Week Five, Part 7 - Crim: Plain View

The last class on Friday is Criminal Procedure. It’s been a grueling week: 24 cases to read and brief. I’m tired, but looking forward to Saturday. A former colleague of mine from Pillsbury has arrived in South Bend. Tomorrow we’ll visit Notre Dame stadium to watch the Irish play the University of Texas Longhorns.

Professor Tex Dutile sets out the legal doctrine of “plain view,” the right of police officers to seize readily apparent evidence or contraband. Then he calls on a Kevin Hansen, a tall red-head sitting near the front. Dutile checks Hansen’s name off a list. There’s no doubt. Dutile’s going to grill all of us before the semester ends.

“Mr. Hansen, suppose I have a warrant to search the bottom drawer of the desk in your living room. As I walk in the front door, I look down the hallway into the kitchen and see 400 glycine bags of white powdery substance... labeled 'heroin.'”

The class laughs.

“Can I seize them?” Dutile asks.

“Under plain view, that would be okay,” Kevin says.

“No, no, no! Think like a lawyer. Show us your warm zeal for the law!”

Kevin grimaces and strokes his beard. He looks back and forth between his laptop and a brief of Horton v. California, a 1990 Supreme Court case. In Horton, the petitioner argued that the trial court should suppress evidence a police officer discovered in plain view because the search warrant did not mention the particular items.

Kevin regroups. “The warrant gives you legal justification to be in my house. It’s apparent that the heroin is illegal. Therefore, seizure is okay.”

“That’s better!” Dutile says. “Now suppose I look through the kitchen window. In your garage I see an illegal apparatus for distilling alcoholic beverages. Can I seize it?”

The hypos come rapid fire, each testing the boundaries of the basic doctrine. “How about the pirated tapes of the Osmond Brothers I notice in your bedroom? The vial of pills on the bathroom sink? What if I lift the turntable on your expensive stereo... which seems out of place in a badly furnished apartment... and discover that the serial number matches one on my stolen property list?”

We never get a definitive answer.

Dutile makes me laugh, but I wish he'd lecture more -- and question less -- about the topic at hand.

* * *

Week Five, Part 6 - A is for Arbitrary

I sit in the library stacks at Notre Dame Law School toiling over my office memo for Legal Writing. It’s my analysis of a negligence lawsuit brought by a fictitious couple, the McGinley’s, whose seven-year-old son almost drowned in the neighbor’s hot tub.

Usually when I write, I work on a sentence until – click – it feels right. Then I fiddle with the next one. Soon I’m done with a paragraph. Before long, a page.

With legal writing, however, the words won’t fall in place. I’m uncomfortable with the vocab and the doctrines. Maybe Professor Phelps was right when she said that writing the office memo would be the hardest thing we did all year.

It takes me an hour to write my statement of the issue: “The court should not grant a movement for summary judgment because the Neisons' liability for the physical harm of Matthew McGinley is established under all five points of the Massachusetts standard of care owed by landowners to children.”

Is it a "movement" or a "motion"? I feel so ignorant.

The 2L sitting to my left introduces herself as Alexandra. She says, "Don't sweat the memo! Just get it done. Your grade in Legal Writing is determined by your final paper. Nothing else.”

I push my laptop aside. “Then I’m packin’ up.”

Alexandra laughs. "No, you have to finish the assignments. That guarantees you a C. Whether Phelps gives you an A or B is arbitrary.”

“Come on!”

“It’s true,” she says. “Last year one student who shall remain nameless – although I’ll tell you it was Dean Link’s nephew – copied his roommate’s final paper. The only change he made was put his own ID number at the top. Phelps never noticed! She gave the student who wrote the paper a B and the guy who copied it an A!”

I shake my head. It’s the nightmare of every writing teacher: your inconsistent grading exposed to the world.

“How’d Link’s nephew get caught?” I ask.

“When the roommate came back to his computer, he noticed that the ID number on his paper wasn’t the same. Link’s nephew forgot to change it back.”

