Closed Universe

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

2007-03-09T22:02:00.000-05:00

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.”

* * *

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

2007-03-04T22:23:00.000-05:00

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.”

* * *

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

2007-02-10T01:28:00.000-05:00

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

2007-01-05T21:34:00.000-05:00

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

2006-12-24T14:51:00.000-05:00

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.

Is there venue under the statute?
Can and should I transfer venue “in the interest of justice?”
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

2006-12-15T21:39:00.000-05:00

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.

Silence.

“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

2006-12-09T11:47:00.000-05:00

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

2006-12-01T19:50:00.000-05:00

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

2006-11-17T21:19:00.000-05:00

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

2006-11-10T23:06:00.000-05:00

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:

IMMUNITY DAYS
bought to you by
SOCIAL JUSTICE FORUM
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

2006-10-29T22:41:00.000-05:00

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?”

“Yes.”

“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

2006-10-20T20:34:00.000-04:00

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

2006-10-09T17:18:00.000-04:00

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

2006-10-05T21:24:00.000-04:00

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

2006-10-04T22:25:00.000-04:00

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

2006-09-24T22:06:00.000-04:00

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

2006-09-22T19:49:00.000-04:00

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

2006-09-17T22:39:00.000-04:00

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

2006-09-11T22:33:00.000-04:00

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."

"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

2006-09-04T17:08:00.000-04:00

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.

Silence.

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

Silence.

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

Silence.

“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

2006-09-01T01:25:00.000-04:00

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

2006-08-29T21:26:00.000-04:00

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?”

“Telling.”

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

2006-08-28T22:31:00.000-04:00

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

2006-08-27T08:59:00.000-04:00

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.

* * *

Week Eleven, Part 2 - Repeated Questions

2006-08-26T20:21:00.000-04:00

The best part of our non-substantive classes – Legal Writing, Ethics, Research – is that there’s no Socratic method. Knowing I won’t face a hostile Q&A relaxes me.

Perhaps I’m not alone in my feelings.

On the 1L board in the basement, someone has taped a photocopy of a pharmaceutical ad. It pictures an old lady with a narrow face, white hair, glasses.

“How do you know if a loved one has Alzheimer’s?” the heading asks.

There’s a list of symptoms below the picture. The first one, “Asks repeated questions,” is highlighted in yellow marker.

In the margin a wag has written: “cf Socratic method.”

* * *

Week Eleven, Part 1 - Legal Writing: How To Manipulate A Judge

2006-08-24T20:41:00.000-04:00

In Legal Writing, we finish our opinion letter and turn it in to be reviewed. Our new task will be to write a memo to the court. Ever the non-lawyer, Professor Teresa Phelps tells us that the court memo “occurs around the trial stage somewhere.”

The court memo is a type of persuasive writing. It works to justify a claim.

“Legal argumentation is not formal argumentation,” Phelps says. “There are no syllogisms. We’re not talking about truth. If it were, we wouldn't have two people in front of the judge. It's about justification. It's about who wins.”

Not talking about truth? Any second I expect to hear the sound of Sir Thomas Moore tumbling off his niche on the south wall of Notre Dame Law School.

We review Aristotle’s three sources of persuasion: pathos, ethos, logos. “Pathos is working on the judge’s emotions,” Phelps says. “Put the judge in the proper frame of mind. She wants to make a sound decisions and feel good about the outcome. We do this by characterizing the facts to create a picture. Ethos is giving the judge the right impression of you the writer. You want to be perceived as thorough, accurate, and fair. This extends to proper citation forms, even though they can be a pain. Logos is proving the truth of the matter. Work to make probabilities look like syllogisms.”

Phelps says, “I'm going to teach you how to control reader-response to text. Said differently, what choices can we make to influence a judge’s reaction to the language in a memo?”

Phelps tells us that the number one priority of the legal memo is to persuade the reader. “Clarity and directness may work against us, so the typical strategies of active voice and subject-verb-object syntax become optional.”

In any legal situation, the legal writer must rate the facts: good for the client, neutral, bad. Phelps tells us we have an ethical obligation to bring all relevant facts before the court. “But in doing so, seek to avoid cognitive dissonance. You don’t want the language to rub up against what you’re asking the court to believe.”

She lowers her voice like Smaug about to show his armor to Bilbo Baggins. “Put your bad facts in the middle of a paragraph, syntactically the weakest place. Subordinate the bad facts in a dependent clause. If it’s your client, use a pronoun with bad facts.”

Another persuasive technique is the use active and passive voice. “If you want your client to be passive, you keep him out of the subject position.”

The third technique is to use storytelling to present the case. “If the client is admirable, tell her story,” Phelps says. “If your client isn’t, present the law as hero.”

Then she plays her trump card. “This was my approach when I was working on legal brief for the Supreme Court.”

We look up in surprise. Is this the unauthorized practice of law?

Phelps continues. “The case had to do with an interstate agreement on detainers. In our client's case, all the procedures hadn't been followed. And after culling through boxes of trial transcripts, I had to tell the story of the interstate agreement on detainers. ‘If this law isn't properly used, the federal government is going to have take over the transporting of prisoners between states.’ The prisoner himself became incidental.”

She winds down. “Voice, fact placement, storytelling. All these are functions of Aristotle’s ethos and pathos.”

I notice she’s abandoned logos.

Phelps concludes: “I want you to eschew totally, absolutely, any loaded language. That’s a red flag. Sophisticated readers never respond the way you tell them to. And a legal memo will automatically be read in bad faith because you're writing as an advocate. Our techniques, while shockingly manipulative, are subtle.”

* * *

Week Ten, Part 7 - Holy War

2006-08-23T22:39:00.000-04:00

At the start of Criminal Procedure, Professor Dutile holds up an Observer with the headline: "Making of a 'friendly' rivalry." A color picture shows the new trophy that will go the winner of the football game between Boston College and the University of Notre Dame. It’s a green plate of leaded crystal cut in the shape of Ireland. Engraved on the front are a shamrock and the names of each school.

"Talk about shoddy journalism,” Dutile says. “This rivalry isn't friendly!"

We laugh and Dutile waits. "Usually I'm concerned when a team runs up the score. But tomorrow against Boston College, I won’t mind if we put 100 points on the board!”

The class erupts – hoots and hollers, laughin' and clapping. Beside me, a Domer shouts, “Holy war.”

In each of the last two years, the Screaming Eagles have upset Notre Dame. Last October in Chestnut Hill, the BC students stormed the field and tore down their goal posts to celebrate the win. The Observer quotes a Notre Dame player who complains about being spit on. He adds, “Their fans are not the classiest around.”

Dutile says, “Tomorrow we will prove that there's only one Catholic football powerhouse."

His wish is granted as Notre Dame beats BC, 20-10. The Irish are now 7-2 and may go to a bowl if they win against Navy and Air Force. It would be a nice ending to a season that started with a painful loss.

After the game, Terri and I hurry home. I spend the evening immersed in appellate decisions; she packs for a business trip to Florida. AT&T is hosting a “User’s Group” in Orlando, the mecca for business conventions. Terri and a client, the telecom manager from Biomet, will be among the 7,000 participants learning about 800-number portability and call center management.

Since I’ll be taking care of Steph and Lauren, I try to read enough cases to last me through Friday. I’m drowning. Glub. Glub. Glub. My briefs are cursory, and before going to sleep, I pray again that this won’t be the week for Socratic water-torture.

* * *

Week Ten, Part 6 - Contracts & CivPro: A Speed-Typin’ Genius

2006-08-22T17:35:00.000-04:00

The results of my last two mock mid-terms, Contracts and Civil Procedure are on polar ends of the spectrum.

In Contracts, Professor Kaveny gives me a “check-plus.” It looks to be the equivalent of an A- or high B. From my perch in the back row, it seems most of the class got something less, checks or the dreaded check-minus. I’m happy with the mark, but know the answer was all cut-and-paste from my notes.

Kaveny says, “You need to be concerned with the fine art of taking law school exams. What do you need to stick in this bluebook to make us happy? First, know the theory. Second, be able to manipulate facts. Tie everything you say into a fact. Third, aim for a total integration of fact and law. Fourth, argue the other side.”

In CivPro, we start a new section of the syllabus. Federal subject matter jurisdiction.

Professor Bauer introduces the subject. “We’ve spent eight weeks on personal jurisdiction. It determines in which state can an action be brought. Let’s assume, ‘Wyoming.’ Now we need to decide in which Wyoming court can the action be brought. Federal court. State court. Or both. The answer will be the same whether we’re in Wyoming or New York because the scope of federal subject matter jurisdiction is the same for every state.”

