incidents and accidents, hints and allegations

Doubtless someone else has, but re: the most recent in the wave of federal district court decisions striking down state same-sex marriage bans (summary, link to decision at SCOTUSblog)—

I saw it noted on Twitter that "Most federal judges are ex-prosecutors in their 50s, i.e. cultural conservatives. If they're overwhelmingly rejecting SSM bans, it's over." That was right below a screenshot of the end of the decision, which I will quote at a little more length:

. . . in future generations the label same-sex marriage will be abandoned, to be replaced simply by marriage.

We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.

So I went looking for information about the judge who'd been the most recent to be moved to eloquence on this subject. (Though, I confess, I would have said "onto.") And indeed: John E. Jones III is a Republican appointed by George W. Bush who will be 59 next month. (Though he was a part-time public defender rather than a prosecutor.) He was also the judge on the intelligent design trial, wow, over a decade ago now, how time does fly.

I have no energy to go looking up the rest of the judges now, but, data point.

A bit ago, a co-worker of mine said that they were going to be on a panel for 1Ls about what they wish they'd known before they started law school. The other people in the discussion had some good suggestions, such as "what outlining is for" [*] and (new for the current state of the profession) "if your grades aren't very good in the first year, consider stopping before you incur more debt that you won't be able to pay off because the job market sucks."

Here's mine, perhaps a bit late (every school I ever attended started after Labor Day, so I find the idea that people have already started very weird), but all the same.

The first thing that came to mind: most legal writing is bad writing.

The goal of legal writing is either to persuade or to instruct. Neither purpose is served by unclear, difficult, or boring prose. Good legal writing is concise, is engaging, and helps the reader understand what is being discussed. Unfortunately, most legal writing fails to meet this standard, partly because of traditional style conventions.

It may be hard to realize this as a 1L because the content of the stuff you're reading is also new and confusing, but if you're reading the same sentence over and over again, the style may well be contributing. Try not to unconsciously absorb the peculiarly-inverted syntax, passive voice, and extreme length of bad legal writing, or you will (like me) spend much painful time trying to beat those tendencies out of your own writing.

(For an example and discussion of effective and highly-praised legal writing, see the links in this blog post.)

The second thing that came to mind was much more meta: law school is mostly wasted on law students.

I am rapidly running out of steam and this could turn into endless anecdotery, so let me sum up: take the black-letter courses because you never know what you're going to end up doing and if you've met the basic principles before, you'll be able to research your particular need much more effectively; and if those courses intersect with amazing professors, excellent, and if not, seek them out as you can, though you probably won't appreciate them fully until you start practicing.

The last one doesn't quite fit because it isn't something I wish I had known, but it's worth saying anyway: "asshole" is a failure mode, not a prerequisite for success. 'Nuff said.

[*] Outlining is organizing and distilling the course material into a concise reference document, in order to understand that material. But go ahead and participate in group outlines, because you should be outlining for yourself regardless and (if competitive advantage is an issue) other people's outlines aren't that much help anyway.

My standard response to people who aren't sure if they want to go to law school is, "Don't." In the past, I've gone on to say, "Law school sucks enough that unless you're positive you want to practice law [*], you shouldn't spend three years of your life at it."

This NYT article reminds me that my answer also must include, "and the job market is so bad that it is an amazingly risky gamble."

So, for the record.

[*] Two notes about "practice law":

First, if you're one of the minuscule number of people who can go straight into teaching law, you don't need to be asking me for advice.

Second and far more importantly, as the article says:

This gets to what might be the ultimate ugly truth about law school: plenty of those who borrow, study and glad-hand their way into the gated community of Big Law are miserable soon after they move in.

If you don't know what kind of law you want to practice and what it'll be like, it behooves you to find out.

( embedded video: 'The Word: Neutral Man's Burden' )

Three quick comments I found interesting:

• Dahlia Lithwick on the difference between judicial activism and judging; also on how "when your citizens and/or their Legislature are racing around banning and legalizing the same thing at the same time, the will of the people is not necessarily the last word on what's constitutional."
• Kenji Yoshino on the potential wider legal consequences of the decision. I note that the decision explicitly refused to make immutability a requirement of traits deserving the highest legal protection, as Yoshino argued in Covering.