I laugh. “A criminal genius.”

Alexandra says Link’s nephew got kicked out of Notre Dame. “But he's back this year – as a 1L.”

"What!" I groan. “Guess that answers the question of ‘What’s worse than the first year of law school?’ Repeating it!”

Alexandra says some students were upset that he was allowed back at all. “If it were you or me, the doors of Notre Dame would be shut tight.”

* * *

Week Five, Part 5 - Torts: The Buck $tops Here

On Thursday morning I walk to the Office of Student Accounts in the basement of the Golden Dome. There I pay my school bill for the fall semester: $9,712.00. Ouch!

The clerk behind the counter wears a burgundy scarf and smells like lilacs. On the cupboard of a nearby cubicle is a magnet: “The buck $tops here.” She smiles and asks me what I’m studying.

“Law.”

“Oh!” she says, looking at me with new respect. She stamps the back of my check. Thump.

“That money took me a year to save,” I say.

She sticks my check in a drawer. “Like Ben Franklin said, ‘The best place to put your money is right here.’” She taps her temple.

I get my receipt and hustle across the Main Quad to Torts class. My favorite seat in the back corner is taken, so I slink down to the second row.

With Professor Charles E. Rice back from a week in New York, the volume of work has once again approached unmanageable. Read, read, read. Brief, brief, brief. I can’t keep up.

Rice warns us. “I want two days for review at the end of the semester, so let’s put the mileage on now.”

We fly through Chapter 3: Privileges. It includes the doctrines of consent, implied consent, self-defense, defense of property, and recovery of property.

Professor Rice has a bad habit of picking the students nearest him for Socratic humiliation. Today, though, he is mostly lecturing.

Rice parks on the topic of consent as it relates to medical cases. “The basic proposition in common law is that a competent adult can refuse any type of treatment, even if it's going to save his life. In the old days, though, they never got into intravenous feeding and the issues we see now.”

I look around the room at my 75 classmates. At $10,000 per head, that’s $750,000. We each take seven classes this semester. As a group we’re paying $100,000 in tuition to hear what Rice has to say.

“On the ethical side of the house,” Rice continues, “the general Christian moral teaching and certainly the Catholic position is that you are required to use all ordinary means to preserve your life. Not extraordinary. But once you start to tube feed or get put on machine, then that extraordinary treatment becomes ordinary.”

Let’s see. If there’s 16 weeks in a semester, that makes 32 classes. Throw in a final exam, and you have 33. Divide the $100,000 in tuition by the number of classes. We the students forked over $3,000 for today’s lecture.

Rice says, “Through an advance directive such as a living will, you can state what treatments you want or don’t want. You can put in provisos: ‘If I become incompetent, don't hook me up.’”

I think about the $10,000 I paid today. After grad school I lived in Japan for a year and taught English. I earned $30,000 of which I saved a third. It wasn’t easy. When my friends jetted to Thailand for beach weekends, I drove my (loaned) scooter along the Shimane coast. While they ate on yakitori at pricey clubs, I dined on soba noodles.

“Can a patient consent to his own death?” Rice asks. “On the moral side of the house, no one ever has the right to kill the innocent or kill himself. In the old days, if you committed suicide, they’d forfeit your property and bury you at a crossroads with a stake in your heart.”

What’s the value-added of a degree from Notre Dame Law School? The name? The fame? The ranking? The moral instruction? The personal attention? The far-flung network of loyal alumni? Football weekends? Maybe it’s smarter to attend IU Bloomington at half the cost.

Rice's closing comments pull me out of my daydream. “Put Chapter 3 on ice and think about it," he says. "Next week we’ll start on negligence.”

* * *

Week Five, Part 4 - Demographics

During lunch I stop by the Student Bar Association and pick up a Law School directory. In addition to an address and phone number, it lists the undergrad major and alma mater for every student.