Bauer stops, waiting for us to catch up. “Within every system there may be a series of courts. Small claims court. Federal tax court. Military court. Don’t worry, we’re not going to talk about those. Our focus is limited to what actions can be brought in federal court. Second, what actions must be brought in federal court.”

We move into case law, Louisville & Nashville Railroad v Mottley, and learn our “smj mantra.” It’s never consented to, it’s never waived, it can be raised the first time on appeal, it can be raised by the court on its own.

As for my CivPro mid-term, I get the expected bad news from Professor Bauer: a zero. On the night of the exam, I’d run out of time and not attempted an answer.

Instead of reviewing the mid-term in class, however, Bauer simply gives everyone a two-paged, single-spaced, “sample answer.” He jokes, “This is not what I expected anyone to have done in 45 minutes, unless you're a speed typist in addition to being a genius.”

We laugh.

All told, I figure I earned an F, D-, B+, and A- on the mock mid-terms. Even though the scores aren’t recorded, they scare me. And I promise myself that by the end of the semester, I’ll have learned the fine art of law school exams.

* * *

Week Ten, Part 5 - Observing Notre Dame

2006-08-21T23:25:00.000-04:00

In the student lounge, I grab an Observer off the rack and sit on a step underneath the Pillsbury pennant. Instead of studying, I indulge the urge to see what’s happening around campus.

The lead story reports that a Notre Dame senior, age 21, was killed in a one-car accident. According to the police, Robert Adams lost control of his vehicle and crashed into a tree at a high rate of speed. “Alcohol may have played a role in the accident,” the paper notes. “A blood alcohol test revealed that Adams had a blood alcohol content (BAC) of 0.18 percent. Under Indiana law a person is considered intoxicated with a BAC of 0.10 percent or more.”

Adam’s death is sad and reminiscent of another accident two years earlier. After drinking with friends, law student John Rita drove back to Notre Dame at night. His car struck and killed undergrad Mara Fox who was walking along Douglas Road in South Bend. Instead of stopping, Rita drove back to his apartment and fell asleep. He later told police he thought he had hit a deer. St. Joseph County Prosecutor Michael Barnes, a ‘73 NDLS grad, had Rita arrested and charged him with two felonies: causing death while driving intoxicated and leaving the scene of a fatal accident. At trial last year, Barnes struck out. A Superior Court jury acquitted Rita of the first charge and hung on the second, unable to arrive at a unanimous conclusion.

During supper I tell Terri about the Adams accident. “What amazes me most,” I say, “is the lack of public condemnation at Notre Dame about alcohol abuse.”

Terri smiles at me, like I’m naive. “That’s part of being Irish Catholic. You can drink to your heart’s desire.”

I then share the other big news on campus. At their fall meeting, the Notre Dame Board of Trustees elected Nathan Hatch, an evangelical Protestant, as provost. According to the Observer, the provost is “the University’s second ranking officer” and exercises “overall responsibility for the academic enterprise.” Hatch earned his undergraduate decree from Wheaton College in Illinois and his Ph.D. from Washington University in St. Louis. For twenty years he’s been a professor of history and member of the Notre Dame faculty. His book, The Democratization of American Christianity, won the John Hope Franklin Prize as the best book in American studies.

I say to Terri, “Doesn’t it surprise you that such a Catholic university would hire a Protestant for the number two spot?”

“I don’t see Notre Dame like that,” she says. “It’s more open-minded and committed to hiring the best person for the job. Wheaton College has a great reputation and so does Hatch.”

I blink several times, like I’m still unable to comprehend.

“Honey,” she says. “Notre Dame’s not like our circles. At Pillsbury, we make sure a candidate matches every doctrinal jot and tittle, then hope he meets the job description. That’s why Notre Dame’s a national university and Pillsbury’s an unaccredited Bible college. Do I think there’s a place for both in higher education? Yes. Do I wish I’d planned my educational path better? Yes, again. You’re blessed to have experienced them both. Some of us will never be able to make that jump.”

* * *

Week Ten, Part 4 - Torts: Revenge Of The Classroom Gods

2006-08-20T20:13:00.000-04:00

As Professor Charles Rice hands back our mid-terms in Torts, I expect a grade no higher than a D. To me, the test was overwhelming.

The Woodenism about “failing to prepare is preparing to fail” runs through my head. To get ready for the exam, all I did was memorize the elements of each intentional tort: battery, assault, false imprisonment, trespass to land, trespass to chattels, infliction of emotional distress, conversion.

I open my bluebook. At the top of the first page I see a B+.

Yeah, baby! Move over, Justice Scalia! I've never been so happy with a grade less than A .

Rice gives us feedback. “I saw very few problems with the law,” he says, “though everybody made the basic mistake of concluding that Nemo was a bailee of the gas can.”

That’s strange, I think. I didn’t deal at all with bailments, the law of obligations arising when one person leaves personal property in the possession of another.

“And when Able runs out of gas and rolls his car into the private drive, that’s necessity.”

Missed that issue too.

Rice talks about statutory negligence and the question of causation. “All I wanted you to do was play with it,” he says. “Max out the issue.”

Bailments. Necessity. Statutory negligence. Causation. Hmmm. Either Rice is the incarnation of generosity or my grade should have much lower.

I reopen my exam. Not a mark on it. I suspect Rice skimmed my answer or gave me a grade based on the first paragraph.

His statement of “I saw very few problems with the law” is true, only because he didn’t look.

The revenge of the classroom gods is swift.

As part of our continuing discussion of negligence, Rice brings us to the topic of res ipsa loquitur, Latin for “the thing speaks for itself.” This doctrine allows plaintiffs to infer negligence by the mere fact that an accident happened.

“For example,” Rice explains, “suppose you’re walking on a sidewalk near the St. Francis Hotel in San Francisco. It is not V-J Day. Suddenly, a large overstuffed armchair hits you in the head, although no one saw where it came from.”

Rice lists the elements of res ipsa on the board. Using the Socratic method, he questions a student over Holmes v. Gamble, a 1982 case from Colorado. The judge in Holmes had used a “preponderance of the evidence” standard and granted the defendant’s motion for a directed verdict. A higher court overturned the decision. It said the trial court should have applied a “probability of the evidence” standard.

“The point,” Rice says, “is that probability is higher than preponderance.”

Deirdre “Dee” Grant raises her hand. She’s a waif-like student from Ireland with an undergraduate law degree. “Are you sure?” she asks. Dee tugs on the bill of her baseball cap, then reads aloud from a section of Holmes. It seems to indicate that “probability” is a quantum of evidence below “preponderance.”

Wow! A student challenging a prof on a legal issue. The class is quiet. We’ve never seen this before.

Rice looks down for about 15 seconds, reading the paragraph in question.

“Mea culpa,” he says. “It’s the first time, but I goofed.”

Ha! Back at ya! After eight weeks of terrorizing us, albeit in a humorous fashion, Rice has gotten a little comeuppance.

* * *

Week Ten, Part 3 - Criminal Aftermath

2006-08-19T14:40:00.000-04:00

Once I'm safe at a back-corner carrel in the law library, I put my head down, using American Criminal Procedure as a pillow. I’m in deeeep trouble. Crim got the bulk of my mid-term study time and an extra 45 minutes during the mock exam. If that effort equals F, then Torts and Contracts will destroy me.

There’s a knock on my cube. I open my eyes and see Anthony Wisniewski, my study partner from Contracts. He’s wearing jeans and a plaid button-down.

“Hey, man. That bad?”

“I plead the Fifth.”

“Come on, tell me! It was a mock exam.” Anthony talks like a New York cabbie, which makes me smile.

“D is for Dutile,” I say, giving myself a grade bump. “How ‘bout you?”

“Got schooled,” Anthony says. “That’s why they call flippin’ Dutile the ‘Smiling Assassin.’” He slaps the carrel wall. “But you know what? I’m gonna turn all this negative energy into something positive. If I need to, I'm willing to study 20 hours a day. Capisci?!”

I nod. “The mid-term was like finding out you’re Rudy instead of Joe Montana.”

“No!” Anthony says, “it’s like John Wayne Bobbit waking up without his dick.”

“Ouch.”

“And today!” Anthony flips open his notebook. “Take Spinelli and fast-forward to Gates. Does Spinelli the day after Gates, get decided any differently than Spinelli the day after Leon?” he reads.

“I thought Hansen gave a good answer.”

“That’s just it! I can't keep up with these guys who pull crap out of thin air!”

I cross my arms and lean back in my chair.

“And do you want more bad news?” Anthony asks.

“No.”

“A 2L told me that the final for Legal Research is a real ball-buster. You gotta know citation format for every kind of case and statute. Even weird stuff like subsequent histories. Updating. Indexes. Shepardizing.”

