in the routine legal work that used to support the pyramid model. As a result, it is harder for law firms to devote nonbillable time to training entry-level associates. Law graduates are expected to arrive knowing more than just how to “think like a lawyer.” The tricky part for law schools is trying to figure out what, exactly, they need to know.

Having a rather typical academic background, a couple of clerkships and a brief stint in Biglaw, it’s not entirely clear how Fleischer came to have his finger on the pulse of the legal market, but his vision of law firms appears limited to the handful of big ones.  This matters when considering where he goes.

In my view, law schools should play matchmaker, guiding students toward specialties that are likely to endure. Big firm attorneys in some practice areas will continue to have a comparative advantage over low-cost attorneys, in-house lawyers and other professionals.

But since most lawyers aren’t worthy, they will fall by the wayside.

Few law students go into academia or become public defenders. But the more common narrative is for law students to arrive at law school with a vague notion of doing international or environmental law, then meander aimlessly around the curriculum. Eventually, realizing that gainful employment is probably a good idea, they find themselves in a job interview wondering what in the world a bond covenant is. At that point, offering an elective course in accounting and finance is too little, too late.

While Fleischer, despite his implicit elitist stance, advocates for more practical training for lawyers, though why learning accounting and finance in the last year is too little, too late, is never explained. Perhaps we shouldn’t question the professor. But he shifts effortlessly into the LL.M. model, and wonders:

Could the same approach work in other areas of law that demand specialized legal expertise, like securities law, banking law or patent law? The critical question is whether there is sufficient market demand to supply an adequate number of jobs with six-figure salaries.

Again, it’s unclear whether he’s advocating for specialization within the existing law school structure, or asking law students to double down with an LL.M. if they can’t find work as a generalist.  And finally, his implicit elitism becomes flagrant.

None of this solves the broader problem at nonelite schools: the supply of law graduates simply exceeds market demand. The median salary of law school graduates at many schools is about $50,000, while average debt load is now over $100,000. As specialization takes hold, the next logical step is to lobby the American Bar Association to make the J.D. a two-year degree, with an optional third year of specialization for schools where that makes sense.

Sadly, his conclusion isn’t without some merit.  The vast majority of law students graduating will never see Biglaw salaries.  If it makes you feel any better, even those who nailed Biglaw jobs over the past seven years will never be made equity partners, and even those who do may find their firms collapsing under their own weight, leaving them fighting clawbacks.  A bit of schadenfreude, but it won’t pay your bills.

Clients want to know that their lawyers are capable of handling their work.  Lawyers may say they are even if they can’t find their way to the courthouse without a map, but to admit otherwise is to starve.  Recognized specialization may work to help, both by preparing lawyers to practice and providing a means for clients to distinguish between the lawyer who has familiarity, if not experience, with a particular practice area and those who are blowing smoke.

But Fleischer omits a critical component of the transition from generalist to specialist, particularly if the point is to make law students practice-ready and client-safe.  Scholars can’t do it.  With rare exceptions, scholars are no more capable of finding the courthouse than the M&A associate. Scholars can’t teach how arraignments happen, or the risks of being  reasonably unready in a personal injury trial assignment part.  These are the realities that crush a lawyer’s soul, and a client’s dreams.

The legal academy is offering their remedy for the ailment they created by insularity and hubris,  And yet they do so without acknowledging that teaching the nuts and bolts of lawyering requires someone who knows the nuts and bolts of lawyering.  How many lawprofs can teach law students the finance of running a solo shop, given that they’ve never been near a solo shop lest it soil their suit?

I don’t fault Fleischer for not recognizing that he’s proffered only part of his own answer. He wouldn’t realize it, because his experience is so limited and his vision of the rest of the profession so distant.  But this is why the future of law can’t be left to academics to decide on their own, and why practicing lawyers, the ones in the trenches where these law students will likely end up when they get no Biglaw callbacks and graduation date is looming, need to become involved.

I’ll sit by the phone, just in case some nonelite law school calls to ask if I can teach a third year specialized course in the practice of law.  I don’t expect it to ring. 

Eugene Volokh argues that a well-written legal argument doesn’t merely have a logical persuasive effect, but creates what he calls an authoritative bubble.

