Week Fourteen, Part 6 - Crim: Demolish the Truth-tellers

In Criminal Procedure, we fly by four topics: police line-ups, prosecutorial discretion, grand juries, guilty pleas. Zoom!

Professor Tex Dutile asks, “Suppose you as a lawyer have a client scheduled to appear in a lineup. The victim has described the suspect as having long hair and a mustache. Is it ethical to have your client – the suspect – to cut his hair and shave?”

Most students argue it’s unethical. Dutile listens as he leans against the far wall, arms crossed. He doesn’t respond to any of the points raised; he only calls on more students to get new points of view. Finally he asks, “Isn’t that the defense lawyer’s obligation – to preclude the jury from making unfavorable assumptions?”

We chafe a bit.

“How about this,” he says. “One of our alums represented the defendant in an assault case. At trial, the prosecutor was at one table, the defense lawyer and suspect at another, the victim was testifying. She ID’s the defendant. ‘That’s the guy who did it.’ Then our alum calls the suspect to the witness stand. ‘Who are you?’ he asks the suspect. ‘I'm John Smith, brother of the defendant.’ The judge is absolutely livid. He demands to know why the lawyer did this. The lawyer says he was seeking to obviate the inevitable prejudice against the defendant.”

Dutile laughs. “The judge held the lawyer in contempt of court and threw him to jail.” He pauses, waiting for the class to quiet down. “But isn’t that the job of a defense lawyer in an adversarial system – to demolish the truth-tellers?”

We move on to the screening and charging process. Dutile tells the class that a prosecutor exercises discretion all the time, especially as to what charges to bring and what plea bargains to offer. He reminds us that “in merry old England, citizens could bring prosecutions.” And he says, anyone can file a complaint before a federal magistrate. “Theoretically, a citizen could force a prosecution to be brought,” he says.

As for grand juries, Dutile says that in the federal system, they’re made up of up to 23 members. It can be fewer than that, but you still need 12 affirmatives, what would be a majority of 23. We learn that that after a grand jury makes a decision, they have either “returned a true bill" or "no billed it."

Dutile asks, “Is the grand jury a good thing or a bad thing? Well, on the federal level, it’s one more piece of wisdom on the part of the people who drafted the Constitution. Although expensive, redundant, cumbersome, and sometimes out of control, it’s most important in its potential role – a body of citizens standing between us and the sovereign.” He concludes, “And it’s one of the few ways that a citizen can participate in process... other than as a victim.”

We laugh.

Lastly we discuss guilty pleas. In Boykin v. Alabama, the Supreme Court held that it was error for the trial judge to accept the defendant’s guilty plea without an affirmative showing that it was intelligent and necessary.

“I must know the charges against me, the consequences of my plea, and the rights that I am waiving,” Dutile says, as if he’s the criminal. “I must plead affirmatively on the record. Not by implication. Not by inference. Not by innuendo. Not by suggestion. ”

He reflects for a moment. “Nowadays it takes longer for a plea than a trial.”

In some jurisdictions, Dutile says, 90 percent of the convictions come through pleas. “It’s a common misunderstanding that guilty pleas show repentance. They don’t. It just means the defendant was smart enough to know that a plea would get him five years less.”

* * *

Labels: , , ,


Week Fourteen, Part 5 - Legal Writing: The Grinch Who Stole Thanksgiving

It’s our last legal writing class of the semester and Professor Teresa Phelps gives each 1L a parting gift: the take-home, final exam.

Phelps explains that the test is “closed universe.” All the facts, case law, and relevant statutes are included. We will not need any outside research.

I thumb through the thick packet of paper. Under “Facts,” a diagram of a traffic accident catches my eye. Two dots show “places where Lenhardt was hit – by car 1 and car 2.”

The case law section is intimidating: 72-pages long and single-spaced. Yikes! The 16 cases come from a variety of jurisdictions, both federal and state. “Johnson v. Brown, 77 Nev. 61, 359 P.2d 80 (1961)” reads the first citation. Old case, I think. The second one, Gibb v. Cleave, reaches back even further: 1936.

Next I skim the three statutes. “Right of Way – Public Roadway.” “Wrongful Death Liability and Damages.” “Comparative Negligence.”

I wonder, Am I ready for this? Of course! A lawyer-to-be is always ready. Like canned ham.

I predict it will take five hours to read everything once. Another five or so to figure out the legal problems. Five more to write the office memo. Two hours on the client letter. Another couple on the court memo. Five hours to revise. A full day of life – 24 hours – given to Phelps and Notre Dame Law School.

In class we review the basics of an office memo, client letter, and court memo.

“Do them as a set,” Phelps says. “And do them by yourself. A fresh eye to proofread for typos is okay, but anything more is an honor code violation.”

She tells us to use our planning strategies such as the revision checklist. “Use the writing process to exercise control over the product.”

Phelps adds, “Be confident. Most writers are somewhat insecure. Writing is one of the few things that forces us to put ourselves on the line in a personal, ego-connected way. Confidence in writing is critical for a professional.”

She reminds us, “The law is all language. Learn the importance of individual words. Today the dockets are so crowded that the amount of oral argument is way down. Cases get settled on the basis of writing.”

Phelps flashes a double-dimple smile. “It’s a struggle now, but when you get hired, your writing will be well above the level of a first-year associate.”

Class ends and we file into the hallway. I’m between two girls who talk across me.

“What’s Phelps so chipper about?” one grumbles. “She just stole Thanksgiving.”

* * *

Labels: , , , ,


Week Fourteen, Part 4 - I Forget, Therefore I Am

Since three of the four finals – CivPro, Crim, Torts – are closed book, I know there’s a mountain of memory work ahead of me. Even on fact-pattern exams, the testing style that made law school famous, the student must state the black-letter law and how it applies to the issues at hand.

So, on my way across the South Quad to the parking lot, I study flash cards. My goal is to memorize the Crim Pro questions-and-answers – 131 of them – I wrote up over fall break. They’re all basic doctrine.

I remember a statement about Notre Dame by Regis Philbin, an alum. “You walk on this campus and you breathe it in. It gets into your heart, your mind. It stays with you forever.”

Ha! The only ideal I’m “breathing in” is Question #64. “What's the ‘apparent authority’ doctrine (Illinois v. Rodriguez)?”

I read the answer out loud three times. “Police may enter private premises without a warrant if they are acting in reliance on a third party's consent whom they reasonably believe has common authority over the premises.”

Concentrate. Concentrate. Please, I think, “Stay with me forever.”

I commit each phrase to memory.
  • Police.
  • Private premises.
  • Without a warrant.
  • Reliance.
  • Third party’s consent.
  • Reasonably believe.
  • Common authority over the premises.
I see areas that could be tested in fact pattern. Is a piece of land actually “private premises”? Did the statement by a third party rise to the level of “consent”? Was there “common authority”?

I feel like I understand this holding.

“Telloyan owns the case law,” I imagine my classmates saying. “Very impressive. He reads a definition and it stays with him forever.”

I move on to Question #65. “What are the 2 keys to the ‘apparent authority’ doctrine? 1 - The belief must be reasonable; if the ‘consenter’ claims to have authority to consent to a search but there are circumstances suggesting that he really doesn't, the police can't conduct the warrantless search. 2 - It doesn't matter if the police make a mistake in that the consenter doesn't actually have authority; all that's necessary is that the police reasonably believe he does.”

On the drive home I listen to WestLaw review tape on Contracts. Soon I’m absorbed in Article 2 of Uniform Commercial Code. I comfort myself with the thought that the test is open book.

Before long I turn onto Edinburgh Drive and then into our garage. I pull out my flashcards and once again quiz myself: Question #64: “What's the ‘apparent authority’ doctrine (Illinois v. Rodriguez)?”

I draw a complete blank. The answer hasn’t even stayed with me for twenty minutes!

I slam the car door and stomp inside.

Terri asks what’s wrong.

“Finals are three weeks away! I’m a meathead! Cognitive decline begins at age thirty!!” Blah, blah, blah.

Terri walks to the bedroom and comes out with a white t-shirt in her hand. “You’re not going to acquit are you?”