“Brutal.”

“We’re climbing a mountain,” Anthony says, “and we’ve got to help each other. It's in all our best interest.”

“We’ll see.”

Anthony keeps talking until I beg off to brief my cases for tomorrow. I’m not sure what type of help he’s thinking about. What I’d really like is a brain transplant from some great legal mind.

* * *

Week Ten, Part 2 - Crim: Plead the Fifth

2006-08-18T20:23:00.000-04:00

The class grows quiet as Professor Tex Dutile walks into Criminal Law with a stack of mid-term bluebooks.

“After teaching for over a hundred years,” he says, “I'm convinced of only one thing: there's no good way to distribute these.”

In keeping with the Notre Dame approach of “blind grading,” the test booklets do not list our names, only the the last four digits of a student's Social Security number.

Dutile arranges the bluebooks in five numerical piles at the front. Row by row we walk forward, docile, like sheep to the slaughter.

On the way back to my seat, I flip through the pages. There’s a “5” written after the last paragraph.

Dutile says he didn’t compute letter grades. Rather, he gave us points based on how well we detected and discussed the issues.

We review the exam. There were five major issues, Dutile says, each worth four points.

Five out of 20! That’s terrible – an F by percentage, maybe a D- on a don't-flunk-anyone curve! It hits me gobsmack in the face. Wow! In 18 years of full-time schooling, I’ve never gotten a grade this low.

Dutile lists the issues:

The quantum of evidence on which Officer Foley based his search of banker Bill Brown.
The three intrusions by Officer Foley: the stop, the request to exit the car, the pat-down.
Officer Foley’s search of the trunk and the metal container.
The consent given by Brown’s wife for Officer Foley to search the suspect’s home.
Whether that evidence derived from Officer Foley’s search was tainted and therefore inadmissible in court.

I came to the wrong conclusion on the first three issues and completely ignored the last two. Ye gads! I feel nauseous.

Dutile doesn't linger. We finish the last three cases on search-and-seizure, then begin a new section on the Fifth Amendment privilege against self-incrimination: “No person... shall be compelled in any criminal case to be a witness against himself.”

Dutiel says the principle often runs counter to our instincts. “If I ask whether you cheated on the examination, and you say, ‘I refuse to answer on grounds that it may incriminate me....’” He shakes his head. “That wouldn't be the kind of relationship I'd expect between instructor and student.”

Dutile gives another example. “Suppose when my children were younger, I asked, ‘Dan, did you slap Patty?’ He said, ‘Hey, Dad, read the Constitution. I don't have to answer that!" We laugh and Dutile waits us to quiet down. “Normally what I'd do in a situation like that is grant immunity and jail him for contempt.”

Dutile explains the Fifth’s origins in ecclesiastical courts. He says that a person’s viewpoint of this legal privilege depends on the type of government. “If you live in a jurisdiction that’s fair and unoppressive, the less you think you need the Fifth. But if you live in an inquisitorial state, the more you think, ‘this Fifth Amendment works out pretty well!’”

We learn that it’s unconstitutional for a prosecutor to make adverse comments about the defendant’s use of privilege.

According to Dutile, there’s no telling a jury, ‘And if Mr. Charles Manson were actually not guilty, why doesn’t he tell his whereabouts during the night in question!”

However, the issue may be skirted, Dutile says. “If I were a prosecutor, I might say, ‘Now you can’t hold it against Mr. Manson for not testifying.’ Then I’d wait. ‘But you can look at the evidence presented. And even though Mr. Manson didn’t tell us where he was on during the murders...’ Dutile pauses, “it’s clear from the forensics that he was there.’”

Duties closes with a final thought on the Fifth Amendment. “Consider that the protection against self-incrimination may be more important in the long haul than over this weekend. As rights erode, they become much more difficult to re-institute.”

Class ends and, head down, I hurry back to the library. If anyone asks about my grade, I will plead the Fifth.

* * *

Week Ten, Part 1 - Notre Dame Haters

2006-08-17T22:19:00.000-04:00

Fall break ends too soon and it’s back to class on Monday. I walk in from the parking lot with Dan Gag, a fellow Minnesotan. The air is cold and a north wind whips around us.

“Damn, it feels good to be sober,” he says.

During break, Dan stayed in the Twin Cities and hung out with Hamline friends, now 1L’s at the U of M. He asks what kept me busy.

“Reviewing questions from the mock mid-term.”

Dan laughs. “That’s as believable as the O.J. verdict.”

We talk football as we hurry past DeBartolo Hall toward Notre Dame Law School. After a win over Southern Cal, the Irish have jumped to number 12 in the AP poll.

Dan says he watched the game at a sports bar in Minneapolis. “Almost got myself punched.”

“How’s that?”

“Well, when USC fumbled, I yelled at some dipstick: ‘Hey, asshole, God’s on our side!’”

“Then you probably deserved it.” I shake my head.

“There’s a lot of Nordame haters out there,” Dan says.

I laugh. “Used to be one myself. Then I got accepted.”

* * *

Week Nine - Go Irish, Beat Trojans

2006-08-16T20:06:00.000-04:00

Fall break is as beautiful as I imagined. Sleep. Get reacquainted with Terri. Sleep. No Professor Rice put-downs (“What! Did you read this case in high school?”). Sleep.

On Saturday I take Lauren, age five, to Notre Dame’s game against the University of Southern Cal. After wins against Washington and Army, the Irish are now 5-2. USC, however, is undefeated and ranked fifth in the country.

Lauren and I park about a mile away from the campus stadium. On the way in, we practice our cheer: "Go-o-o-o Irish. Be-e-e-eat Trojans."

I tell her all about Notre Dame football. Paul Hornung. Joe Montana. The Four Horsemen. Win one for the Gipper. Touchdown Jesus.

USC is the 3½ point pick, but the weather favors Notre Dame. It’s cold, about 40 degrees with a windchill of 25. Lauren and I are bundled up like Minnesotans: sweat pants, turtlenecks, winter coats. I sport a blue and green cap with a gold monogram. Lauren has on a headband of the same colors.

We enter campus at Notre Dame Avenue. The branches of the roadside elms form a red and yellow archway.

"You see that building straight ahead with the round top?" I ask.

Lauren nods, and the leprechaun painted on her cheek jumps up and down.

"That's the Golden Dome. The Irish helmets look just about like that."

"Go-o-o-o Irish. Be-e-e-eat... what's the other name?" Lauren asks.

We stop at Notre Dame Law School and warm up. Then in the short walk to the brown-brick stadium, the rain starts. We find our wet bench in the student section. ND's color guard and marching band highstep onto the field. The blue raincoats of the band are shiny with droplets. With them comes the leprechaun, natty in a emerald suit, tie, and hat. He dances around the end zone and mimics the band's march steps.

Lauren points at him. "Why's he so short?"

"Leprechauns are supposed to be tiny."

"Where's the leprechaun for the other team?"

"They're the Trojans."

Lauren tightens her pink glove into a fist and bounces it to the beat. "Go-o-o-o Irish. Be-e-e-eat Trojans."

We’re surrounded by chanting students. Some have clovers painted over their entire faces. Others wear Golden Dome helmets with tiny Virgin Mary’s attached on top.

Notre Dame scores first after a 14-play drive to our end of the field. Fullback Mark Edwards runs nine yards for a touchdown. Lauren and I whoop and holler, then clap along to the “Victory March.”

"I'm hungry," Lauren says.

"Here, have a Twix bar."

"I'm cold."

"Here, sit on my lap."

"I can't see."

"Here, use the binoculars."

This toy occupies Lauren until the fullback scores again. Notre Dame now leads 14-7, and the fans sense upset.

Lauren points to the letters on the back of a nearby yellow jacket. "What does u-s-h-e-r spell?"

“Usher.”

"Oh, does he take money?" Lauren asks.

I explain that he’s a football usher, not a church one. Notre Dame scores again: 21-7.

"I can spell 'dad.' D-a-d. I can spell 'mom.' M-o-m. I can spell 'off.' Is that o-f-f or f-f-o?"

By now I’m cold too. It’s almost halftime. Lauren says she’s ready to go.

Back home I watch the second half on NBC, as the Irish win 38-10. Lauren sleeps, then shows Terri how a leprechaun highsteps around the coffee table. Next she teaches Stephie how to cheer.

"Go-o-o-o Irish. Be-e-e-at Trojans."

* * *

Week Eight, Part 8 - Mock Mid-terms

2006-08-15T19:57:00.000-04:00

Five minutes before the start of mock mid-terms at Notre Dame Law School, I’m still in the Kresge Library, cramming for Criminal Procedure. I’ve half-way memorized the holding for each major case, but can’t seem to get all the phrases right. It would be wiser to work through my notes doctrine-by-doctrine, I know, but there isn't time!