  (Also, it is amusing to contrast his and Lithwick's characterizations of the way the decision is written.)

• The Slacktivist considers people who are sincerely opposed to same-sex marriage for religious reasons and wonders "why these friends and brothers and sisters of mine think that such theological arguments can or should be persuasive to those who don't share our religious perspective."

In Covering: The Hidden Assault on Our Civil Rights, Kenji Yoshino argues for a new way of looking at discrimination and civil rights. As the title indicates, this centers on the concept of covering, or downplaying a disfavored trait to blend in:

Famous examples of covering abound. Ramón Estévez covered his ethnicity when he changed his name to Martin Sheen, as did Krishna Bhanji when he changed his name to Ben Kingsley. Margaret Thatcher covered her status as a woman when she trained with a voice coach to lower the timbre of her voice. Long after they came out as lesbians, Rosie O'Donnell and Mary Cheney still covered, keeping their same-sex partners out of the public eye. Issur Danielovitch Demsky covered his Judaism when he became Kirk Douglas, as did Joseph Levitch when he became Jerry Lewis. Franklin Delano Roosevelt covered his disability by ensuring his wheelchair was always hidden behind a desk before his Cabinet entered.

The central argument of the book is that covering is an assault on civil rights because it is an assault on autonomy. If one has a right to be something, one has the right to do the things that one feels are part of that identity. Otherwise, "the demand to cover . . . is the symbolic heartland of inequality—what reassures one group of its superiority to another." In other words, though assimiliation can be necessary for peaceful co-existence, its dark side also should be recognized.

The book is a blend of memoir, history, and legal analysis. It begins with a chapter of memoir, charting the author's "struggle to arrive at a gay identity." Yoshino did undergraduate and graduate work in literature before switching law when he accepted his sexuality—because, he writes, "A gay poet is vulnerable in profession as well as person"—and all of the autobiographical portions of the book are elegant and precise. And in the later chapters Yoshino moves between memoir and history or legal analysis with a remarkable fluidity, never jarring me in the transition.

After the context-setting opening chapter, the book divides into three parts. The first is an examination of gay history, which is itself divided into three parts: conversion, or attempts to change sexual orientation; passing, or attempts to hide sexual orientation; and covering, or attempts not to flaunt sexual orientation. Each section emphasizes how it is still a current problem. Conversion lives in the idea that homosexuality is "contagious" and therefore children need to be protected from the promotion of homosexuality in schools, and passing in the U.S. military's "don't ask, don't tell" policy. And both can co-exist with covering, such as in custody cases:

[When denying] custody to a lesbian mother in 1990, a Louisiana appellate court cited "open, indiscreet displays of affection beyond mere friendship . . . where the child is of an age where gender identity is being formed." If acceptable sexuality for same-sex couples is limited to the appearance of friendship, then the expectations for parents are clearly not orientation-neutral.

Notice as well why such covering is required—parental flaunting is dangerous because it could convert a child whose "gender identity is being formed." All three demands for assimilation are simultaneously in play—because children must not be converted, parents must pass to their children and cover to the courts. The shifts from conversion to passing to covering . . . are shifts in emphasis.

The book then considers covering as applied to race and sex, drawing its examples mostly from the employment context. One of the new wrinkles it examines is reverse covering, particularly with regard to women. For most non-dominant groups, the pressure to reverse cover comes from other group members. Women, however, are pressured to cover and reverse cover at the same time and by the same outside group (men), that is, "to be 'masculine' enough to be respected as workers, but also 'feminine' enough to be respected as women."

(Though the book focuses on groups currently protected by civil rights law, because it's written by a law professor, the book takes care to note that everyone covers in ways small and large: "the mainstream is a myth. . . . All of us struggle for self-expression; we all have covered selves.")

Finally, in the shortest section, the book looks at models of civil rights law. It considers two areas in which the idea of accommodation is supposed to be recognized, religion and disability, and examines the pressures towards assimilation within those areas of law. It then argues for a new model of civil rights:

• The law right now tends to prohibit only discrimination based on immutable traits. This is misguided: the question should not be whether a person can change, but whether the person should be made to change.
• One way the law can do this is by focusing on common liberties/fundamental rights, rather than on whether group X needs additional protection. This is partly because courts are more likely to be comfortable with such a formulation, and partly because the group X formulation brings up the question of what's essential to being part of group X, which is dangerously near stereotyping.
• The law is limited in effectiveness and appropriateness when it comes to covering:

  When I hesitate before engaging in a public display of same-sex affection, I am not thinking of the state or my employer, but of the strangers around me and my own internal censor. And while I am often tempted to sue myself, this is not my healthiest impulse.