“What?” I growl.

Terri smiles and holds up the shirt. On the front in maroon letters is “The Layman’s Glossary of Legal Terms.” Underneath it are off-the-wall definitions:
  • acquit - to wimp out
  • arraign - stormy weather
  • attorney - major sporting event
  • bar association - drinking buddies
  • bona fide - dog treat
  • case law - Mexican coleslaw
  • corpus delicti - rib capital of Texas
  • court of appeals - justice for bananas
  • crime of passion - sloppy kisses
  • debtor - less alive
  • deceit - a place to sit down
  • discovery - cable TV channel
  • evidence - denture cleaner
  • extradition - more math homework
She points to the top one. “You’re not going to wimp out are you?”

I laugh. “No, I won’t. I plan to acquit myself well, thank you very much.”

Terri tosses me the shirt and I hold it to my face, inhaling the terms.

* * *


Week Fourteen, Part 3 - CivPro: Inconvenient Questions

The question-and-answer format in the law school classroom hearkens back to Socrates himself, or at least to Harvard's Dean Langdell, and on Wednesday it’s my turn to drink the hemlock.

“Mr. Telloyan,” calls Professor Joseph Bauer, “let’s start with you.” His tone has a hard edge, and I know he remembers my SpaghettiO’s cop-out during Immunity Days.

My mouth goes dry and I feel shaky at the thought of Socratic torture in front of 75 classmates. Behind me, I hear a whisper. “You’re toast, man.”

The legal doctrine to be examined is forum non conveniens. If a claim has been filed in a grossly inconvenient system, the court has the discretion to dismiss it. At Bauer’s command we turn to Piper Aircraft v. Reyno, a 1981 Supreme Court case.

Bauer sets out the facts. In July, 1976, a twin-engine Piper Aztec crashed in the Scottish highlands. The pilot and five passengers, all Scottish, died instantly. There were no eyewitnesses.

First question. “Mr. Telloyan, where was the aircraft manufactured?”

“Pennsylvania,” I say.

It’s not quite Socrates asking Euthyphro to explain the nature of holiness, but I don’t mind. Keep it simple, baby.

“By whom?”

Piper Aircraft.”

“What did the preliminary report indicate?”

“Mechanical failure.”

“And how about the review board?”

“It found no defective equipment and blamed the crash on pilot error.”

“So where did the plaintiffs sue?” Bauer asks.

“They instituted wrongful-death litigation in a California state court.” I almost sound like a lawyer, except my voice cracks halfway through.

“Why the United States?”

“Because our laws are more favorable in the areas of ‘liability, capacity to sue, and damages.’” It’s all jargon from the first graph of the Supreme Court case.

We review the procedural history. The case was removed to federal court in California, then transferred to Middle District of Pennsylvania.

Bauer asks me how Piper Aircraft responded.

“They wanted to ‘forum non it outta there.’” It’s an expression I heard Professor Arthur Miller use during the CivPro cram session. I don’t know if it’s the usual phraseology or legal slang.

“What?!” Bauer cocks his head.

Either he didn’t hear me or the phrase is unfamiliar. Regardless, I retreat. “The company moved to dismiss the action on the grounds of forum non conveniens.”

We discuss the reasoning of the trial court in granting the dismissal, and why the Third Circuit reversed. Private interest factors. Public interest factors. Whether a trial in the chosen forum would be “oppressive or vexatious.”

Bauer asks whether I agree with the majority decision.

I say I do.

He asks why.

I want to say it’s because I see Bauer’s hero and liberal lion, Justice William Brennan, in the minority. Instead I mumble, “Most of the evidence was located in Great Britain.”

Bauer nods and moves on to the next case, Gulf Oil v. Gilbert, and another victim.

Unlike a classic Socratic dialogue, Bauer’s probing questions have not forced me to realize “new truth.” Instead, I’ve disgorged what little I knew.

Still, when class ends, I feel a huge burden has been lifted.

And now I understand why Socrates could be convicted and sentenced to death for the simple act of asking questions.

* * *


Week Fourteen, Part 2 - Cram Session

On Tuesday night, I join a group of thirty students at a study group sponsored by West Bar Review. Each session features a videotaped lecture, about four hours long, covering a substantive area of law. Whereas the Socratic method delivers information in drips and drabs, the West tape gives it straight.

The topic for tonight is Civil Procedure. Harvard’s Arthur Miller, the instructor, introduces the material: “Jurisdiction is the jewel of the course. It deals with big issues. And it provides a way of testing the intellectual character of the student, because the stuff can be deep.”

That’s an understatement, I think. Since Week Two, I’ve been lost in the CivPro sea. During the mock midterm, I didn’t know enough to write a simple answer.

Professor Miller divides CivPro into seven areas: subject matter jurisdiction, personal jurisdiction, notice, service of process, venue, removal, waiver.

He summarizes the major cases, such as Professor Joseph Bauer’s favorite, Pennoyer v. Neff. Miller emphasizes the key points which must be included in every answer. Without them, the student will lose points, “even if you just wrote the greatest paragraph since the preamble to the Constitution.”

When Miller explains “venue,” our current topic in CivPro, I’m frantic to get everything down. Since my Immunity Days stunt last week, Professor Bauer hasn’t called on me. I fantasize that I’ve earned “true immunity,” meaning I’m free from Socratic cross-examination for the rest of the semester. But I know in my bones that it’s the opposite – Bauer will drill me sometime soon, maybe tomorrow.

Miller says there are three elements in any venue situation.
  1. Is there venue under the statute?
  2. Can and should I transfer venue “in the interest of justice?”
  3. If I can't transfer venue, should I “forum non it out?”
He defines forum non conveniens as “this ain't a convenient place.”

We laugh along with the taped audience.

Miller’s example is a case involving Union Carbide and the deadly gas leak at its chemical plant in Bhopal. “The federal court said, ‘Get out of here. Go to India.’"

At 9:00 p.m., the video ends. It’s cold and dark outside, but there’s a lightness in my step as I walk to the car. For the first time, I’ve heard Civil Procedure explained in a way that makes good sense.

* * *


Week Fourteen, Part 1 - Contracts: Psychological Crisis

Due to the Thanksgiving holidays, we only have three days of class, Monday through Wednesday. Rather than ease up, however, the profs go full bore. Final exams are approaching and we all sense the urgency.

Contracts class is the worst. We lag 100 pages behind the other two sections, and there are only four periods remaining.

Professor Cathy Kaveny starts class by telling us, “The one thing harder than taking an exam is drafting it.”

No, I think. Try being a 1L with a rookie prof and new casebook!

We motor through five appellate cases under the broad topic of expectation damages, one of the basic theories of recovery.

In Evergreen Amusement, a 1955 Maryland case, a contractor named Milstead was slow in completing his work. As a result, the theater opened in August instead a June, over six weeks late. Evergreen Amusement sued for lost profits based on the rental value of the theater property plus out-of-pocket costs.

We discuss whether lost profits from a business not yet in operation are too speculative to permit recovery.

Some of us agree with the appellate court. It held that lost profits are “incapable of being ascertained with the requisite degree of certainty.”

The elevated language amuses me. I imagine myself using it when my wife Terri asks, “What time will you be home from the library?”

Professor Kaveny says, “The clash here goes to the heart of contract law. As a general rule, calculating expectation damages is an exercise in speculation. You’re always guessing to some degree when you figure how to put the non-breaching back where he or she would've been. But in Evergreen, the basic point is that you can't get damages because it's too speculative. We call this the New Business Rule.”

She asks for a volunteer to make the case for Evergreen Amusement Corp.


John Cerone,” Kaveny says. She looks his direction. He’s a student from New York, undergrad at Cooper Union, heavy to the point of obesity.

“Well,” he says, “Evergreen wanted to bring in an expert who had opened up similar movie theaters.” John scans his brief. “He had all this cool data about weather patterns and population growth which correlated with likely profits. The expert would have showed a way to figure how much money Evergreen lost. It wasn’t speculative at all!”

John’s making the argument like he’s litigated a dozen of these cases.

“Even though we have a new business?” Kaveny asks.