Some of the holdings are basic, like Acevedo: “Police may search a closed container located in a car, without a warrant, if probable cause exists to believe it contains contraband.”

Others legal principles are long and meaty. For Terry I memorize: “Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.”

At 5:59 p.m., I sprint down the stairs to Room 121. The lecture hall is packed. From the podium at the front, I grab four blue books and a packet labeled “Practice Exams.”

Anthony Wisniewski and Todd Wesseler, my study-buddies from Contracts, wave me over. I squeeze into the chair between them.

“You’re late,” Anthony growls. His forehead is moist and both pupils dilated. He mutters profanities under his breath and something about being “intellectually strip-searched for three hours.”

“No reasonable expectation of privacy,” I joke, citing Katz.

“Begin!” calls the proctor.

I read the instructions. We must complete four exams in three hours. That gives us 45 minutes apiece. When we take the graded exam in December, the length of each test will be extended to three hours.

Next I skim the questions from Professors Dutile, Kaveny, Bauer, and Rice. Each is a long fact-pattern full of multiple characters and unusual events.

The Torts exam begins: “Able, a student at Baker Storm Door Company and Dental School, drives from his apartment to the school on October 15th. The school was located on the main street of Carriesville, of which city Delta was the mayor. Delta’s uncle, Easy, had been a dentist until his sudden death.”

I search out the intentional torts as best I can and match the facts to the legal elements. Milk it! Rice requires that we limit our answers to three pages. “Any excess will not be read and will not count in your favor.”

After 45 minutes, I move on to Crim. The question is a 4th Amendment search-and-seizure issue. “On July 1 in Sanford, Maine, Police Officer Fred Foley received an anonymous telephone call. The caller alleged that Bill Brown, a local banker, always carried a concealed and illegal gun.”

On a scratch sheet, I jot down my 17 case names and holdings. I search for legal issues in the fact pattern. For each one I spot, I give a short context, state the rule of law, apply it, then draw a conclusion. As the Irish say, it's great CRAC.

Crim takes me an hour and a half before I finish – twice the allotted time. Still I’m pleased. In front of me is a bluebook full of 4th Amendment law, a subject about which I knew nothing eight weeks ago.

For the last 45 minutes I work on Contracts. Open book, open note. It’s beautiful.

The first graph of the mock exam reads: “George had roto-tilled his lawn, readying it for some sorely needed seeding. Unfortunately, he injured his back and was not able to seed the lawn himself. Time was of the essence because it was getting hot. George asked his neighbor, Gracie, for help. She agreed to help, worked for three days, and completed the job. Nothing was said at the time about payment. Months later, while admiring the lawn, George told Gracie that it was time for him to ‘settle up’ with her. He asked her how much he owed her and, after protestations, she replied that $250 would be fine. Later, George refused to pay anything.”

I hone in on the “functional reasons for legal formalities.” A written contract in this situation, I write, would have provided evidence of the agreement between George and Gracie. It would have acted as a deterrent against inconsiderate action. And it would have channeled economic or sentimental objectives into defined and recognizable channels.

Wonder what that means, I think to myself.

At 9:00 p.m., I put down my pen. Whew! I turn in bluebooks for Torts, Crim, and Contracts.

Downstairs to the student lounge, 1Ls are grinning and giving each other high fives. Guys and girls who for eight weeks barely made eye contact are huggin’ like long-lost relatives. Fall break starts tomorrow! No Socratic. No fact patterns. No casebooks.

I see Anthony by the door. He wonders whether I’m going to Senior Bar.

“Naw.”

“Come on! Everyone’s going. It’s the great law school hook-up.”

“Nope. Gotta get home,” I say. “Haven’t seen my wife since the week started.”

He asks what I thought about the test.

“Didn’t get to CivPro, but other than that, okay.

He nods. “Three out of four isn't bad. Some people just did one and left.”

I ask how he found the exams.

“Not as hard as I expected,” he says. “Mostly it feels good to know I won't flunk out.”

* * *

Week Eight, Part 7 - Study Group

2006-08-14T22:28:00.000-04:00

At 5:30 p.m. on Wednesday, I stop by the main office of the Kresge Law Library and chat with Ken Kinslow, the evening supervisor. He’s the friendliest guy on campus and can talk with knowledge on any subject from Russian literature to Cajun cuisine. Sometimes I call him “Comrade,” as we both taught English in China.

Ken hands me the key to a second-floor study room. Yesterday I reserved it for this evening. Even though the law library is open 24 hours a day, the front desk and study rooms lock at 10:00 p.m. Ken tells me to bring the key back by 9:30.

Upstairs I meet with two other 1L’s, Todd Wesseler from Bowling Green and Anthony Wisniewski from “The Catholic University of America” in D.C. As undergrads, they both studied political science, by far the most popular major at Notre Dame Law School.

Our little band is not a study group per se with weekly meetings and regular note-sharing. Rather, it’s more like an ad hoc committee with one goal: to hammer out a Contracts outline for tomorrow's mock mid-term.

Anthony’s notes are minimalist, mine the exact opposite, and Todd’s somewhere in between. We start with the first case, White v. Benkowski, a lawsuit involving neighbors who shared water from the same well.

Complaint. Discovery. Consideration. Affidavit. Compensatory damages. Summary judgment. Prayer for relief. All the legalese that seemed so foreign on Week One now rings more familiar.

The biggest problem we have is deciding what’s important enough to include in our outline. In class, Professor Kaveny told us that perhaps the plaintiff’s lawyer in White misstated the cause of action. It could have been a tort claim instead of breach of contract. I believe this point is key. On the test, we should look for facts that raise the issue of a potential tort. Anthony and Todd think it’s irrelevant. They argue that the significance of the case is the difference between compensatory and punitive damages.

I want to include Kaveny’s pithy sayings, like “Being a good lawyer is noticing the elephant in the middle of living room!” Teachers love to hear students echo their wisdom, I argue.

Once again, Anthony and Todd vote me down. They think an outline should be spare, limited to the legal doctrines of greatest significance.

“But this exam is open note,” I say. “It’s not like we have to memorize anything!”

As the evening wears on, Anthony gets louder and more East Coast Rude. Good thing our study room is soundproof. It’s annoying because Anthony’s notes are terrible and his memory worse. Todd, on the other hand, is so meek that I can’t even picture him as an attorney.

By 9:30 we have two-thirds of an outline. We call it a night and make no plans to meet again. Our personalities and study styles don't mesh.

Downstairs I ring the bell at the front desk. Ken’s around the corner reading a classical Chinese novel. I give the key back and he asks how the session went.

“Well... made me wish I were still teaching freshman comp.” I sign my name in a blue notebook to verify we’ve cleaned out the study room and locked the door.

“Oh, I think you’re doing the right thing, gettin’ a law degree. With English, if you don’t get on that three-year tenure track right off, you’re left to wander. And after a while you get tired of all the drifting, although sometimes one does wonder if it could’ve been different.”

I laugh and ask Ken about his degree.

Ken says he has a Ph.D. in English.

“Wow! That’s impressive.”

“Nah. It’s not worth shit.”

I laugh, not sure whether or not he's kidding.

Nevertheless, instead of going home, I trudge back up to the third floor atrium and find an open carrel. There’s no backtracking to the world of English. Even though it’s late, I'm not leaving until my Contracts outline is done.

* * *

Week Eight, Part 6 - Contracts: The Game of Law School

2006-08-13T22:21:00.000-04:00

Professor Cathy Kaveny starts class by propping our supplementary text, “Contract Law: Selected Source Materials,” on the podium. A mere 312 pages, the purple paperback contains the Restatement Second of Contracts and Articles 1, 2, and 9 of the Uniform Commercial Code (“UCC”).

The book’s editor is Steven J. Burton, a professor at the University of Iowa College of Law. He writes in the first paragraph, “The law of contracts originated as common law – the law made by judges on a case-by-case basis. Increasingly, however, statutes and regulations – laws enacted by legislatures and administrative agencies – govern contractual transactions.”

Adjusting her neck scarf, Kaveny echoes the same theme. The Restatement is the general common law, she says; the UCC is statutory. It's a distinction I feel like I should have learned long ago, perhaps in a government or history class.

Kaveny suggests we highlight the provisions of the UCC that we review in class. “This will help you distinguish the common law and get it to gel better in your brain.”

We discuss how the UCC was designed to bring uniformity to commercial transactions. Kaveny says it has been adopted with modifications in all fifty states. There’s a touch of awe in her voice, as if this event were a miracle.

“Remember, the UCC applies to sale of goods,” Kaveny says. "If you have services, you're in the realm of common law.”