I count 165 of us in the first-year class, including one girl who has already dropped out. Compared to other top-tier schools, Notre Dame has a small group of 1L's. Harvard Law enrolls 450, the University of Michigan over 300. I like the familiarity and camaraderie that comes with a more selective approach. My senior class at Owatonna Christian School boasted 14 grads. At Pillsbury College, I walked the line with about 140 classmates.

At Notre Dame, eight in the first-year class are Ivy Leaguers, 25 are Domers. Two did their undergraduate work overseas (University College, Dublin, and the East China Institute of Politics and Law). There’s a sprinkling of students from schools broadly classified as “evangelical Protestant”: Wheaton, Cedarville, Oral Roberts. I’m surprised to see less students from universities in Notre Dame’s athletic conference, the Big East (7), than from the Big Ten (18).

The gender breakdown of our class is 100 males, 65 females; about 40 percent. At the 178 accredited law schools in the United States, the percentage of women enrolled as 1L’s is 45 percent. According to the American Bar Association, in 1970 women made up less than 10 percent of law students. Their matriculation rate, however, has increased nearly each year. By 2001, first-year women will outnumber men at American law schools.

By far the most popular major in our class is political science (41 students). Next is history (17), followed by English (16), then philosophy (9). It seems law school is a last refuge for the liberal arts major.

Even as a non-Catholic, I feel comfortable at Notre Dame Law School. The students are friendly and willing to share notes or study outlines. It seems that I fit in well enough, even though I’m a bit older than my peers. I love their brash sense of school spirit. Most teachers are approachable. I’m awed by their publications and national reputations. The administrators seem competent and the staff dedicated. All in all, I think I made the right choice by enrolling.

If anything has me worried, it’s the rigor of the work. Back in high school, my wrestling coach Larry Briggs would harp about “mat sense,” an intuition beyond stance and moves. At Notre Dame, it feels like I'm deficient in “law sense.” When a prof asks a question, the answer doesn’t pop in my head. In reading the caselaw, I have a hard time discerning what’s not important. The Socratic method intimidates me.

Maybe it’s like that for most everybody. A book entitled Princeton Review: The Best Law Schools states: “The first-year experience at Notre Dame was said to be ‘usually very hard and very stressful.’ Professors may call on students at random and can be fairly ‘tough’ in their use of the question-and-answer format.”

My consolation is that no matter what the academic environment, I’ve always earned good grades. I can only hope that, unlike stocks and mutual funds, past performance will predict future success.

* * *

Week Five, Part 3 - CivPro: Brain Cramp

In CivPro, Professor Joseph P. Bauer introduces a new topic, “long-arm jurisdiction” – the ability of local courts to hear and determine cases involving non-resident defendants. As we discuss Burger King v Rudzewicz, I witness my first Socratic fatality.

Bauer reviews the facts of the 1985 Supreme Court case. Rudzewics was an accountant who lived in Michigan. He contracted with Burger King, a Florida corporation, for a franchise in his home state. When the restaurant didn't do well, Rudzewics fell behind on his rent payments. Burger King sued him in Florida.

Professor Bauer is his normal impeccable self, dressed in a three piece suit. The creases of his pant legs break at just the right spot above his tassled loafers. He calls on a girl in the second row. "Where did Burger King sue, Miss Powlowski?

"In district court."

"That we know,” Bauer barks. “Which district court, Miss Powlowski? You have two choices."

"Florida district court?"

"Which district court in Florida? Federal or state."

"State district court."

"Guess again, Miss Powlowski." The class laughs.

She gets it right, and Bauer writes "fed" on the board.

He asks her about the district court's ruling. It had rejected the Rudzewics’ challenge to personal jurisdiction, and held that Burger King could sue him in Florida.

Powlowski is waaay off in her answer.

Bauer questions her about the appellate court's ruling.

Powlowski is wrong again.

"Did you brief this case?" Bauer asked, his tone disbelieving.

Powlowski holds up a sheet of paper.

That's worse, I think, getting the wrong answers when you did the work.