“Absolutely!” says John. “Not giving expectation damages here undermines everybody’s right to recovery. There will always be variable data. You just deal with it!”

Kaveny smiles.

John adds. “I see this case as contract law hitting the wall. For some reason it’s unable to push on any farther.”

We laugh.

“You’re right, Mr. Cerone. It’s almost a psychological crisis! And if you look at the squib following Evergreen, you see the New Business Rule is in decline. In short, it’s just not fair.”

I’ve never seen a student go “big picture” and make an original argument. Wow! I want to do that. But when? It’s incapable of being ascertained with a requisite degree of certainty. Right now I’m still swimming in the primordial soup, while mutant Cerone has sprouted legs and crawled onto dry land.

* * *


Week Thirteen, Part 5 - Legal Research: Goodbye to the Bluebook

The wind whips around me as I walk from Notre Dame Law School toward DeBartolo Hall. I shudder and zip up the collar on my sweatsuit.

Today is the first of six final exams: Legal Research. Next week comes Legal Writing. Then at semester end, we will be tested in our substantive classes: Contracts, Torts, CivPro, Crim. It’s survival of the fittest!

I study the flashcards in my hand. Each one shows the proper Bluebook form for a different type of citation.
  • Federal appellate cases: Valdez v. Black, 446 F.2d 1071 (10th Cir. 1971).
  • State statutes: Minn. Stat. sec. 176.301 (1986 & Supp. 1987).
  • Encyclopedias: 62 Am. Jur.2d Premises Liability secs. 431-46 (1990 & Supp. 1995).
  • Law review articles: Richard A. Posner, Goodbye to the Bluebook, 53 U. Chi. L. Rev. 1343 (1986).

A mountain bike whizzes by, inches from hitting me. Negligence, I think. Sue all the bastards.

By 4:00 pm, the 150 or so 1L’s have assembled every other chair in the DeBartolo auditorium. It’s my second time here. Two months ago, I heard Phillip Johnson’s presentation, “Darwin on Trial: You be the Judge.” I wish I’d been created as smart as he: first in his class at U. Chi. Law, clerkship for Chief Justice Earl Warren.

The teachers for Legal Research file in: Dean Roger Jacobs, Patti Ogden, Dwight King. I imagine them as academic predators, looking to snare the weakest and dumbest of the 1L herd. They distribute the tests and we begin.

The exam has 100 questions: 50 true/false, 40 multiple choice, ten legal citations with a mistaken element. We have one hour to finish. Since there’s no fact pattern, the test feels more like undergrad.

About a third of the problems are straight-forward: mandatory v. persuasive holdings, research method options, cite differences between West and Lawyer’s Cooperative Publishing. The rest require some thought.

After 50 minutes I’ve gone through all the questions once. There are ten answers, however, I’m unsure of. I eliminate the obvious distractors and make the best choice from what’s left.

Walking out, it feels great to be done. Goodbye to the Bluebook! I think I’ve earned a B. If I had guessed on fewer questions, then I’d be hopeful for an A.

In sum, I’m proud of what I learned and feel confident in my ability to research a legal issue. For the first time in my life, the subject matter is more important than the grade. Perhaps I’m evolving into a higher-order student.

* * *


Week Thirteen, Part 4 - Crim: Rapist Beats The Rap

Thanks to cop shows and courtroom dramas, there’s one bit of law everyone knows: the police must advise criminal defendants of their basic rights. The Supreme Court case on point is Miranda v. Arizona.

In Criminal Law, Professor Tex Dutile sets out the facts. On March 13, 1963, Ernesto Miranda was arrested and taken in custody to a Phoenix police station. There the complaining witness identified him. Police officers questioned Miranda in an interrogation room at the detective bureau. Two hours later, he signed a written confession. At trial, a jury convicted Miranda of kidnaping and rape. He appealed. Miranda argued that before securing his confession, the police had not fully advised him of his Constitutional rights.

By a slim majority, the Supreme Court agreed, and ruled Miranda’s confession inadmissable.

When I read the opinion, I see Miranda as a loss for the government: a rapist beat the rap. Dutile, however, presents it as a compromise.

“Defense attorneys get warnings for every defendant,” he says. “Prosecutors can use confessions. And since Miranda requires specific safeguards, it makes for fewer Due Process violations, thus helping law enforcement.”

Dutile adds, “The day before Miranda was decided, the Supreme Court considered the voluntariness of a confession on a case by case basis. Was there adequate lighting? Was there AC? Were there magazines?”

We laugh.

“But the Supreme Court is ill-equipped to look at every damned case! So one advantage of Miranda is that it attempted to be a bright-line decision.”

Dutile calls on Jenny Zimmerman, who grew up in nearby Mishawaka, Indiana. “Why is a subject told, ‘You have the right to remain silent’?”

“Because of the Fifth Amendment.”

“Which part?”

“The privilege against self-incrimination. ‘No person shall be compelled to be a witness against himself.’”

“Good. Now, Ms. Zimmerman, what’s the second warning?”

“Anything you say can and will be used against you in a court of law.”

Dutile deadpans: “I like Frank Sinatra.”

The class laughs.

“And what’s the purpose of this warning?” Dutile asks.

“It lets the defendant know why he should keep his mouth shut,” says Zimmerman.

“Okay. And it inspires a feeling that ‘this is serious stuff!’ What’s the third warning?”

“You have the right to talk to a lawyer and have him present during questioning” says Zimmerman.

“Why all this talk about counsel?” Dutile asks.

“Part of the Sixth Amendment.”

“Does it buttress my right to remain silent?”

“Absolutely. When there’s an attorney present, the playing field is more level.” Zimmerman was a scholarship golfer at Michigan, so the sports metaphors come easily.

“And the fourth warning?”

“If you can't afford an attorney, one will be appointed.”

“Does it have to be immediately?”

“I don’t think so,” she says. “That wouldn’t be possible.”

“Correct. It might be three days later.”

A student in the back raises his hand. “Why should it be the responsibility of the police to tell a defendant his rights?”

“Well, in toto, the message of Miranda is not so much that you possess these rights, but that we’ll honor them. The assumption is that there’s intense coerciveness during interrogative custody. Coerciveness operates on my will, not my intellect.”

The student says nothing, so Dutile explains further.

“It’s not so much that the defendant knows his rights, but that he can’t be coerced. Protection against coercion is a Constitutional right. Nothing in the Fifth Amendment guarantees us a bright defendant.”

* * *

Week Thirteen, Part 3 - Ethics: Representing Scumbags

In Legal Ethics, Dean David Link asks the class, “Do you as a lawyer have a moral responsibility to represent the person in your office?”

Without waiting for an answer, he presents a series of facts. “A group of Nazi sympathizers, the National Socialist Party of America, wanted to march in Chicago. They applied for a parade permit, but didn’t receive an answer. Next they petitioned Skokie, Illinois, a city with significantly less bureaucracy.”

We laugh.

“It was predominately Jewish and had a number of Holocaust survivors,” Link says. “When the Skokie Council refused to issue a permit, the Nazis sued. "

Link swings his foot up on the desk beside him.

"Now, suppose the National Socialist Party wants to retain you. What’s your response?”

Hands shoot up all over the room.

Link continues: “Before you answer, note that representation of a client does not constitute an endorsement of his or her point of view. And remember that according to our legal system, availability of counsel is a good thing.”

We discuss the Skokie case in light of the major theories of ethics.

Utilitarianism seeks to maximize the social benefits and minimize the costs,” Link says. He calls on students to flesh out both sides. One benefit is that even Nazis can assert their civil rights, an evidence of strong democracy. On the other hand, there’s the pain of hate speech and the possibility of riots.

“As you can see,” Link says, “the benefits and costs are virtually impossible to value. You can’t put numbers on it very well.”

Rights theory has the basic issues of First Amendment speech and assembly. Link mentions that members of society have a right to privacy. And a right to live in peace. A student suggests “the right of lawyers to make sure no one misuses our skills.”

Link limits justice theory to “the fair distribution of the benefits and costs.” He says the problem with the theory is “depending on which choice you make, all the benefits or costs flow one way.”