We open our casebooks to Keith v. Buchanan, a 1985 case from the California Court of Appeals. Kaveny says we will use it to explore the concept of “obligation arising from statutory warranty.” Briefless, I follow along.

The plaintiff, actor Brian Keith, bought a ocean-going sailboat for $75,000. Though a sales brochure described the it as “a picture of sure-footed seaworthiness,” Keith found the boat unfit for sailing. He sued, alleging breach of warranty.

I remember watching Keith on the TV series Family Affair. Uncle Bill was always so nice to Buffy and Jody. And Mr. French too. I can’t imagine him suing anyone.

Kaveny asks, “Should Mr. Keith have been able to rely on the statements in the literature as to the boat’s seaworthiness?”

“Yes!” someone in the back calls out.

Kaveny glances toward me and I nod, as if the answer were in my head as well.

We look at section 2-313 of the UCC: “Express Warranties by Affirmation, Promise, Description, Sample.” According to Kaveny, a statement by a seller of “this car has been driven less than 10,00 miles” creates an express warranty. However, “this is a wonderful car” does not. It’s mere puffing, a statement of opinion not meant as a factual representation.

Kaveny sums up. “A description of goods is likely to create a warranty. Advertising, however, is closer to puffery.”

At the end of class, Kaveny talks to us about the upcoming mock mid-term. “You need a little bit of ironic distance from the self-imposed pressure,” she says. “And work to still stay yourself – kind and friendly – even when you're under stress. You wouldn't believe the number of attorneys who snap at their secretary when under duress.”

As we close our books, there’s one more bit of wisdom. “How well you play the game of law school is not necessarily how good a lawyer you'll be.”

I find her statement strangely comforting.

* * *

Week Eight, Part 5 - Honor Code

2006-08-12T02:28:00.000-04:00

After class I walk to the student lounge and find a seat in the corner. To my left is a fellow 1L, Bryan Lord, typing away on a laptop. There’s a green apple wedged in his mouth, like a roasted pig.

Byran grew up in Minnesota and attended college there, just as I did. He graduated from Concordia College in St. Paul with a degree in poly-sci and business administration.

To my right, two upperclassman discuss life after Notre Dame Law School. I overhear the first one say, “It’s like autopilot. Corporate law requires no ability to research or think. ”

His friend answers, “But you pay for it by having to sit on airplanes with some jackass CEO who’s all about how-good-do-I-look.”

After only eight weeks of law school, Bryan and I have a more immediate concern: the mock mid-term. Between bites of food and glances at the Observer, we rant about how little time there is to prepare. I tell Byran my game plan is simple. A quick-and-dirty outline in Contracts, since the test is open-book. In Torts, I’m gonna ignore negligence and simply memorize the elements of each intentional tort. Crim will get the longest look. I plan to learn the major, legal principle for each significant case. As for Civil Procedure, a disaster from Day One, I’m not sure what to do. The subject matter has me flat on my back.

Our teaching assistant from Legal Writing, a 3L named Rosi Lozada, stops by to tell us she sent our memos back via campus mail. Rosi is considered by all to be a higher order being. She’s not only brilliant and beautiful, but kind as well. Last year Rosi declined an invitation to join Law Review, Notre Dame’s most prestigious journal, so she could devote sufficient time to the Legal Aid Clinic.

We ask her about the mock mid-terms.

She says, “Let me warn you, exams are nothing like class prep. That's just the way it is. Don't rely on hand-me-down outlines. Do your own by reducing everything to a form you can study. Look at old exams to find out what your prof wants. For Rice, ‘the law’s the law,’ so make flashcards and memorize it.”

Bryan asks Rosi why we can’t use laptops to type our answers. He argues we’d be able to give more information in a better, more readable form.

I nod.

Rosi says the administration is afraid students would access their notes during the exam. “There’s not enough control over the process,” she says. “And not everyone has computers.”

Brian seems a little peeved. “We’re supposed to be on an honor code, but there's a limit to how much they trust us.”

I pack up to leave. Beside me, the upperclassmen are still deliberating.

“Even in a corporate setting, law means you are good,” says one.

“But also that you’re somebody’s bitch,” answers the other.

“Know what?” the first one says, “That’s a very Christian thing to do: to give of yourself.”

* * *

Week Eight, Part 4 - Torts: How To Take A Fact-pattern Exam

2006-08-11T18:56:00.000-04:00

In Torts, Professor Charles Rice says that the mock mid-term will only have one section: a long fact-pattern. Unlike the final exam, there will be no objective questions or short essay.

“What do you do with a fact-pattern?” Rice asks. He answers it himself: “You find the issue, milk it, and move on! How? First you read straight through the fact-pattern. Second, you read the thing again and mark it up. Now you’re ready to write an answer.”

Rice runs his hand over the top of his crew cut, waiting for us to stop writing and look up. “The fact-pattern will have a lot of issues, and you get points for each one you spot. Tell me the issues and who wins. Anything that's in your fevered little brain, put on the paper! As long as you find the issue, decide it, and don't make an error of law, you can't be wrong.

“Don't give me a big lecture,” Rice adds. “Don’t tell me, ‘This is very interesting.’ Don't talk about conversion like it's trespass. Be careful with transferred intent.”

Rice glares at us like an angry drill sergeant. “We’ll find out if some of you are treating this subject like a tourist.”

I’m not sure exactly what that means, but assume it implies lack of diligence. Guilty as charged. After eight weeks, my torts notes are still a tangled mess. Instead of writing my own case briefs, I been copying them out of the study guide. I’ve yet to start memorizing even the elements of each intentional tort.

In short order, Rice reviews the basics of negligence: “DTY, BRCH, CSTN, DMGS.” Then he quizzes us on six cases dealing with negligence per se. This doctrine “refers to acts which implicitly involve a breach of duty, obviating the need to expressly allege the existence of a duty.”

I write down “automatic negligence” in my notes.

Rice says, “Statutes are a shorthand way to define duty. For example, if you speed, have you breached the duty of care. However, issue of causation is still determined by jury unless it's so obvious that a reasonable person could not disagree.”

We discuss whether a statute can have more than one purpose. Rice says, “Yes, unless it's written in stone on Mt. Sinai.”

After class, about fifteen or so “gunners” congregate at the front around Rice. They pepper him with questions about the mock mid-term. I follow them down, just to make sure I’m not missing the secret of law school success.

To my surprise, Rice is not helpful. He steers away from specifics and dismisses some questions with the wave of his hand.

He ends the Q&A by raising his voice slightly so we can all hear. “Remember, a D or an F doesn't mean you should head for the 13th floor of Hesburgh.”

It’s a joke, but on my way to lunch, I wonder whether the pressure of Notre Dame Law School has ever driven a student to suicide.

Like they say, “D is for die."

* * *

Week Eight, Part 3 - Curse And Beat The Ground

2006-08-10T22:47:00.000-04:00

It’s time for my annual physical, so I leave Notre Dame Law School early and drive a half mile to the South Bend Clinic. As I wait in the examination room, I read the diploma on the wall. The random doctor they’ve assigned me is Michael A. Strzelecki, Indiana University School of Medicine.

Good Polish name, I think. In South Bend, the Dyngus Day capital of the world, the -cki or -ski suffix is a professional advantage.

Beside the diploma hangs a framed poster. At the bottom it reads: “In prehistoric times when men cursed and beat the ground with sticks, they called it... witchcraft. In modern times when men curse and beat the ground with sticks, they call it... golf.”

I laugh to myself.

The doc comes in and introduces himself. He’s medium height, dark hair, maybe ten years older than I am. To my relief, he appears competent and professional. While he pokes and prods me, I ask about medical school.

Strzelecki tells me it’s four years plus another three to five as a resident. “Sure am glad to be done,” he says. “So much of what you learn is just rote memory. And 90 percent of that I never use. It might be different in law school, but I doubt it.”

“You’re a cruel man,” I say.

After Strzelecki’s done with me, I drive home and prepare supper.

Terri makes it back from Chicago at 6:00 p.m. Her business trip was mini-disaster, she says. AT&T’s regional office in Indianapolis didn’t get her the pricing information on time, so her bid was incomplete. And the person responsible for compensation questioned whether Terri’s biggest customer, an infomercial marketer, is meeting its billing requirements.

“So what’d you say?” I ask.

“I pointed out that the figures we agreed to were gross, not net. It’s right in the contract! In fact, our client is billing way over its commitment levels!!” Terri slaps the kitchen counter.

“So what’s the problem?” I ask.

"The problem is that with AT&T, you have to do everything three times! And it’s still not right!! I’ve never seen such a screwed-up company."