  Instead, civil rights law should be part of broader attempts to view ourselves and others with compassion and understanding.

On the whole, I think this is a well-written, useful, and accessible book. It's true that unless carefully deployed, the idea of covering could reinforce stereotypes. As a colleague of Yoshino's puts it, "One way minorities break stereotypes is by acting against them. If every time they do so, people assume they are 'covering' some essential stereotypical identity, the stereotypes will never go away." For this reason, the book attempts to emphasize individual autonomy and authenticity, rejecting demands to reverse cover as well as cover; I think this bears repeating, because it strikes me as the kind of point likely to get lost in general discussions. Also, because describing solutions is harder than describing problems, the final section feels a bit slight (and also strikes me as having somewhat more jargon than the prior sections). However, by targeting a general audience, the book necessarily limits the amount of legal implementation details it can offer.

The idea that everyone covers immediately resonated with me, and I have begun thinking about my own covering and whether all of it is necessary or useful. I hope that when others recognize the concept, they will do the same, and in the process gain awareness of and empathy for those who are pressured to cover without good reason.

(The book's preface, which functions as a short summary, can be read online, as can the scholarly law article which originated the concept (choose "View as PDF" from this Yale Law Journal page).)

(ETA: see also a long New York Times article by Yoshino, The Pressure to Cover, which functions as a long (5,000 words) summary. Thanks to ckd for the link.)

[Cross-posted to my booklog.]

This morning, I was in Rochester to argue two cases. When there are a lot of cases on the calendar before mine, I do my best to pay attention to them: it keeps me awake, it's educational on a number of levels, and I'm not going to be able to concentrate on my own case during other people's arguments (I prepare ferociously ahead of time instead). Today, I was rewarded with an interesting set of facts, which I believe went something like this:

Criminal conviction for drug possession. Defendant had jumped out of a still-running car and run through a series of backyards. He was eventually arrested some distance away (I did not hear any of the distances). A bag of drugs was found on the ground near a fence, which defendant had jumped over; the jumping was the only time the pursuing officer lost sight of defendant. It was a cold snowy day, and there were only two sets of footprints in the backyard, defendant's and the officer's. The bag was warm to the touch.

Is that sufficient evidence to convict defendant of possession? Recall that possession must be proved beyond a reasonable doubt.

(I think one of the justices said it would make an interesting law school test question.)

Then when I got home, I found myself with another circumstantial evidence question, which amused me. The faucet in the back wall of the house was on. A quick call to Chad confirmed that he hadn't left the water running for some reason, so I went out and turned it off. The faucet turned easily, and there were pieces of icicles on the ground around it. I immediately concluded that a falling icicle had hit the faucet in just the right way to turn it on—which is perhaps somewhat more improbable than the case I heard this morning, but since the stakes are so much lower, I am perfectly happy to accept it.

Do you all have any interesting examples of circumstantial evidence? Or want to weigh in on these examples?

(Note to self: find a "lawyerly" icon.)

I'm almost back to normal, health-wise (unlike Chad), but work has been kicking my ass this week (I want to write about a minor thing that's contributing to that, reader expectations, but I don't know when). Have a link dump instead.

• Slate article about pretending to be a lobbyist. My reaction was, perhaps unusually, pleasure at how helpful the offices she visited were. I spent a year working for a U.S. Representative, and it's nice to see that my experience wasn't atypical (I don't think I had any meetings like that personally, but I remember seeing similar discussions).
• It's Saiyuki week and I don't have time to re-read or do an art post or anything. Wah. I console myself with a procrastinatory Hakkai icon, which pleases me quite inordinately.
• My law review article on special verdicts in criminal trials has been cited by an actual court, the Third Circuit! Eleven page PDF, page 9, footnote 2. I hoped, when I wrote the thing, that it would be a useful resource for practitioners, and so I am very chuffed that at least one person found it worth referencing.
• New anti-spam plugins for Movable Type 3.2: HM Passphrase, which looks like an accessible "prove you're human" test; and Blacklist32, which lets the old plugin MT-Blacklist run alongside 3.2's built-in SpamLookup.