Link says we as lawyers will have a responsibility to accept a fair share of unpopular case, sometimes pro bono, "for the public good.”

We look at theological ethics. “Christianity is based on a loving God. Ask yourself, ‘What is the most loving thing I can do here?’ This approach includes love for people you don't agree with.” He adds, “Notice that the religious perspective is a personal analysis. Mine may not apply to you because you have different values going on.”

Link asks us to raise our hands whether we would represent the American Nazi party in its attempt to secure a parade permit.

The vote is 34 yes, 30 no. I’m with the minority.

Link tells us that the earlier section voted 49 yes and 40 no.

A student asks Link what his vote would be.

“I would not represent the Nazi party in most cases,” he says. “Certainly not in Skokie parade case because my representation would lead to an unethical conflict of interest. Before coming to Notre Dame Law School, I was part of the Arlington County Human Relations Committee.” He tells a war story about his work there and the allegations of police dogs being set on workers.

“I still believe the Nazis have the right to a lawyer,” Link says. “In fact, their lead counsel from the ACLU was Jewish and quite anxious to be involved in the case.”

Amazing! How could a Jewish lawyer help anti-Semites further their cause and gain a platform to spread their doctrine? It seems beyond the pale. If the ability to separate emotionally and intellectually from a client’s point of view is necessary to think like a lawyer, I may be deficient.

I remember my grandma and how she fled from Turkey, her parents killed by the Turks. For me to represent a Muslim group advocating the Armenian genocide would be an insult to her memory.

Dean Link closes. “Unpopularity shouldn’t have any effect on you. Do what you know is right.”

* * *

Week Thirteen, Part 2 - Immunity Days

In his continual quest to remind me how feeble my mind is, Professor Joseph Bauer steers the CivPro discussion into the murky waters of supplemental jurisdiction.

“Supp J” is an umbrella term for both pendant and ancillary jurisdiction. In the margin of my casebook, I’ve written, “how to get other issues or parties into fed court.”

Bauer’s explanation is more precise. He says that pendant jurisdiction allows plaintiffs to pursue additional state-law claims in federal court by appending them to a related, federal question. We learn in United Mine Workers v. Gibbs that there must be a “common nucleus of operative facts” between the claims.

Ancillary jurisdiction is similar, but applies to additional parties involved in the same transaction or occurrence.

We turn to Owen Equipment & Erection Co. v. Kroger, a Supreme Court case decided in 1978. Bauer scans his list of remaining victims, then reads my name!

I’m shocked, both to be called on and that the Evil Genius has pronounced tuh-loy-uhn exactly right. My hands freeze on the keyboard.

There is no way I can answer questions on Kroger. Sure, I’ve read the canned brief. I even skimmed the case. But I don’t understand the legal issues! Not at all.

I have no more ability to discuss “whether a federal court in a diversity case may exercise ancillary jurisdiction over the plaintiff's claims against a third-party defendant who is a citizen of the same state” than I do quantum physics.

Unfortunately, Professor Bauer doesn’t realize this fact. "Several years after plaintiff Kroger amended her complaint to include a third party," he says, "the Supreme Court dismissed the action.”

I can feel him closing in.

“The Court held that with respect to the non-federal claim, the federal courts could not exercise jurisdiction.”

Bauer won’t even give me the pleasure of answering the factual questions.

“So, Mrs. Kroger has to start all over again. But where? State court?”

Bauer looks at me, waiting.

My voice is shaky. “Isn't it Immunity Days?”

Bauer waits a good ten seconds. “Yes.”

“And you’re a participating professor?”

He nods.

All week I’ve seen posters in the law school lounge:

bought to you by
Wednesday, November 15
Thursday, November 16

The small print explains that students can “buy” their way out of class participation by offering non-perishable food items to be used in Thanksgiving baskets.

“Brought two cans of SpaghettiOs,” I announce.

Bauer smirks. “Let’s have ‘em then.” He points to his right. On the floor I see a cardboard box the size of a small desk. It's empty.

“They're upstairs in my backpack. I wasn’t sure how immunity worked.”

“After class, make sure you get 'em here.”

“Yes, sir.”

Bauer looks back toward his list. All around the room, students rummage in their bags. Campbell’s soup. Del Monte corn. Ramen noodles. On each desk ledge across the lecture hall, we set our modern-day charms against Socratic torture.

“Looks like a supermarket,” he says.

We laugh.

“Okay, I’ll do the talking for a while,” Bauer says. “I was asking where Mrs. Kroger could file. In state court? The statute of limitations may have run.” He points us to a footnote in the decision. It says that Iowa law could bar an action in a state court, depending on the statute of limitations.

“In essence, the Supreme Court is saying ‘whether you proceed is not our problem.’” Bauer strokes his beard. “There’s something fundamentally troubling about this rule. Mrs. Kroger is S.O.L.”

We laugh. Sorry Outta Luck. Statute Of Limitations. Is he making a connection?

We look at the Court’s rationale again and Bauer finds it wanting. “Don’t give me a technical reason!” he says, apparently addressing the Supreme Court itself. “Give me something my sense of justice can understand!!”

Bauer concludes by telling us that if a similar situation happened today, a party would have at least 30 days to file in state court. “Of course, that’s no consolation to Mrs. Kroger.”

Class ends and as I shut down my laptop, students file past me. “Good job.” “Way to go.” “You’re the bomb.”

I walk back to my cube and fish out the SpaghettiOs. Terri bought them as a treat for Lauren’s lunch.

Sorry, Sugar.

By the time I make it back to the classroom, Bauer is gone. I drop my cans in the collection box, now full, thanks in small part to me.

* * *


Week Thirteen, Part 1 - Torts: Naked Before The World

With the exam in Legal Writing fast approaching, I’ve cut back on my preparation in the substantive classes. There’s not enough time to read and brief every case. Apparently, I’m not the only one.

In Torts, we’re stuck on the third element of negligence: causation. Our issue for today is “intervening cause.” I write in my notes: “an independent act which contributes/causes P’s injury.”

Professor Charles Rice calls on student Tom Longo to discuss Kelly v. Gwinnell, a 1984 case from the New Jersey Supreme Court.

Longo doesn’t bother to stand up. Instead he calls out from the back, “Sorry, sir. I didn’t get to it.”

Yikes! It’s the first time all year a prof has caught a 1L coming to class "naked," that is, with no prep.

Since Rice doesn't use a seating chart, he looks about for the source of the disembodied voice. No luck. “Mr. Longo, show yourself!”

No one ever jumps up in Torts, but Longo sets a new record for sluggishness. The chair slides out and his legs straighten. Then he tilts his torso upward like a senior citizen with arthritis.

We all turn to look. Since Longo’s in the back center of the lecture hall, the people in front and middle have to twist in their seats. Those of us on the wings crane our necks.

Longo has on jeans and a striped polo. He wears his hair longer than most, kind of Euro. It doesn’t touch his shoulders, but the strands in front are long enough to lie down when combed straight back. I’ve talked to Tom a few times, and know he’s a Long Island native and undergrad Domer.

“Mr. Longo,” Rice says. “Not having any idea about a case is no impediment to discussing it!”

We laugh and Longo blushes, red as a flashing beacon on the Jersey shore.

Rice recites the facts. The plaintiff, Marie Kelly, was injured by a drunken driver in a head-on collision. She sued not only the motorist (Mr. Gwinnell) but also the social hosts (Mr. Zak and his wife) who had served him two or three drinks. The issue is whether the Zaks’ independent act was a proximate cause of Kelly’s injury.

Rice asks, “May a social host be liable?”


“Mr. Longo, before you blurt out an answer, consider the elements! Does the law impose a duty of care on social hosts not to serve liquor to the point of intoxication.”

“Not sure. There’s a duty for bars not to serve someone who’s already drunk.”

“Good. Commercial sellers have such a duty,” Rice says. “But what about social hosts?”

Longo doesn’t know.