Rightly or wrongly, something that seems to be a thoughtful written argument by a respectable professional tends to have more than just a logical persuasive effect — it also has a psychological effect. If the argument is well-crafted, the reader is inclined to credit not just the factually verifiable claims in the argument (whether about fact or about precedent), but the analogies and the speculation in that argument, too.

The reader, even a judge (who is therefore of higher status than the writer), is likely to subconsciously treat the argument as having some authority. This usually won’t let the author get away with total nonsense, or mischaracterization of the facts and the law (once that’s exposed). But when the argument involves judgment calls — is the case really that similar to that precedent? what are the practical effects of a ruling likely to be? — the reader will be inclined to be moved by the argument even beyond what the purely logical force of the argument justifies.

The more general argument is that poorly written briefs impair a lawyer’s “credibility,” which Eugene defines as dishonesty or factual accuracy.  My definition would be somewhat different, more along the lines of general believability and trustworthiness. I trust that a person knows what he talks about when he can write well about it.

Eugene’s bubble runs more along these lines, that the solid writer creates a psychological impression of authoritativeness on the subject of his writing, and is thus sufficiently trusted as an authority that he can both go further with his argument and his thoughts are accepted with lesser scrutiny. 

An unnamed, relative rookie judge responded to Eugene’s post with his views :

As a criminal law trial attorney I thought it advantageous to write in a way that made it easy for a judge to rule in my favor; succinct, good authority, concise arguments. I tried to make every submission under 7 pages. I can count on one hand in 28+ years as a trial attorney reading an opponent’s brief that impressed me or, as you put it, carried a sense of authority.

I had never thought about it in terms of, “authority,” but I think it’s an apt description. The citation to a statute or case was usually on track, but everything else seemed almost always to be the written counterpart to a Jackson Pollok painting. Terrible sentence structure, typos, misuse of punctuation, facts not incorporated effectively, hyperbole, the list goes on. Good, persuasive written arguments do carry an authoritativeness that, for me, equates to persuasiveness. And it often is an unconscious appreciation, you’re persuaded without understanding why.

As a judge, admittedly with only 20 months experience, I have yet to read anything that has impressed me. Some of it is just plain, well, garbage. For years judges in private conversations would extol the superiority of civil law attorneys to me but I have yet to see much in the way of praiseworthy writing there either.

Naturally, a reader smacked back from the safety of an anonymous internet comment,

Holy pretentiousness Batman! Do you have an ego or what.

This reaction, aside from ignoring the nature of what it means to sit as a judge, reflects perhaps the most dangerous threat to good writing, maybe even good lawyering. Yes, the judge’s thoughts, that he was a wonderful writer and every other lawyer in his 28 years of practice or has come before him in the past 20 months sucks, is outrageously arrogant. But he is now the judge. He now decides whether you win or lose. By definition, the effectiveness of every lawyer who comes before him is determined by his reaction to their authoritativeness, or lack thereof.

It takes a very long to time to fully appreciate this aspect of jurisprudence.  I can still recall Myres McDougal tell this to the class, and warning us not to get too wrapped up in the details as we wouldn’t come to appreciate it for many years. Just listen, he said. Some day, you will understand.  He was right, but it took a long time.

Self-assessment of the quality of our legal work is fraught with danger. The distinction between efficiency and effectiveness has been so horribly blurred that we have great difficulty realizing that our satisfaction with the sufficiency of our effort is utterly irrelevant. We pat ourselves on the back for a job well done and feel self-satisfied. Other than the fact we lost, we were great.  After all, didn’t our mother tell us to do our best, and that’s all anyone could ask of us? 

Mother was wrong. If our best is inadequate, we have two choices. Get better or get out. And the person who determines whether our best is inadequate is the judge, no matter how crazy, arrogant or wrong he may be.

Almost all lawyers in the first five to ten years of practice reject this notion without even realizing it. They glow with the confidence of youth, Certain that they not only know what they’re doing, but that they’re doing it well.  They know this because they’ve decided it about themselves, and to them, that’s the only bar they need to meet.