Bauer tells Powlowski to open her casebook. He points her to the page 353.

"Now what was it that the court ruled?" Bauer asks.

Again she gets the answer wrong, although I don’t blame her. The case is confusing. Justice Brennan, who delivered the opinion of the court, quotes both the trial court and the appellate court.

I think of the book One L. In it, author Scott Turow relates how the Harvard Law profs terrorized and embarrassed the first-year students.

Bauer, however, backs off. Maybe he’s evolved beyond Cambridge past. "I'm sure I have you all flustered now,” he says to Ms. Powlowski. “Let me go to someone else before I give you apoplexy."

Bauer picks another name. It’s so close to mine that my testicles constrict, like I’ve jumped in cold water.

Bauer makes a point about interlocutory appeals, then comes back to Powlowski. He asks her a few easy questions; “marshmallows” he calls them. Powlowski recovers her dignity.

Class ends and we exit. John Edgar rolls up beside me in his wheelchair.

“Glad he didn’t call on me,” he says. “My brief was a freakin’ joke.”

“That makes two of us,” I say. “It feels like I’ve been behind from day one.”

Instead of lunch, I hurry to the third floor atrium and re-brief my cases for Crim.

* * *

Week Five, Part 2 - Darwin on Trial: You Be the Judge

Graduate student Pieder Beeli introduces the speaker to a near capacity crowd at Notre Dame's DeBartolo Auditorium.

"After graduating from Harvard, Professor Phillip E. Johnson attended law school at the University of Chicago where he finished first in his class," Beeli says. "He served as clerk to the chief justice of the Supreme Court, Earl Warren, before joining the law faculty at UC Berkeley. There he holds a distinguished faculty chair. Dr. Johnson is the nation’s leading critic of naturalism and Darwinism. Let’s give him a warm round of applause."

Harvard. Chicago. Berkeley. A coast-to-coast pedigree of top-ranked schools. And a Supreme Court clerkship - the ultimate smart club for recent law grads.

Johnson begins by saying that thirty years ago he tried to visit Notre Dame stadium. "The traffic was so horrible that I vowed never to come again!" We laugh. He then praises the Catholic intellectual tradition for its respect of learning in all fields.

The presentation is in two parts, first lecture and then question-answer. Small of stature with tiny hands and elfin features, Johnson speaks quite fast.

His first point is that Darwinian evolution contradicts any meaningful theism in which God plays a role as a creator. "Evolution as it is known to contemporary science is an unplanned, unguided, undirected process. Human life is an accident. We were created by a purposeless, mechanical process that cares nothing for us."

Johnson quotes from a variety of sources, including Harvard professor Stephen J. Gould, whom he calls the most prominent American exponent of the theory. "Before Darwin we thought that a benevolent God had created us. After the acceptance of Darwinism, however, that belief became intellectually untenable."

Johnson’s second point deals with the complexity of plants and animals. "The human body is a complicated arrangement of interrelated parts that makes a spaceship or computer look rather low-tech." He quotes from The Blind Watchmaker, a book by University of Oxford professor Richard Dawkins whom Johnson describes as a fanatical atheist: "Biology is the study of complicated things that give the appearance of having been designed for a purpose."

Pacing back and forth, Johnson asks, "But if there is no design, what do we rely on instead?" Again he quotes from Dawkins. "Natural selection is the blind watchmaker, blind because it does not see ahead, does not plan consequences, has no purpose or view, yet the living results of natural selection overwhelmingly impress us with the appearance of design as if by a master watchmaker."

Johnson, however, argues that natural selection alone is insufficient to explain the design found in nature. He reads Dawkins explanation of how the bat got its wings. In short, small folds of skin gave some tree-top rodents an advantage over others. A "just-so" story is how Johnson terms it. "No!" he says. "Genetic information is the product of intelligence, and you need intelligence to make it. You’re never going to solve the problem through these unintelligent, material causes."