In this case, the New Jersey court imposed a duty. It wrote, “In a society where thousands of deaths are caused each year by drunken drivers, where the damage caused by such deaths is regarded increasingly as intolerable, where liquor licensees are prohibited from serving intoxicated adults, and where long-standing criminal sanctions against drunken driving have recently been significantly strengthened to the point where the Governor notes that they are regarded as the toughest in the nation..., the imposition of such a duty by the judiciary seems both fair and fully in accord with the State’s policy.

Rice tells us that social host liability is a minority opinion. Most states don’t agree.

“What about the Domer rule,” Rice asks, “where an underage student may drink in his room as long as no one sees him and there’s a bag around the bottle?”

We laugh. How does Rice know?

“It’s designed to encourage solitary drinkers,” Rice deadpans.

“No liability,” Tom says.

“Don’t give a conclusion! Approach the question like you would on an exam – from the top down. Duty, breach, causation, damages.”

That done, Rice questions Longo on whether bartenders may be held personally liable. He says their main responsibility is not to serve liquor to someone already intoxicated.

“Although the book doesn’t agree,” Rice says, “in some jurisdictions a bar could be liable to the drunk driver himself for injuries suffered.”

A student asks about underage drinking and bartender liability.

“In that situation, it’s ‘Katie, bar the door,’” Rice says.

Longo’s been standing for so long he’s no longer blushing.

Rice lets him sit.

I expecting to hear something like, “Make sure you never appear in New York Municipal Court unprepared.”

Instead Rice says, “Thank you, Mr. Longo. You were magnificent.”

* * *


Week Twelve, Part 8 - ‘A’ Wish

On Saturday it snows hard, and the wind picks up. Out the back window, I can see branches of our blue spruce swaying back and forth.

The house is quiet though. Terri works in the basement, churning out sale proposals for AT&T. Stephie and Lauren are gone for weekend visitation. There’s not even a football game to distract me, as the Irish have a bye week.

In the morning I brief my cases for Monday, then study Legal Research all afternoon. The final exam – our first – is on Thursday. Notre Dame profs are stingy graders, I've heard, and this news worries me. Since kindergarten, I’ve been on the right edge of the bell curve and want to keep it that way.

I sit on the floor with my back against the leather couch. On the coffee table in front of me, I spread out my notes and the supplemental texts. To the right is a laptop. I review my notes from Dean Roger Jacobs on the six types of secondary sources. Do I need to know that CJS stands for Corpus Juris Secundum or that the Kresge Law Library subscribes to 700 periodicals and indexes? Doubt it, but I tuck the factoids away just in case.

Patti Ogden’s comment on the last day of class rings in my head: “There's no denying that some of you will score higher than others.”

I want A’s. Only A’s. “The golden apples of the sun,” to borrow a line from Yeats.

Like it or not, grades reflect a student’s intellectual ability and academic quality. I’ve always had this belief. It makes me study and fuels my acute dislike for low marks. And, I admit, throughout high school and college, grades were more important to me than what I learned. By far.

I break for supper, then study another two hours.

Suddenly the power goes off and the house darkens. The storm must have toppled some power lines. My laptop, now on battery, glows like a radar screen. An hour later, however, it too is out of juice.

Terri joins me in the living room. The house is getting cold. I move our biggest candle to the coffee table and page through Dworsky’s User’s Guide to the Bluebook. Like a young Abe Lincoln, I study law by the flickering light.

* * *


Week Twelve, Part 7 - Legal Ethics: Mile Wide, Inch Deep

Of all my classes, it seems that Ethics is the least academic. The lectures by Dean David Link lack the depth and nuance of other profs. By now, their shallowness is getting irksome.

On Wednesday, Link starts class with a question. “Is there a ethical perspective that coordinates the theories of utility, rights, and justice?”

We wait. The question is clearly rhetorical.

“I believe there is,” Link says, “and it’s been developed by a fellow named Kultgen. He’s a modern philosopher who does professional ethics, although what I’m about to give you is really Link-on-Kultgen.”

He writes on the board: “A lawyer professional ought to perform that act which on reasonable reflection recognizes all moral rights and responsibilities, and maximizes the net benefits of the moral community, and distributes them fairly."

Link turns back to the podium and steps to his right.

Oh, no. Here it comes.

He swings his leg high. Thump. Link plants a shiny shoe on the desk.

“‘...On reasonable reflection...’ You gotta look at each situation by itself. Don't just come up with solid rules like ‘Never lie.’ Maybe it’s justifiable under several circumstances, such as Atticus Finch protecting Arthur 'Boo' Radley.”

Whoa! Slow down and elaborate. Truth-telling is a major challenge for lawyers. I want to call out, “Dean Link, give us your definition of a lie! If there’s a hierarchy of values which permits lying, flesh it out. Which principle is paramount?”

Instead Link powers ahead. “‘...Recognizes all rights and responsibilities...’ This is a reflection of moral rights theory.”

Next phrase. “‘...Maximizes the net benefits...’ Here is a sophisticated system of utility.”

We move on. “‘...Of the moral community...’ Look at all persons affected by an action, transaction, or ethical dilemma; not just you and the client.”

Link concludes. “‘...Distributes these net benefits fairly...’ Justice theory.”

That’s it on Kultgen. No application to the complex and often ambiguous dilemmas that lawyers face. No perspective on how this coordinated approach might better keep attorneys from breaching the boundary between right and wrong.

I start to think that a better name for the class would be Ethics Light.

* * *


Week Twelve, Part 6 - Follow The Money

Late on Thursday afternoon I interview Andy McLean, NIBCO's manager of the Rocky Mountain region, for my article in Connections. Then I type away for three hours until the story is done.

The Denver airport sounds impressive – bigger in size than all of Manhattan. To build it cost four billion dollars. Most importantly, for my article anyway, the contractors bought over $500,000 worth of NIBCO’s ball and butterfly valves.

The way I figure it, the money flow goes like this: the airport authority pays a half million to NIBCO, of which $75.00 goes to me, all of which I send to the University of Notre Dame. No wonder the Dome is golden.

As I finish up, Terri comes down into my office. I show her what I’ve written.

“Shouldn’t you be studying?” she asks. It’s a gentle scold.

I stutter a bit. “Terri, I’ve wanted to be a lawyer for, what, one year? I’ve dreamed of being a writer since I was old enough to read!”

She sits on my lap and puts her arms around my neck.

“But, you’re right,” I say. “Starting tomorrow I’ll hit the books hard.”

We kiss.

“And who knows,” I say. “Maybe NIBCO will need a law clerk this summer.”

* * *


Week Twelve, Part 5 - Crim: Detecting Lies

In Criminal Law, we look at Schmerber v. California, a 1966 Supreme Court case. The issue is whether involuntary tests to determine the blood-alcohol content of a drunk driver violate the Fifth Amendment’s right against self-incrimination. The Court held in a 5-4 vote that the withdrawal of blood is “non-communicative in nature” and thus is not subject to privilege.

Dutile calls on Anthony Wisniewski, a brash East Coaster from the Catholic University in D.C. He’s wearing a long-sleeve t-shirt and jeans.

The questions progress from simple to complex as Dutile explores the gray area between testimonial and physical evidence. From three rows away, I can see the sweat on Wisniewski's forehead. Finally, after a string of "I dunnos," Dutile asks Mr. Wisniewski to opine on the holding.

Schmerber is BS!” Wisniewski barks.

The class laughs.

Dutile’s eyes widen. “An unhappy choice of words, but go on.”

“If the involuntary drawing of blood isn't forced self-incrimination, what is? There’s no practical difference between giving self-incriminating testimony and providing self-incriminating evidence," Wisniewski says. "The 5th Amendment should cover both.”

Dutile broadens the topic. In most cases, he says, physical evidence is not protected by the Fifth. A suspect may be ordered to give fingerprints or, like O.J., his hair fibers. The Fifth Amendment only protects the defendant from giving testimonial evidence.

Dutile raises the issue of lie detector tests. Since the defendant is answering questions, the answers are clearly testimonial. But the polygraph is also measuring physiological responses.

“Please note,” Dutile says, “that lie detection depends on what the defendant perceives to be true. Suppose Mr. Wisniewski thinks the sun rises in the West, but says ‘the East.’ His blood pressure will go up and the polygraph will detect a lie. There is no ‘reality database’ attached to the polygraph.”