Finally, I've been in the same room as a lot of basketball games this week, and I'd like to say "Go, UAlbany!" The #16 Great Danes led #1 seed Connecticut by twelve in the second half before they ran out of steam and Connecticut woke up. It was a heck of a fun game until then.

Scrivener's Error has some advice for new law students, which I largely agree with—particularly the "foundational course" advice, because boy do I regret not taking Federal Courts or Administrative Law, on the naive theory that, hey, I'm not clerking, I won't need them! Ummm, no. (I haven't yet missed taking Business Organizations or Bankruptcy, but I imagine it's only a matter of time.) I'd also add Wills, Trusts, and Estates to the list of things one should take, and give Evidence a bullet point all of its own just for emphasis—both fundamental, and I think they'd be hell to learn piecemeal or for the first time during bar review.

Two more pieces of advice: (1) Have something outside of law school and hang onto it, otherwise law school will eat your life, especially during your first year, which is Bad. (2) It's traditional to try and do way too much the first time that you're allowed to pick your own classes. It's probably a mistake everyone needs to make for themselves, but be aware of the tendency.

Babies this week: a co-worker's first, early, and another co-worker's third, also early. My cousin's first was last week, also early. Just one left of the end February/early March due dates, my friend, though as I think she was having the easiest time of her pregnancy, I suppose it's not unreasonable.

[Edit: actually, my friend's baby arrived Saturday night, I just didn't know it until now. So no Leap Year babies in this crop, and no late ones either.]

Illnesses this week: Chad: rather sick. Me: feverish and tired for most of the week, but nothing else, yet. *crosses fingers*

Vanity this week: gave up on growing out my hair and got it cut yesterday. I'm currently considering whether I dislike it enough to get it cut again now; I think not, but just barely. Also bought a new suit—yes, I know, another, that's the fourth this year, but it was only $60 and it doesn't need alterations. I think my wardrobe's sufficiently stocked now, though.

Dog this week: best game ever: take one (1) favorite toy. Wrap in one (1) large towel. Knot ends. Give to dog, let fun commence. (Be sure not to knot too tightly, or else the dog will just rip the towel fabric rather than dig at and toss the towel around until it comes loose.)

Food this week: cheese lasagna. Mmmm, cheese, my Platonic ideal of lasagna. And very easy, too, especially if one uses (two 27 oz. jars of) pre-made sauce and Barilla no-boil noodles. Notes to self: don't bother slicing the mozzarella, just buy a couple of bags of shredded. Don't worry if the layers come up past the top of the pan, the grated (not shredded!) parmesan won't stick to the foil.

Movies this week: Lost in Translation. Mostly Chad has said what I would, but a couple of extra comments:

• Opening credits consisting solely of a shot of Scarlett Johansson's butt in translucent panties? Strange.
• Despite that, this was an incredibly lame R. The rating claimed to be for "some sexual content;" the movie featured one misunderstood prostitute, played for (awkward, uncomfortable) laughs and no real skin, and one strip-club dancer with three seconds of breast, and that was it. The ratings system is seriously screwed up, especially considering that The Passion of the Christ avoided an NC-17, seemingly without cuts.
• I guess I'm just a narrative junkie, because I prefer to know that something happened in a movie. And to know what that was.

Public service announcement of the week: if you are linking to the New York Times, try putting the URL into this weblog-safe link generator. It won't expire, and you won't need a login, either. (The links generated are from the RSS feeds.)

Same-sex marriage news this week: unfortunately, this article about the latest developments regarding New Paltz isn't on the RSS feed for some reason. Offered without comment, because of its connection with my professional life.

Footnote of the week: the very, very last one (just hit end) in this decision, via The Volokh Conspiracy. "It is counterproductive for counsel to litter his brief with burdensome material such as 'WRONG! WRONG ANALYSIS! WRONG RESULT! WRONG! WRONG! WRONG!'"

And finally, spam of the week: two e-mails arrived at the same time, hawking Viagra, with rather good From: lines: Decrepitude K. Servomechanisms and Booker G. Assiduousness. I don't know, they have a ring.