When it comes time for Q&A, the students are quick to line up. Some of the questions are friendly, others hostile. Johnson’s demeanor has changed. He too is more combative. When the questioner speaks, Johnson looks away in concentration.

Then up to the microphone strolls an older man with thick jowls and a wide girth, the physical opposite of Johnson. "Your book Darwin on Trial challenges theistic Darwinism, a position you ridicule..."

Johnson interrupts him. "I don’t use ridicule, but I claim it’s logically incoherent." The crowd laughs. "That is, it’s either not evolution, or it’s not theistic."

"I don’t know what happens to you in court if you’re characterized as logically incoherent," the man says, "but if my dissertation defense had been so characterized, I would have failed. That’s constitutes ridicule to me."

"So I have to say that the position is logically coherent in order to be polite."

"I don’t want you to be polite," says the man, and draws his first laughs as well. "This evening you’ve displayed a capacity to utilize any perspective on any issue that would advance your case, just as a good attorney would. But if you don’t mind, I’d like to cross-examine you for a moment. I’ll ask you my hardest question first, because that’s the best mark of respect I can muster in academic life."

Johnson nods.

"Your chapter on molecular evolution, which I found somewhat disappointing, is almost totally devoted to the neutralist hypothesis that there’s a biological clock which enables us to tell how much cytochrome C in various organisms has diverged from the putative ancestry on the basis of amino-acid replacements at a variety of locations," the man says, his voice low and deep. "So my first questions is about enzyme action. Is cytochrome C an enzyme or a receptor or what is it?"

The high-pitched laughter of one student breaks the silence.

"What is your point?" Johnson asks in a sharp tone.

"I want to know whether or not you have simply culled the evidence looking for arguments against Darwin as a prosecutor would."

"I’ll tell you how I’ve approached the molecular evidence. It’s with the question of ‘what does this do to substantiate or cast doubt on the blind watchmaker mechanism?’ This question carries all the philosophical weight, and that’s what I’m interested in. Now what you’re attempting is ridicule."

"No," says the man.

"What you’re attempting is ‘let’s get this guy to take a test in biochemisty," Johnson says. "We can then ridicule him in front of an audience and we won’t have to deal with the issues.’"

The man waits for the applause to die down. "To the contrary. I assume you have as many friends here as I do."

"By the way, are you a biochemist?" Johnson asks.

"Do you mind, sir. For a moment I’ll ask the questions. Do you know enough about cytochrome C to deal with the question of whether or not a 60 to 70 percentage variation of the amino acid substitutions would be evidence for or against the blind watchmaker hypothesis."

"It isn’t the kind of thing that would tend to be evidence about it any way," Johnson says. "I have a close colleague, a professor in biochemistry at Lehigh University in Pennsylvania, who by the way doesn’t mind using his name. It’s Michael Behe." Johnson summarizes Behe’s argument that biochemical structures in cells are irreducibly complex and could not have been built by the stepwise, Darwinian mechanism. "That’s what’s important about the evidence. If you want ask whether or not I can pass a biochemistry exam here tonight, the answer is ‘no.’ Is that a frank enough answer?"

"That’s very frank. And if you’d like, my name is Edward Manier. I teach history and philosophy of science with a speciality in biology, evolution, and neuroscience. And it may very well be that your biochemistry friend doesn’t know my name either."

I chuckle, though I wonder if it’s Manier whose ignorance is showing.

"Here’s one last question to see how much biology you know, apart from your assiduous effort to look for all the negative evidence about Darwinism."

Johnson cuts him off. "I never resort to that kind of thing."

Manier laughs and hooks his thumbs under both lapels. "That’s right. You just happen to be from Harvard and Chicago, but there’s no one in here but us country lawyers, is there?"

I’m stunned by the rudeness and mockery.

Manier continues. "What I’d really like to know is whether you think it’s misguided in the study of the human genome to use the mouse genome as a model. If you do think that’s misguided, I’d like you to tell us all....

"I think that’s an attempt to muddy the waters," Johnson says, irritated, and I’m not going to pay any more attention to it."