After supper I retreat to the basement. I need to review my CivPro notes for the mock mid-term. All told, I have 92 pages of word-processed text from the first 21 classes. Pennoyer v. Neff, our first case, seems like years ago. Unfortunately, I don’t feel like I understand it much better now than the first time through.

After two hours of working through my notes, I’m exasperated. Instead of a clear outline, I have pages and pages of undigested legalese. Unbelievable! The subject matter is too extensive to grasp it all. And I can’t even seem to figure out the must-know material. Worse, if Strzelecki is right, most of what I eventually memorize will be worthless to me as a lawyer.

In post-modern times, when men curse and beat the ground with sticks, they call it... law school.

* * *

Week Eight, Part 2 - CivPro: Motion To Dismiss

2006-08-09T19:52:00.000-04:00

In Civil Procedure, Professor Joseph Bauer discusses the mock mid-term scheduled for Thursday night. With a slight smile and his chin cocked up, he seems to enjoy our anxiety.

“There will be an extended fact pattern dealing with a court’s attempt to exercise personal jurisdiction over a non-resident defendant,” Bauer says. “You’ll need to recognize the issues and identify the applicable rules.”

He strokes his beard, as if deep in thought. “Two suggestions. First, your answer isn't as important as how you got there. Second, simply repeating the facts is not a good way to start. Facts only become relevant as you integrate them into your analysis.”

Bauer will mark our tests over fall break, the one-week vacation starting Friday at noon. “Teaching is like heaven,” he says, “except for faculty meetings and grading papers.”

We laugh, more nervous than amused.

Bauer waits for us to quiet down, then begins the regular class work. “For the last seven weeks, we’ve learned what constitutes sufficient personal jurisdiction. Today we begin a new section – challenges to jurisdiction. We’ll also look at the Federal Rules of Civil Procedure.”

Bauer questions a student about the facts and procedural history in Harkness v. Hyde, a case from 1878. I expect the Socratic dialogue to resolve the legal question of “whether an American Indian on the Shoshonee reservation is subject to the personal jurisdiction of an Idaho court.”

No! After noting the court’s reference to his favorite case, Pennoyer v. Neff, Bauer primarily wants to discuss whether the defendant could on appeal object to jurisdiction. Put in compound-complex Bauer-talk, “If a party a) makes an objection to jurisdiction, here by special appearance, and b) if that objection to jurisdiction is overruled or rejected, and c) and the case is then litigated on the merits, has the party waived its objection to jurisdiction on appeal?”

In my brief, I’ve totally missed Bauer’s main point. I’m ice-cold at the thought that Bauer could have drilled me. Gotta do better, I think. No more book briefs while watching cartoons!

Bauer holds up our supplementary text, the Federal Rules of Civil Procedure. It’s a green paperback, about 700 pages long. On the cover is a black and white picture of the Supreme Court building.

“For the bulk of the history of the federal courts, there were no special rules of procedure,” he says. Bauer’s in lecture mode and everyone relaxes. “Each court used the rules of the state in which it was situated.”

Bauer summarizes the 1934 Rules Enabling Act. It authorized the Supreme Court to promulgate uniform rules for federal courts.

“Since 1938, over half the states have rules modeled closely on these,” Bauer says. As is the norm, he mentions nothing about Indiana in particular.

Bauer reads aloud Rule 12(b) and explains the subsections which deal with lack of jurisdiction. We then turn to “Form 19,” titled “Motion To Dismiss, Presenting Defenses Of Failure To State A Claim, Or Lack Of Service Of Process, Or Improper Venue, And Or Lack Of Jurisdiction Under Rule 12(B).” It’s the first legal form we’ve seen all year.

Bauer reads the first sentence: “The defendant moves the court as follows:” He looks up and waits for eye contact. “A party moves, it doesn't motion.”

I’m hungry and tired of thinking. It’s almost time to go. Students begin to shift in their chairs and click their pen caps shut.

A student in the fourth row, Scott Delaney, raises his hand. He’s a former disc jockey with no fear of expressing himself. “Motion to dismiss?”

The class laughs at this challenge to jurisdiction. Students behind Delaney clap their hands.

Bauer thinks for a second, then smirks. “Granted.”

* * *

Week Eight, Part 1 - Lawstudent Man

2006-08-08T23:13:00.000-04:00

It's 6:40 a.m. on Monday and I’m watching cartoons in the family room with Stephie, age seven. Garfield finished up ten minutes ago. Now it’s the Super Friends with all the heroes I loved as a boy. Superman. Batman and Robin. Aquaman. Wonder Woman. I'm surprised the show is still on TV.

Terri (a/k/a "Telecom Woman") left at 6:00 this morning for Chicago. She’ll be taking her biggest customer, an infomercial marketer, on a tour through an AT&T call center.

So I’m on kid patrol.

Stephie ("Eggshell Girl") is already dressed for school, white sweater and blue skirt. She burrows into her favorite corner of the leather couch. In lieu of breakfast, she sips a Capri Sun, six ounces of over-packaged fruit juice.

I'm on the middle cushion. Between gulps of apple cider, I book-brief my cases for CivPro. I mark the major facts and issues in Harkness v. Hyde, an 1878 Supreme Court decision regarding personal jurisdiction. My only weapon against The Dastardly Professor Bauer and his fiendish questions is a large-barreled, chisel-tipped, sky-blue highlighter.

I tell Stephie that when I was her age I used to watch the Super Friends.

She arches an eyebrow. “Garfield too?”

“Nope. The Original Eating Machine had yet to be created.”

Stephie stares at me like I’m ancient.

Several minutes later I reach over and tap her foot. “In three years I’ll have the ‘power of attorney.’ Maybe they’ll create an MPT character.”

No response.

We watch a commercial for Reese's Peanut Butter Puffs, a new breakfast cereal.

“Those look good,” I say, thinking about a childhood limited to Corn Flakes and Wheaties.

Stephie nods. Either she’s not much for morning chit-chat or I’m to be disregarded, like Jonathan Q. Arbuckle, Garfield’s owner.

Lauren ("Sleeping Girl"), age five, is still in bed. After she gets ready, I’ll drop her and Steph at school, then drive up to Notre Dame.

As of Friday, first semester will be half over. Professor Bauer still hasn’t called on me. "Please, Lord, don’t let it be today. From now on, I promise, no more book-briefs."

I look around the room. Entertainment center. Fireplace and mantel. Wall-to-wall carpeting. Breakfast bar. Bay window. French doors. I grew up poor and our old house didn’t have any of these features.

How’d I wind up here!? I wonder. A year ago I was an English teacher, single, living in Minnesota. Now I’m a Notre Dame lawyer-to-be, married with kids, and the Original Studying Machine.

It still feels like make believe.

* * *

Week Seven, Part 7 - Legal Writing: Distant Thunder

2006-08-07T20:21:00.000-04:00

As we wait for Legal Writing to begin, the buzz is all about the First Couple of Notre Dame.

It’s only hearsay, but sources say Professor Teresa Godwin Phelps is getting divorced from husband Digger, now a basketball analyst for ESPN. Comments range from “ain’t no fun being married to a feminist” to “he says she hit him with a fry pan.”

Too bad, I think. Perhaps the break-up is why Professor Phelps neglected to mention Digger in her self-introduction on the first day of class.

There’s no official comment on the dissolution action. I do notice that Phelps’s memoir, The Coach’s Wife, has disappeared from the display case on the first floor.

Perhaps she’s writing a sequel: The Coach’s Ex-Wife.

In class, Phelps begins a new section: “opinion letters.” This phrase is a term of art. It refers to written correspondence by the lawyer to a client answering specific legal questions.

“Be careful,” Phelps says. “There are some cover-your-butt things in case this letter is entered as evidence.”

The opinion letter has four elements. First is context. “Let the client know what you're talking about,” Phelps says. Second is a recitation of operative facts. “If there’s been a misunderstanding, you'll need to know right now rather than at trial.” Third is an explanation of the law in terms the client can understand. “Here you’ve changed roles, from legal analyst to counsel.” The fourth element is “a list of anything the lawyer needs from his or her client.”

Phelps adds, “If your office memo is well done, you can just translate it into an opinion letter.”

I smile. It’s the first time all semester that a prof has indicated something might be easier than we expect.

At the end of class, Phelps mentions that next week there will be mock mid-terms in Torts, CivPro, Crim, and Contracts.

Normally in Legal Writing lectures, there’s a handful of students reading the Observer or dozing off. At the mention of exams, though, we all perk up.

Phelps encourages us to use CRAC (Context-Rule-Application-Conclusion) on any legal issues we spot. It’s the same approach we employed on our office memo.