Dutile says lie detection is more accurate than formerly thought and may be recognized in some courts. For the most part, however, polygraph results are inadmissible. This exclusion includes even the physiological responses that the expert observes: pulse rate, temperature, perspiration.

“At first blush you might say, ‘That's physical stuff.’ But if we accept the notion that testimonial means ‘I am affirming something true or false,’ it’s relatively easy to make the case that polygraph tests come within the Fifth.”

Dutile adds, “Now Mr. Wisniewski, that doesn't mean you ought to let your client sit for one with the prosecutor. Even though the results may not be admissible, the answers he gives might be considered testimony.”

The period ends. I deviate from the truth just a bit and tell Anthony he did great. Analogous to Schmerber, the class was an involuntary test to determine the brain-information content of a stressed 1L. The poor guy deserves some praise.

At home later that evening, I put my casebooks away and walk upstairs to tuck little Lauren into bed. She’s just had a bath. Her hair is wet and shiny, dark against the pink pillow.

We say our prayers.

“You look pretty.” I kiss her on the cheek.

Lauren smiles. "You're handsome.”

“Are you telling the truth?” I ask, fishing for another compliment. “I can give you a lie detector test and find out.”

“Well, except for that bald spot." She puts her hand on my forehead.

“Thanks, Honey. We’ll go with your first statement.”

* * *


Week Twelve, Part 4 - Career Planning for 1L’s

I've given no thought to a summer job until I page through the Career Services Handbook. Chapter 4, titled "First-Year Information," lists five opportunities for summer employment:
  • law firms,
  • government agencies,
  • public interest employers,
  • judicial internships,
  • corporate settings.
I gotta work?? Groan! I was hoping to hide out and write fiction. Now it looks like I won’t be unpacking the novelist life anytime soon.

I read on. "It has become increasingly important to begin career planning in your first year of law school. Because the number of students competing for jobs is increasing, you should strive to distinguish yourself early in you law school career."

Distinguish yourself. Ha! I'm distinguished, all right – as in thirty-two years old and flecks of gray.

The handbook's paragraph on corporate work interests me. "Never say never!" it says. "The opportunities are slim, but they're out there. In the past, corporations have not jumped on the summer clerkship bandwagon. However, with the increasing cost of litigation, many companies are looking in-house for their legal work. But it will take some effort by the industrious student to seek out the opportunities."

Coincidently, yesterday I received a phone message from NIBCO Inc., a Fortune 1000 company in nearby Elkhart. The editor of their in-house magazine, Connections, wondered if I were available on short notice to write an article.

I put aside the handbook and and call her back from a phone in the student lounge. She wants a feature on NIBCO's role in supplying plumbing valves and fittings for the new airport in Denver. The deadline is a week out.

I ask whether NIBCO has a general counsel.

"Tom Eisele," she says. Law degree from Valparaiso, MBA from Notre Dame.

"Any other in-house attorneys?" I ask.

"Sue Toth, from ND Law."

Against my better judgment, I commit to do the article. With the Legal Research exam next week, time is at a premium, but here's a chance for an industrious student to distinguish himself.

* * *


Week Twelve, Part 3 - Legal Research: Bigamy in New Jersey

Our last day of regular class in Legal Research is devoted to review. Next Thursday, all 1L’s will take the final exam en mass.

Patti Ogden, our instructor, warns us that the test will be challenging. The 100 questions may come "from anything we’ve covered the past eleven weeks." Lectures. Handouts. Assigned readings. Small group work. For a one-credit class, there’s a mountain of material.

During the review, I’m amazed at how much we’ve learned. When Ogden refers to the library’s reporters and digests, I understand their purpose. I feel comfortable with shepardizing, that is, using a citator to make sure a case is still good law.

In retrospect, the research assignments each week forced us off the main path of class-to-cubicle and into “the stacks” and “compressed storage.” The lectures provided information that didn’t come up in other contexts. We learned that while all Supreme Court cases are reported, the rate of appellate decisions being published is lower: only 25-65 percent. Federal district court cases are reported even less – 10-25 percent.

While Ogden talks, I make sure I have all my weekly assignments, then arrange them in chronological order. They were hard, without a doubt, but doing them made me feel I could research like a lawyer. I was able to find statutory authority on the issue of “Can a person in New Jersey be found guilty of bigamy if one of his two marriages were a common-law marriage?” And, “If a bride calls off her wedding, can the ex-fiance sue for breach of promise to marry and return of the engagement ring?”

I smile. Will I one day have paying clients with these problems? It seems inconceivable.

Ogden ends class by telling us that the average mark on the final exam is a B. “You're all great people,” Ogden says. “But there's no denying that some of you will score higher than others.”

* * *


Week Twelve, Part 2: Making Partner

I wander into the Career Services Office at Notre Dame Law School. At one end is a reference library and newspaper rack. Beside it an old photocopier.

Two students, a guy and a girl, are paging through loose-leaf binders at the faux wood table. Both have Constitutional Law casebooks next to them. Upperclassmen, I figure. They slide their chairs forward and let me slip by.

I pull a recruiting brochure off the shelf. On the cover is a night view of the Los Angeles skyline. Inside it describes “Career Opportunities” at Latham & Watkins, a LA-based firm with 850 lawyers worldwide. Hong Kong. London. Moscow. Tokyo. Singapore. I imagine myself as a Latham lawyer, working in “high-stakes litigation” or “complex, sophisticated transactions.”

“You still clerking downtown?” the guy asks.

“Twenty hours a week,” she answers.

“Trying to make it hard on yourself?”

“Poverty does strange things to an individual.”

I sit down and skim the testimonials from Latham associates, all of whom have bright smiles and thick hair. Jeffrey B. Greenberg, a Northwestern Law grad, writes, “We are one of the few firms in the country doing extensive utility restructuring work. The deregulation of the electric utility industry involves tearing down massive existing legal structures and replacing it with something entirely new.”

Hmmm. I wonder if that’s a good idea.

The girl at the table says Dean Link is writing her a letter of recommendation.

“He’s probably great at that,” the guys says.

“How would you know?!”

“Dean Link has always struck me as something of a bull-shitter.”

She slaps him on the arm.

“Seriously. Most of what he says is to put the law school or the faculty and student body in a better light. But then I think, maybe that’s just his job.”

“Exactly!” she says.

“But he seems to do it for everything.” The guy lowers his voice an octave. “When I played Bookstore Basketball, there were two Division I players on my team.”

They get up to leave, ignoring me – a lowly 1L – the whole time.

By now I’m at the page entitled “Making Partner.” The brochure says associates are considered for admission to the partnership after eight years. The Associates Committee presents its recommendations and the partners vote on each candidate. I expect a paragraph about “henceforth true riches await them.” Instead there are individual pictures of five middle-aged men: the Latham & Watkins Executive Committee.

I put the brochure back and walk to the bulletin board outside the main entrance. In addition to job postings and career information, there’s a photocopy of a newspaper article from Business Journal. It’s titled, “Glut of lawyers in Denver leaves new grads among underemployed.” The author interviewed six greenhorns who have been unable to get jobs.

One of them, Tamatha Blase, is a graduate of Washburn University School of Law in Topeka, Kansas. She decided to “hang out her own shingle after sending dozens of resumes and landing only two interviews.” To pay the bills, she tends bar at night.

The author writes, “Her law-school reveries of becoming a glamorous corporate attorney working in a posh skyscraper on high-profile cases came crashing down. And the realities of long hours and potential ethical conflicts set in.”

I grab a Career Services Handbook from a large stack and head to my cube. With so much at stake, I better start studying.

* * *


Week Twelve, Part 1 - Torts: Palsgraf

Before we launch into the most famous torts case ever, Palsgraf v. Long Island Railroad, Professor Charles Rice makes an announcement. “On Thursday there will be no Torts anywhere.” He’s flying to Rome to view the induction of a former student into the Legion of Christ.