A cadre of students laugh in derision.

"Oh, I understand," says Manier. "You’ll be the judge and the jury." He turns and walks out of the auditorium to faint applause.

* * *

Week Five, Part 1 - Ethics: Trained To Do Right

Legal Ethics is only a one-hour class, but that doesn’t stop Dean David Link from pumping up the rhetoric.

"As a law school concerned with moral values, we’re not coy about ethics," he says. "We teach it by the ‘pervasive method.’ That is, ethics goes beyond this course. Every class is supposed to cover it."

His voice is deep, slightly affected. "Some schools emphasize law and economic theory," he says, referring to the University of Chicago two hours west. "We emphasize law and ethical theory."

Link reminds us that all graduates of Notre Dame Law School are required to take two classes in ethics. And he mentions that Professor Thomas Shaffer is "the nation’s most published legal ethicist."

Link holds up a yellow paperback. The title reads: "Model Rules of Professional Responsibility." He clears his throat. "These are the things you can or cannot do as a lawyer. Some are rules about civility. Others are rules to protect our monopoly over the practice of law. They’re not really ethics, but the minimus. The Rules make up the first levels of ethics."

Link walks from behind the podium and, as is his norm, swings his foot up high on the attached table. "Group expectations comprise the second level. These are what other lawyers expect you to do, and you can only be disciplined if your group has adopted them." We discuss several examples.

"The third level is personal ethics," Link says. "This is the highest level, your personal standards, how you expect yourself to perform. This level differs from the concept of prudence, although it’s both ethical and prudent to be honest."

He pauses until the room is completely quiet. "How do you gain a personal system of ethics?" he asks.

A student calls out, "From your family."

"Certainly," says Link. "I learned what was right from Mom and Dad. And from my brothers and sisters, I learned a lot about what was wrong."

We laugh.

Link guides us through other sources of personal ethics: religion, friends, personal examination, research, role models. He mentions Judge Robert A. Grant, a senior federal judge and 1930 NDLS alum, as someone influential to him.

Link then references the movie "To Kill A Mockingbird." He asks,"Was Atticus Finch an ethical lawyer? Was he effective? Why didn’t he tear the complaining witness, Mayella Ewell, to shreds when she was on the witness stand? She was lying and self-contradictory."

One student says that Finch didn’t want to alienate the jury.

Link dismisses this point of view -- a mere utilitarian argument.

Another states that it would have been unethical to badger a witness.

Link quotes from the text. "You know, when Miss Maudie is talking to Jeremy, she says, ‘We're so seldom called on to be Christians, but when we are, we've got Atticus to go for us. Whether Macon knows it or not, we pay Atticus the highest compliment – we trust him to do right.’"

"That’s an important principle," Link says. "Here at Notre Dame, we’re training you to become not just a lawyer, but also a public servant we trust to do right."

* * *

Week Four, Part 8 - Not Guilty

On Saturday, Terri and I drive to Notre Dame for the second home game of the season. Last weekend at West Lafayette, the Irish beat Purdue University, 35-28, to even their record at 1-1. The football poll by the Associated Press has Notre Dame ranked 24th.

Today the Irish play Vanderbilt, located in Nashville, Tennessee. Like ND, Vandy is a small, private, selective university. It lacks, though, in Notre Dame’s national brand-name.

The weather is perfect for football, about 70 degrees. I’m wearing shorts and a short-sleeve button-down. Terri has on jeans and a Notre Dame Law t-shirt. Weaving through the crowd, we hold hands to keep from getting separated.

A group of shirtless undergrads run toward us, their heads shaved and painted gold. "Vandy, Vandy, ain’t we dandy!!" they chant and laugh.

Terri says, "They’re blasted and it’s not even noon!"

"If you only knew the academic pressure we Domers face," I say.

Terri feigns exasperation.

We stop at the law school to cool off. I get a drink of water and pick up an "Irish Extra," the pull-out supplement from Friday’s Observer. It has game analysis and a roster for both teams.