“What’s different about law school exams is the fact patterns,” Phelps says. “It’s not like undergrad where you only have to state the elements of battery. Answering a fact pattern goes far beyond grocery lists. And well it should. I don't want to hire a lawyer who has memorized the laws but can’t apply them.”

Phelps tells us that her colleagues will give too many facts on the mock exams, and we should be suspicious. “Separate the material from the immaterial. ‘It was a blue truck’ is probably a red herring. But for the most part, a professor puts a fact in the pattern because there's some weird little rule out there.”

She adds. “Now what I’ve just told you is deceptive – because there is a boatload to memorize. The difference is, rote memory is only half the battle. And finally, because of the time constraints, there’s a huge chasm between knowing the material and getting it down on paper.”

Phelps smiles at us like we're all freshman point guards about to face a full-court press. “Law school exams are unto themselves,” she says. “There's nothing else like ‘em.”

* * *

Week Seven, Part 6 - Aspirations

2006-08-06T17:46:00.000-04:00

After Torts, I introduce myself to Dr. Thomas L. Hauck, M.D., and ask what other classes he has. I’m curious because I’ve never seen him around Notre Dame Law School, either in the library or student lounge.

“Just Torts,” he says. “The last two years I’ve been taking one class per semester. Plus some correspondence work.”

“Interesting,” I say. "But I thought part-timers were verboten at Notre Dame!”

Tom nods. “I’m in the slow learner section... move my lips when I read.” It’s a favorite line of Professor Rice.

“No, really,” I press him, “how’d you get in?”

Tom says ND Law made an exception for him. "I’m buddies with Dean Link's best friend – who happened to give the school eleven million dollars."

"No way! What's his name?"

"Art Decio."

I smile. Decio is chairman of the board and CEO of Skyline Corporation in nearby Elkhart. In the telecom wars for AT&T, Terri has spent months trying to win Skyline’s long-distance traffic of $1.2 million a year.

Changing the subject, Tom asks what kind of law I want to practice.

I joke, “Dunno, maybe hairdresser law.”

He laughs. “At a boutique firm?”

Tom says that if he finishes his J.D., he'd like to retire early and do consulting.

Wouldn’t we all, I think. Wouldn’t we all.

* * *

Week Seven, Part 5 - Torts: Sue All The Lawyers

2006-08-05T21:03:00.000-04:00

In Torts, Professor Rice is pounding us on the topic of negligence. After reviewing the elements generally, we turn to the cases grouped “Standard of Care (Professional).”

“Malpractice applies to all kinds of professionals,” Rice says, “not just lawyers.”

Oooh, our introduction into malpractice, broadly defined as "injurious conduct by an person acting in a professional capacity." Rice has everyone’s attention.

The issue in the first case, Heath v. Swift Wings, is whether a pilot was negligent in a small plane crash which killed two persons. The holding from the case emphasizes that the standard of care is not a subjective one, but objective.

Rice applies it to lawyers. “When you get out of here and pass the bar, you’ll immediately be held to a standard of the knowledge, training, and skill of the ordinary lawyer. Legally, as soon as you’re sworn in, you can undertake a forty-million-dollar leveraged buyout.” With the palm of his left hand, Rice taps on the whiteboard marker held in his right fist. “But be careful or you'll also be a defendant.”

In the next case, Hodges v. Carter, a drugstore owner sued his lawyers for negligence. The court held that the attorneys were not liable. Their mistake was over an unsettled point of law. And the lawyers had acted in good faith and the honest belief that their advice was well-founded and in the client’s best interest.

Everyone in class concurs. Just as doctors are given discretion in making a diagnosis, Rice notes, lawyers may make reasonable errors in interpretation.

We move on to medical malpractice. Rice says that although med-mal is a major body of law, we won’t spend long on it. “This course is just a flyby look at the issues,” he says.

Rice then announces that we have a “real doctor” in class, Tom Hauck, a local ophthalmologist. We turn to gawk. Hauck is sitting in the back row. He looks to be in his mid-40's, blonde hair a little longer than expected.

The student beside me rubs his thumb against his first two fingers: money.

Morrison v. MacNamara, our first med-mal case, revisits the issue of objectivity. The court held that varying geographical standards of care are no longer valid.

Rice asks Hauck. “Would you rather have an aneurysm outside Northwestern Medical Center or Dr. Thumb's office in Osceola?”

“Chicago, of course.”

“Are the docs out in the sticks supposed to be current with all the literature?”

“Absolutely,” says Hauck.

“Let’s apply this holding to the legal environ. Can an attorney in South Bend handle a complex transaction case?” Rice asks.

“I wouldn’t want him doing it for me, but yes,” Hauck says. “As long as he has the books and knows when he’s over his head.”

“Good. Remember, if you undertake to do something, you're bound to perform at an objective level. You can't say, ‘I’m just an eye doc dabbling in law.’"

We laugh, and Tom squirms a bit.

Rice steps to the side of the podium. “The malpractice business is essentially negligence, but there’s a little bit of class warfare here. Doctors and lawyers are professionals. We have an advantage over the hairdresser who is strictly liable if the client walks outside and her hair goes up in flames.”

We laugh in disbelief.

“No, it’s true," Rice says. "Happened to a woman in California.”

We laugh again and close our casebooks.

“Finally, if you sue a physician, you must follow all the malpractice procedures of the state. And be sure to check the local statute on malicious prosecution.”

* * *

Week Seven, Part 4 - Survival of the Fittest

2006-08-04T18:47:00.000-04:00

I sit and study all day. No Observer. No email. No journal entries. By 4:00 p.m., my back aches and butt hurts. I stand and stretch.

In my folder is an Arthritis Foundation booklet that I’ve picked up for Terri at Notre Dame’s Health Services. It states: “The human body is the product of millions of years of evolution, but for a very long time this development has been at a standstill. Children born today are the same and have the same physical equipment as did our pre-historic ancestors.”

Hmmm. I think about the lecture by Philip Johnson two weeks ago. Then comes my eureka moment. If Darwin were right, succeeding generations of law students would have total recall, unbreakable concentration, and rear ends the size of beanbag chairs.

* * *

Week Seven, Part 3 - Crim: Dukin' It Out Over O.J.

2006-08-03T18:26:00.000-04:00

In Criminal Procedure, Professor Dutile has been avoiding O.J. discussions, preferring to stay on task with Terry stops and automobile searches.

The day after the verdict, however, he gives in. “I want to discuss the Simpson case from a number of different perspectives. The only precondition is we’re all going to accept any opinion advanced in seriousness and good faith. This is a university and I don't want hissing or that sort of thing.”

We discuss major themes in the trial:

process (“you can get that much deliberation on a purse snatching”),
wealth,
fame, and
media attention (“the Oklahoma City bombing trial will not be televised”).

Dutile raises the issue of race. “We all have a world-view, wherever we're from, whatever our socio-economic status. And it affects the way we see things. Maybe the blacks on the jury were receiving the evidence about O.J. through lenses that were affected by their understanding of how things work in L.A., a system that you or I didn't get exposed to." Dutile pauses. "I'm sure that I didn't in Sanford, Maine. If we had had a police officer–"

Class laughter drowns out the rest of his sentence.

Dutile continues. "It’s easy to imagine that gender issues could have trumped race. That is, a concern for battered women could have taken over the trial."

Dutile walks to the side of the room, leans against the wall, arms crossed. "Why didn't it? Eight times the police were called because this 240-pound athlete was beating up this woman. Why didn't that issue become important?"

He waits for comments. "Anybody? Yesterday we had people on television, who themselves were battered wives, applauding the verdict."

The only African-American woman in the class, Dorphine Payne, raises her hand. She's middle-aged, from Kalamazoo, Michigan, and a former IBM employee. "I think that the whole thing centers around a cultural issue. As you would make an assumption that his conduct was battery, a lot of African females may not. A lot of white females may have made an assumption there was evidence of abuse. But a black female in our community wouldn't."

"Why not?" Dutile asks, "if you wouldn't mind elaborating."

"Well, Denise Brown described instances of abuse. For example, O.J. and Nicole were out on the dance floor and he grabbed her by the crotch and said, 'This is where babies come from. It belongs to me.'"

The room is silent as Payne continues. "The sister broke down crying and we were all standing about wondering, 'When is she going to get to the abuse part?' Our approach was, 'He was doing that with his own wife rather than someone else? That's a good thing. That was complimentary to him."

Professor Dutile interrupts her. "But in all fairness, there were other instances more serious... the pictures of her bruised face."

"Right. But to me it sounded like they were fighting. That's different than battering. If you're giving, and you're battering, and you're fighting, that's not abuse. Abuse to me is somebody beating you and you're not fighting back.”

"So the gender issue doesn't arise because it wasn’t there?"