Somewhere about the tenth year of practice, most lawyers come to the realization that they aren’t nearly as brilliant as they thought. They don’t’ necessarily reach this epiphany willingly, but by reaching a point in life where one surveys one’s accomplishments and failures, and those with sufficient metacognitive abilities realize what they could have done better if they had only known.

Over the next 20 years (and I limit it to 20 as that’s as far as my experience stretches), you struggle to achieve the bubble of authoritativeness.  You will never be as confident as you were in those first ten years because you know too much. 

This is one of the reasons so many lawyers’ aspirations change from Clarence Darrow to survival, realizing that they weren’t before, and will never be, a great lawyer. Instead, they turn to making a living and, for the better of the bunch, not screwing up too badly.  They give up trying to be better.  It won’t happen.

As a group, lawyers have never lacked for unwarranted self-esteem. But if it’s worse now, since everybody’s a winner, then the earlier one reaches this epiphany, the better off everyone will be, whether as an effective lawyer or coming to the realization that you won’t be Clarence Darrow either.

As is my way, I deleted the first two emails I got from somebody who called herself Jennie Reedy.  Her gmail address was a typical giveaway, as opposed to someone who at least had an email that led back to the source.  Like many blawgers, I get about 20 of these “requests” a day, and just chuckle at the stupidity and ignore them.

Protip: The “guest post” scam is a common method of clown marketers to enable ignorant lawyers to manufacture an overnight presence on the internet. It doesn’t work, both because no legitimate blawger will post this crap (and it is invariably total, utter crap) and because every other incompetent buffoon marketer is telling their lawyer clients the same thing. 

But this Jennie Reedy was a persistent one. After ignoring her first email, a second arrived. Then a third. Now she caught my attention, not because I took a sudden interest in her “guest post” offer, but because she became annoying.  What was unusual about the first email was that it included an attachment of the proposed “guest post,” whereas most make the offer but don’t send anything.

So I took a look at what she (if, of course, she is even a “she,” since on the internet, nobody knows you’re a dog) sent me.  It was awful.  The post was entitled “Drunk Driving: 5 Common Misconceptions.” and it was just dumber than dirt.  But at the bottom of the post was the kicker.

Jennie is a long time San Diego criminal attorney . Away from the office she unwinds by baking pies, doing crossword puzzles and spending time with her three beloved teenage daughters.

After you’re done laughing at the things Jennie does to unwind, because as marketers explain, people want to know more about your personal life so they will like you better, note that Jennie says she’s a long time lawyer linking back to the website of Bradley Corbett , a 2007 graduate of Thomas Jefferson Law School who opened his own practice in 2011. He’s also an Eagle Scout.

I checked  the link at his website where I could “Meet [his]Team,” and found no one there by the name of Jennie Reedy.  I wondered if Bradley knew that someone was masquerading as a “long time” attorney related to his short time law firm, so I sent him an email.  Bradley responded that he “had no idea who that is.” Shocking. I then sent an email asking whether he had someone doing marketing for him, but received no reply.

So what are the chances that someone is roaming around the blawgosphere offering an incredibly stupid “guest post” linked to a lawyer’s website, claiming to be a lawyer, and you don’t know who she is? 

As my pal, Eric Turkewitz, made clear years ago, outsource your marketing and you outsource your ethics.  Does any lawyer really think it’s a good idea to have a marketer spamming the blawgosphere claiming to be a lawyer for your firm?

I have no idea whether Bradley Corbett is a good lawyer or not. Based on his website and activity at Avvo, he’s certainly not shy about marketing himself, but that doesn’t make him a bad lawyer. What it does, however, is give rise to a deep question about his judgment, that his desire to get business is more important than his reputation or integrity. 

And please note that I’m not picking on a new lawyer for trying to survive, but rather had this forced upon me by the tenacity of Jennie Reedy.  So don’t blame me for doing no more than the guest post spammer asked of me. I looked. I found. That’s how it works.  Had she not pushed the envelope, I would never have bothered with Bradley Corbett. I was almost inclined to post the “guest post” together with its link back to him just because it was so mind-numbingly stupid.

Is that really what you’re trying to accomplish when you manufacture a social media persona?