"Now I won’t need to buy a program," I tell Terri.

Terri shakes her head, as if my Calvinist frugality is too much to bear. We head out toward the stadium.

I put my arm around her shoulders. "When one is forced to pay one’s tuition himself, one must be careful with one’s money."

Terri’s not rising to the bait.

"What are you thinkin’?" I ask.

"How young all the students are."

"What else?" I ask.

"How good that hot dog is going to taste."

Although the game itself is a route – 41-0, the Irish don’t look sharp. QB Ron Powlus, wearer of Joe Montana's hallowed #3, seems slow and lethargic. During a five-play stretch, he fumbles three times. Lou Holtz is convalescing from major surgery on his spinal cord, so defensive coordinator Bob Davie acts as coach. At the end of the game, the players carry him off on their shoulders.

On the ride home I tell Terri, "I didn’t even feel guilty today."

"Guilty?" she asks.

"Yeah, for not studying during the game," I say, referring to the home opener when I snuck in study cards.

"Good," Terri says, "that’s another victory."

* * *

Week Four, Part 7 - CivPro: International Shoe

“Ms. Gonzales, let me get you in on the fun,” says Professor Joseph P. Bauer with a smirk.

It’s Friday in Civil Procedure and we’re finishing up the landmark case of International Shoe v. Washington. My study cards call it “the one supremely important case that concerns the jurisdiction of forum state courts over non-present defendants.”

The substantive issue is whether the state of Washington could require the International Shoe Company to contribute to an unemployment fund. More importantly, the procedural issue is whether a court in Washington state had personal jurisdiction over the Missouri company. The U.S. Supreme Court said yes.

Bauer asks for the core rule in Shoe.

Danielle Gonzales from Tulane U adjusts her glasses and swallows hard. She answers, “Certain minimum contacts allow for personal jurisdiction.”

“Good. After Pennoyer v. Neff we had four ways to exercise jurisdiction: presence, citizenship, consent, and service upon an agent. Now, after 1945, we have a fifth basis for in personam jurisdiction: minimum contacts.”

Gonzales nods. She’s not offering any more information than necessary.

Together they review the “subfactors” of minimum contacts.

1. whether continuous and systematic contacts by the company,
2. whether benefits and privileges to the company,
3. whether willful affiliation by the company,
4. whether effects on the company,
5. whether qualitatively substantial contacts by the company,
6. whether quantitatively substantial contacts by the company,
7. whether the company, International Shoe, could reasonably foresee being hailed into court.

Bauer asks, “Ms. Gonzales, can you make the argument that in Shoe the facts do not constitute ‘minimum contacts’?”

It’s a sneaky bit of Socratic posturing – make the student argue against the case holding.

Gonzales stays silent.

Bauer says, “My position is that a good lawyer can make any argument. Look at the O.J. case.”

We laugh.

Gonzales argues the company did not have an office in state of Washington, did not sign any contracts there, did not pay any salaries there -- only commissions.

“Good,” Bauer says. “On an exam, hypothetically, you’d be able to look at the facts of a case and see how they match these subfactors from Shoe.”

At mention of the final test, we all look up.

Another smirk from Bauer. He asks, “What’s a law exam like?”

We wait.

Bauer strokes his beard, then clears his throat.

“Torture.”

* * *

Week Four, Part 6 - Money Problems

On Thursday I find a bill on the kitchen counter. Across the top it reads “University of Notre Dame” in Old English script. Below that, “Office of Student Accounts.” In the left corner is the Notre Dame seal: “Sigillum Universitatis Dominae Nostrae Alacu,” Latin for “pay up now or we’ll kick your butt.”

The tuition for fall semester is $9,210.00. There’s also $43 for Motor Vehicle Registration, $15 for Bar Association Fee, $3 for Law Review, $7 for Journal of Legislation, $2 for Journal Univ & Colleges, and $432 for Health Insurance that I don’t need.