I hear happy murmurs around the classroom. Unlike other profs, Rice doesn’t make up missed classes. In our closed universe of study, class, and Notre Dame football, we now have eight hours of unexpected time.

Rice starts Palsgraf by saying, "This whole deal was pretty bizarre."

He’s right. The facts amaze us all.

Mrs. Palsgraf, the plaintiff, purchased a ticket from the Long Island Railroad. While she was waiting on the platform, two men ran to catch a train as it was pulling away. The first man jumped aboard. A railroad attendant helped the second by pushing him onto the train. In the process, the man dropped a package of fireworks which exploded. The blast shook the area, causing some scales to fall on Mrs. Palsgraf at the other end of the platform.

Palsgraf sued and was awarded damages for her injuries. The railroad appealed and won.

Rice calls on a student near me. Louise stands up. She’s wearing a jean jacket and matching pants. Around her waist hangs a tie-dyed wrap, purple and white. Her hair is pulled back in a gold clip and glitter barrettes.

Rice asks her, "Why did the railroad win?"

"Because the injury was not foreseeable," she says.

"Was it a matter of fact or of law?"

Louise hesitates and Rice stares at her, his "guess antennae" twitching.

"Of law," she says.

"Good. Whether or not there's a duty is a question of law." On the board he writes the elements of negligence, DTY, BRCH, CSTN, DMGS, then points at the first group of letters. "According to Justice Cardozo, a duty is owed only to the foreseeable plaintiff. So it's a limited duty. Have the courts generally picked up this aspect?"

"I believe so," Louise says.

"Yes, they have. Now, what was foreseeable when the railroad worker helped the terrorist with the package?" Rice asks.

"That he might drop it or break something."

"What about the firecrackers?"

"Unforeseeable," says Louise.

"Good. In Cardozo's opinion there are two issues: duty and causation. He's strict on foreseeability and injury. But once you have breached duty, causation is practically unlimited."

Louise sits down.

"No, no." Rice barks. "Keep playing. This case is an intellectual toy."

Louise stands back up and we turn our attention to the minority opinion.

Rice says that we have the same two issues with Justice Andrews: duty and causation. "What's his position on each?"

Louise rubs her chin with slender fingertips. She wears no make-up or nail polish. "As to duty and causation, Andrews is the opposite of Cardozo."

Rice smiles at the truism. "You're right," he says. "Andrews is broad on duty, restrictive on causation. Sum up Andrews on duty."

"If somebody gets hurt through your conduct, you owe them a duty."

"Good. But as to causation, how does Andrews limit it?"

"By but-for?"

"Is that a guess?" Rice asks.

"An educated one," she says. Her chutzpah draws a laugh.

"What is this, Jeopardy? Some day in New York Municipal Court are you going to answer a judge with a question?" Rice stares at Louise until her head drops. "Look at the shopping list on the bottom of page 210," he says.

"It's limited by proximate cause."

"Keep going."

She reads, "Whether the causation is but-for, natural and continuous, direct, foreseeable, or remote in time or space."

"Have courts picked up on this?"

"I'm not sure," she says. Rice has tamed Louise, at least for the moment.

"Just as courts tend to treat duty and foreseeability according to Cardozo," Rice says, "they tend to make the Andrews catalog a test for causation."

Rice steps back to the podium and leafs through his notebook. Louise sits down.

Rice thrusts his chin her way. "Now, Louise." She stands back up. "Here's an old New York case. A driver swerves off the highway and tears down part of a pasture fence. He's negligent. The cattle stray. That evening the farmer goes to round them up. He falls in a hole. Was his injury foreseeable in terms of proximate cause?"


"No? What are you, some kind of flinty, stone-eyed Ayn Rand afficionado? Don't you want this man to be whole?"

She laughs. "Falling in a hole doesn't seem foreseeable."

"The trial court agreed and threw him out, citing Palsgraff," Rice says. "But the appellate court reversed.

"So I was right either way?" she asks.

I'm amazed at her moxy.

"Or wrong," he says. "How ‘bout this one. The defendant, a man, operates his auto in a negligent manner and causes head injuries to a three-year-old boy. The boy becomes emotionally disturbed. Seven years later, he shoots the plaintiff. Is there proximate cause?"

"Definitely not. Remote in time or space."

Rice agrees. "One more. The defendant negligently obstructs the sidewalk. Plaintiff is a pedestrian – not a mountain goat. He walks around the obstruction and gets hit by a car. What other facts do we need to know, Louise?"

"Was there another way around?"

"No, there wasn’t," says Rice.

"Was it a country road?"

"No, 34th Street in New York.”

Rice never does tell us how the case came out. Class ends with us still trying to ferret out the facts. "Make sure you know the Andrews list of ingredients for causation," Rice calls as we pack up.

I tell Louise she did great.

"Worst experience of my life. I was standing up for years."

"But you're golden for the rest of the semester. Rice won’t call on you again."

"If he does, there’ll be a new member of the castrati."

* * *

Week Eleven, Part 7 - Legal Theory Into Practice

If making arguments is the sine qua non of being a lawyer, I’m soon able to use my new-found legal muscle.

On Friday afternoon after my last class, I drive to Overhead Door Company in Mishawaka. There I purchase a garage door opener so that Terri and I will both have one.

Once I get home, however, it seems the transmitter unit in the opener is set incorrectly. The garage door won’t open when I push the button.

I call Bill, the clerk at Overhead Door, and he explains the setting adjustments I need to make. Wella! The door goes up and down like new.

Quite proud of my technological prowess, I test the garage door a half dozen times. Then, suddenly, it won’t close.

I call Bill again.

He says my continuous use has burned out the receiver unit on the motor!

I drive back to Overhead Door to get a replacement part. Bill tries to charge me the full price, $15.00.

“Can't we make a case that I'm not totally liable for this problem," I say. Bill is tall enough to install an overhead door without a ladder, and I’m on eye-level with the ballpoint pen in his pocket.


"I know I’m to blame in part, but don’t you agree there’s concurrent causation?”


But-for the transmitter not being set right originally, this wouldn't have happened.”


“How about dividing the fault,” I suggest. “I'm willing to be liable for half.”

“All right,” he says. “That’ll be $7.50.”

* * *


Week Eleven, Part 6 - Torts: Latin For Lawyers

In Torts, Professor Charles Rice is chewing through case law at an amazing pace. For the week, including a Monday make-up class, we read and brief 19 appellate decisions. For the most part, the cases focus on the causation element of negligence.

We discuss post hoc, ergo prompter hoc: the fallacy of concluding that since Event B happened after Event A, A was the cause of B.

Then we look at the sine qua non rule: “the act of the defendant without which there would not have been a tort.” Rice calls it “but-for causation” and says it’s the first question in determining liability.

“For example, ‘But-for defendant’s LF, would plaintiff’s house have burned down?’”

We looked puzzled: LF?

“Little Fire,” he says, “as opposed to ‘BF’ – Big Fire.”

We all jot down these symbols, as if they’re vital.

“Suppose Abel starts LF-1 and Baker starts LF-2. Little Fires join together in BF which burns your house down. Who’s liable?”

Several students struggle to answer.

Rice waits. “What else do you need to know?” He answers his own question. “Whether each fire is a substantial factor!”

We nod.

“If so, there’s concurrent causation,” Rice says, “and both A and B are liable. But if LF-1 would've just died out, there’s no liability for Abel.”

Class ends after Rice gives us an overview of market-share liability.

I head home about 6:00 p.m.

As we get supper ready, Terri asks me how school was.

“We learned about but-for causation, sometimes referred to as sine qua non.” I let the Latin roll off my tongue. “To prove the defendant negligent, the plaintiff must show that the defendant had a duty to be careful. That he breached the duty. And but-for the breach, there wouldn't have been any injury.” I’m ticking off the elements on my fingers.

“And?” she says.

“And I was thinking about you.”

She puts down the potato peeler.

“But-for you telling me about ND's reputation for great lawyers, and but-for you reviewing
my personal statement, and but-for you nixing my idea of being a court reporter, I wouldn’t be at Notre Dame Law School.”

“Thanks,” she says. “I did because I love you.”