My total amount due is $9,712.00. Ye gads! That seems like a mountain of money for 17 weeks of school.

Strangely enough, I’ve never paid tuition before. Undergrad costs at Pillsbury College were waived because my dad taught there. A graduate assistantship at Seattle Pacific covered the bills for my masters in education. And when I taught at Pillsbury, a faculty development grant paid the bulk of my M.A. from Minnesota State University, Mankato.

After supper I raise the delicate issue of money with Terri. We’ve been married less than a year and our financial accounts have yet to be “commingled,” as a lawyer might say.

I figure it would be ideal if Terri footed the bill. She’s having a bang-up year at AT&T. In the last six months, Terri has “won back” the long-distance business of three large corporations: Jayco, Skyline, and Chore Time Brock. With commission, she should make six-figures.

“Honey,” I say, “Did you see the bill from Notre Dame Law School?” I’m clearing the table as she loads the dishwasher.

Terri nods.

“Ten thousand bucks!” I say. “That bites.”

“Sure does,” she replies.

“Looks like I’ll have to take out a loan.” I might as well be on one knee. “They say the average law school student grad ends up with $55,000 of debt.”

“Wow.” Her tone is flat.

I carp on until Terri says, “The money I earn goes to pay for everything – food, insurance, you name it.”

“But we’re not going to eat $100,000 worth of ravioli!” I say.

Terri softens. “You know my phobias,” she says, code for “I’m not the same trusting fool I was five years ago.”

“Fair enough,” I reply. “I’ll pay it myself.”

* * *

Week Four, Part 5 - Legal Research: Don’t Know Anything

Legal Research, a one-credit class, meets every Wednesday at 3:00 p.m. As in the other non-substantive classes, Ethics and Legal Writing, there’s no Socratic method. Yeah!

Each week we hear a lecture given by a research librarian from Notre Dame’s Kresge Law Library. The subject matter tends to be basic: the hierarchy of federal and state courts, the different types of case reporters, the format of judicial opinions.

Although the first three lectures have been arid, the information is vital, especially for legal neophytes like me. Maybe the pre-law majors already know that “stare decisis stands for the general proposition that ‘like cases should be decided alike,’” but I’ve never heard it before.

What kills about Legal Research, though, are the assignments. We receive one at the end of each class and it’s due the following Monday. The assignments are pass/fail and designed to take two and half hours. I’ve yet to finish one in less than five.

Lucy Payne, one of the research librarians, tells the students, “Assignments can make us go berserk if we let them. Why? Because law school brings out that anal part of us that doesn't want to make any mistakes.”

She’s got me pegged.

Today the lecture is by Assistant Dean Roger Jacobs. He has a full head of white hair, wire rim glasses, and a ready smile. His oft-trumpeted claim to fame is that he served from 1978 to 1985 as the librarian of the United States Supreme Court.

The topic of Jacobs' lecture is “secondary sources,” books and articles which summarize or comment about the law. He shows us how to use these authorities as tools.

“Pay attention to the footnotes," Jacobs says. "They’ll zap you right where you need to go.”

The assistant dean tells us there are six major types of secondary authorities: legal dictionaries, legal encyclopedias, periodicals and indexes, pamphlets, looseleaf services, and Nutshells.

Jacobs holds up a paperback, white on the top, green on the bottom. Torts in a Nutshell reads the cover. “This one’s by Ed Kionka, my buddy at Southern Illinois,” he says. “As a general rule, Nutshells tend to mountain-top. But as a overview, they’re quite popular.”

Jacobs adds, “Even the law clerks at the Supreme Court use ‘em. They’ll check one out and read it that night.”

I could do that, I think.

Jacobs reads my mind. “The difference between them and us is that they remember everything.”

Ouch! I think.

He closes with a library maxim: “Remember, when you don’t know anything, look at secondary sources first.”

“When you don’t know anything...” “You don’t know anything...” “Don’t know anything...” Long after class, the words echo in my head.

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