“Oh I didn’t mean it like that,” I say, poking her in the ribs. “I’m looking for someone to blame!”

* * *


Week Eleven, Part 5 - CivPro: Let’s Party

We have a party on Wednesday in Civil Procedure, although the class doesn’t begin that way. Professor Joseph Bauer starts the hour by reviewing subject matter jurisdiction. For our purposes, this doctrine concerns a federal court's ability to hear a case on a specific subject.

We first look at cases which raise a federal question, that is, there's “a dimension of Constitutional law to the claim.” For example, Bauer says, the plaintiff alleges his 14th Amendment right to due process was violated.

The second type of case in federal court arises via diversity jurisdiction. "DJ" occurs if the parties come from different states and the amount in controversy exceeds $50,000.

Bauer asks, “Now suppose A is from Indiana and B is from New York. A has two claims in her complaint. Count One is for $30,000; Count Two is for $40,000. Is it permissible for A to add up her claims to reach the minimum?” He calls on Rafi Sherwin, an elite weightlifter and PolySci major from Ohio State University.

“Yes,” says Rafi.

Bauer agrees. “A single plaintiff may aggregate all her claims. But suppose A has a claim against X for $30,000, and B has one for $40,000. Does this meet the amount in controversy requirement?”

“No,” says Rafi. He’s quick with his answer, like there’s no doubt.

Bauer tests him further. “Suppose we have common facts. Let’s say A is the wife and B is her husband. While riding in a car, they’re hit by X. Wife's injury is $30,000. Husband is asking for $40,000. May they aggregate?”

Rafi waivers. “No?”

“Are you asking or telling me?”


Before Bauer can respond, an upperclassman with a sheet cake is standing at the doorway. A few students start in with Happy Birthday.

Bauer ignores them. “You’re correct, Mr. Sherwin. Even though there are common facts, A and B may not aggregate since their claims are separate and distinct.”

We all begin to sing, drowning Bauer out.

He smiles and waits for us to finish. “I sense you don’t want to talk about amount in controversy.”

We clap, and start eating the cake that’s been passed down the row.

A student raises his hand and asks Bauer how old he is.

“When you get my age, you’d rather not say.”

“So it’s an amount in controversy?”

Bauer laughs. “Getting older isn’t much fun, but it beats the alternative.”

Several gifts get passed forward from the middle of the room. The first gift is a blue polo shirt. To the right of the buttons is “95 U.S. 714 (1877).”

“Ah, yes, Pennoyer.” Bauer reflects on his favorite case. “Food for the soul.”

He opens another gift: a pair of red underwear. Bauer holds them up. Stitched on the fly are the words “Personal Jurisdiction.”

Students laugh and cheer. “Woo-woo.”

“The best brief I’ve seen all year,” he says.

More applause.

Before class ends Bauer thanks us for our diligence and attentiveness this semester. He points to the underwear. “I know I'm a pain in the ass,” he says, “but it's intentional.”

* * *


Week Eleven, Part 4 - Safe At Home

Halloween is dark and overcast, and I’m worried about Terri, who’s due to fly in from Florida via Detroit. She has scheduled an early flight in order to go trick-or-treating with Stephanie and Lauren, ages 7 and 5.

About 5:00 p.m. the phone rings. Terri says her flight to Detroit was fine, but then she transferred to a prop plane with 20 seats. It traveled all the way to South Bend, but couldn’t land because of the fog. “So the stupid plane turned around and flew back to Detroit!”

I tell Terri not to worry. It’s cold and rainy. As for trick-or-treating, the girls won’t stay out long anyway.

At 9:00 p.m. Terri finally arrives home. She sits with the girls in front of the fireplace and helps them count their candy. Then she tucks them in bed.

I pause at Lauren’s door and watch as Terri tucks her in. Then I go in to say our bedtime prayer. “Now I lay me down to sleep...”

I stand up to leave.

Lauren asks, “You know what I want?”

“Tell me.”

“A p-u-p for Stephie and me.”

“Why’s that?”

“Because they're so playful.”

“Blue’s a fun dog,” I say, referring to our aging golden retriever.

“Yeah, but pups are more hyper.”

“Harder to take care of.”

“I’d still like one.”

“We’ll see.”

Lauren changes topics. “Before you're born, you're up in heaven, but you can't remember it.”

“Then what happens?” I ask.

“You come down to earth.”

“Wow, you’re smart.” I kiss her goodnight, then go to my bedroom.

Terri chuckles about Lauren’s penchant for spelling words out loud. “Looks like I’m M-o-m until further notice.”

We talk about getting a puppy. I object. Terri’s ambivalent.

“Mark, do you had any idea how much guilt I feel for not getting back?”

Shikata ga nai. It couldn’t be helped.”

I should be the one getting the girls dressed up and taking them from house to house. Stephanie and Lauren need me!”

“They’re doing fine.”

I tell Terri about Lauren’s philosophy of where our spirits come from, and her mood lightens.

“It’s like Notre Dame Law School,” I say. “Before I got accepted, it was heaven. But I can’t remember it. And now I’m being born as an attorney.”

Terri laughs. “Let’s hope there are no complications.”

* * *


Week Eleven, Part 3 - Legal Ethics: Supreme Being

In Ethics, Dean David Link introduces the major approaches to right and wrong. He lists them as utility theory, rights theory, and justice theory.

“You may have a feeling of ‘this is the right thing to do’ or ‘it's wrong to lie,” Link says. “But you can also reason to what is right and wrong.”

We look first at utilitarianism, defined as “the greatest good for the greatest number.” Link says, “You evaluate actions by balancing the benefits and costs. Therefore, you might label utility as ‘net benefit theory.’”

He adds, “Aside from being intuitive, it’s an efficient system. Just line everything up and subtract. And utility conforms to political theory. As a general rule, government ought to produce the greatest good for the greatest number of people.”

We discuss the obvious problems of utility theory. “Some costs or benefits are impossible to measure,” Link says. “In fact, sometimes it’s even hard to decide whether something is a cost or benefit.”

The second approach to ethics is justice theory. Distributive justice. Capitalist justice. Socialist justice. Libertarian justice. Compensatory justice. Retributive justice. Link says a few words about each, a Cliff Notes overview.

Link says there are moral conditions put on whether someone may administer retributive justice. “You can't be punished for ignorance or inability. There must be a certainty that the person has done wrong. And any punishments imposed must be consistent and proportionate.”

Hmmm. “You can’t be punished for ignorance.” I’m going to make sure my answer on the final exam includes this phrase, underlined.

The final theory of ethics is rights theory. This rubric includes legal, moral, human rights. Under moral rights, we examine Immanuel Kant’s categorical imperative. “An action is morally right in a situation if the reason for carrying it out is such that you would want every other person to act in the same way with the same reason.” It’s analogous to the golden rule: “do unto others as you would have them do unto you.”

As to human rights, Link says the best listing is the Universal Declaration by the United Nations. On the board Link catalogs the basics: the right to life, self-determination, freedom of movement, food, shelter, clothing.

There are economic rights as well: property, work, just remuneration, even a right to rest and leisure.

“Of course,” Link says, “this final right does not attach during your first year at Notre Dame Law School.”

Link closes. “Beyond the reasoning of philosophy is theology. It provides another way to decide whether an action is right or wrong. Theology is based on the idea of a Supreme Being who cares whether we do right or wrong. Now, various religions have different moral traditions. Judaism is rules orientated; Christianity talks of love. But both these theologies give a prioritization. Utility is down here. Above that justice theory. Then moral rights. This is the order based upon reasoning and belief in God.”

As class ends, I shut down my computer. It was a good lecture, I think. Link cares about the topic and has given it some thought. I like that we started out with the big picture instead of simply looking at the Model Rules of Professional Conduct.

What I’m most concerned with is whether becoming a lawyer will change my approach to right, wrong, and the gray area in between. The temptations are great, I’m sure, given the money and power that accompany the legal profession. I don’t want to become skilled in double-talk, capable of a tax dodge, or inclined to pad my billables. It seems far off, but someday I’ll be an attorney looking in the mirror. I hope I won’t regret what I see.

* * *