"I don't see it as being an issue at all,” Payne says, “and I don't think the African-American women on the jury did either."

Dutile looks flummoxed. I smile. It’s good to see him grapple with his precondition of accepting any opinion. And it's the first time I've heard a student push back against a prof.

Class is almost over. A student toward the front presses Dutile for his personal view of the Simpson verdict.

“I’d bet $10,000 he did it,” Dutile says, “but I did have a reasonable doubt.”

* * *

Week Seven, Part 2 - Think Like A Lawyer

2006-08-02T20:40:00.000-04:00

On the home front, I work to spend time with Steph and Lauren. It makes Terri happy and increases the “family feeling” in our ten-month-old marriage. My impulse, however, is always to escape to the basement and study.

While Terri cooks supper, I sit down on the couch and let Lauren "teach me" whatever she learned in school. She walks back and forth in front of the fireplace. Click. Click. Click. She loves the sound of her mom’s high heals.

“This is how we make the letter ‘H’ at Community Baptist,” Lauren says, imitating her kindergarten teacher.

During supper, Terri raises the issue of the Simpson verdict. She wonders about Nicole’s children. “Who will they live with?”

“Probably O.J." I say. "He's the biological."

Terri frowns at me. “Here’s a good way to get the kids back – kill your ex-wife!”

I try to lighten the mood. “Didja hear O.J. proposed to his girlfriend, Paula Barbieri? He’s gonna take another stab at marriage.”

Stephie at least thinks I'm funny and adds a one-liner of her own: “Better drink milk, cause O.J. kills.” She laughs so hard that her shoulders shake.

Lauren shouts out, “Kill all the lawyers,” her favorite line from “Hook.”

When the girls quiet down, Terri asks what they’re saying about O.J. at Notre Dame Law School.

I give her Dean Link’s statement about “presume he’s the most likely to have done it.”

“No,” she says, “Let’s be blunt – he killed two people in cold blood.”

“Come now!” I say, more out of lawyerly instinct than conviction. “No weapon, no eyewitness. You’re almost at reasonable doubt right there.”

“Yesterday you said the physical evidence against O.J. was overwhelming!”

Terri’s right and I laugh. “To think like a lawyer, one must learn to argue either side with equal facility.”

* * *

Week Seven, Part 1 - Ethics: Juice on the Loose

2006-08-01T19:52:00.000-04:00

On Tuesday, Professor Rice dismisses Torts fifteen minutes early so we can watch the verdict in the O.J. Simpson case. After 133 days of televised courtroom testimony (and over 15 months since the murders of Nicole Brown Simpson and Ronald Goldman), the jury will speak.

On the elevator ride down to the student lounge, I overhear Professor Robert Blakey tell a colleague that a short period of deliberation – less than four hours – means O.J. will be acquitted.

No way! To me, the physical evidence is overwhelming.

The basement lounge is a zoo with 150 students crowded around a wall-mounted TV in the corner. I’m squished behind a student whose t-shirt reads, “At Notre Dame, every day is Saturday.”

Yeah, right.

All of us grow silent as the foreperson reads the verdict. "In the matter of the people of the State of California versus Orenthal James Simpson, case number BA097211. We the jury, in the above-entitled action, find the defendant, Orenthal James Simpson, not guilty of the crime of murder.”

I hear a few hand claps far away, but most students are silent. Some turn away, others shake their heads.

“Not guilty!?” I say to the 3L beside me.

He nods. “That’s an in-your-face verdict! They’re saying, ‘We’re outta here.’”

Professor Blakey was right, I think.

Later that afternoon, in a make-up session for Civpro, Professor Bauer starts class with “Now that the trial's over, some people are going to actually have a life.”

I assume he’s not referring to law students.

That’s all Bauer says on the subject, preferring to launch the issue of whether the International Shoe test of "fair play and substantive justice" applies to assertions of quasi in rem jurisdiction.

The last class of the day is Legal Ethics with Dean David Link. Finally -- a law prof willing to discuss the case!

“There were clearly some ethical questions in the Simpson trial,” he says in a deep voice. “Whatever you think about the outcome, the system broke down in a number of parts.”

His first criticism is toward the assistant DA’s from Los Angeles County. “The case was over-prosecuted. Marcia Clark and Chris Darden threw so much at the jury that it become mush. They should’ve had a simple theory and stuck to it.”

Judge Lance Ito gets roasted next. “I don't think he lost control. He never had control!” Link says judges are wise to worry about interfering too much with a criminal case. He tells a vignette about a judge who was never overturned. When asked his secret, the judge said, “It’s an eight-word philosophy I keep taped to the rail in front of me: ‘Keep your big mouth shut you little shit.’"

We laugh.

Link also disapproves of the Dream Team of criminal attorneys: Robert Shapiro, F. Lee Bailey, Johnnie Cochran, and Barry Scheck. “They over-defended the case,” Link says. “They tried to prove O.J. innocent, which was beyond their role.”

A student asks about the Cochran’s strategy in closing arguments of “playing the race card,” comparing Detective Mark Fuhrman to Adolph Hitler.

“Here, bringing race into the case was not unethical,” Link says. “Since the prosecution’s case was based on circumstantial evidence, the defense had to offer an alternate theory. They said the police framed O.J. To support that, they had to show some motivation – racism.”

Link pauses as if to collect his thoughts. “Now for a defense attorney to make a statement of ‘you can decide on race and ignore the evidence’ isn’t right. Johnnie Cochran – who I’ve met personally – became emotionally attached to the case it seems."

“What do you think about cameras in the courtroom?” a male student in the back corner asks.

“I’m not an advocate of cameras in courtroom,” Link says. “And I’ve testified before Congress on the subject. A case needs to be non-dramatic, perhaps simply videotaped.”

Class is almost over.

“And what’s the major issue to come out of this trial?” Link asks, using the Socratic method on himself. “Money makes a difference! I have a meeting with the president of the ABA about it this month. It seems you can buy your way out of trouble by paying for tremendous, legal talent. If so, there’s a systemic problem with justice.”

Link pauses. “Finally, remember, the trial was not about whether O.J. was guilty. It was whether the government proved it. Courts do not find people innocent.”

While Link closes his notes, a girl on the front row raises her hand. “Do you think O.J. did it?”

"I presume he was the most likely to have done it," Link says.

"That's a cop-out."

"No," replies Link, "that's a waffle. A cop-out would be, ‘I don't want to say.'"

* * *

Week Six, Part 6 - Singin’ the 1L Blues

2006-07-31T20:06:00.000-04:00

On Friday after supper, I drive Terri and the girls from South Bend to Michigan. The plan is to drop off Steph and Lauren for weekend visitation with their dad. Then Terri and I will continue on to Reading, Michigan, the one-stoplight town where my grandmother lives.

The trip does not begin well, a reflection of a stressful and sexless week.

I’m sullen. There’s only one place I should be tonight: my cube in the Kresge Law Library. Unless I get a handle on the substantive classes, I’m gonna flunk out. Torts is whizzing by me. Contracts could get ugly if I keep sloughing on my prep. In Crim, I’m lost when Professor Dutile compares the holdings in two or three different cases. CivPro has me feeling like an imbecile. During the last two weeks, I haven’t known the answer to any significant question from Professor Bauer.

Terri’s grumpy. She complains about work at AT&T. “My contact at Berkel is furious because an employee got an unauthorized calling card. So I rang up New Jersey and ripped on someone in corporate.”

Stephanie, age seven, has turned into the eggshell girl. She cries almost every night when Terri puts her to bed. "I didn't get to spend any time with youuuuuuuuu."

"Stop it," Terri will say. "We’ve been glued together since this afternoon. You walked around the block with me. We played Checkers and two games of Lion King."

"But I didn't get to read to youuuuuuu," Stephie sobs.

Only Lauren, age five, seems to be doing okay.

After an hour in the car, we stop at the Michigan border north of Angola, Indiana. Terri’s ex-husband is late as usual. More wasted time, I think. After twenty minutes he arrives and without apology loads up the girls.

Terri and I drive on in stony silence. I’m unhappy, she’s unhappy, we’re unhappy.

Life was easier ten months ago, I think. No wife. No kids. No mortgage. No case briefs. No Socratic method. No tuition bills.

Terri starts to cry. “This has been the worst week of my life, and tonight is par for the course." Her tears soften me. I reach out and put my hand on her shoulder.

She tells me more about work. Her biggest client, an infomercial company, is building a call center in Texas. It wants impossible assurances on price and performance. She adds that Stephie is being teased by the boys in AWANA for not finishing her Bible memory book from last year.

Then Terri listens as I sing the 1L blues. Too old. Too dumb. Too poor.

Like a mental health professional, Terri pats my knee, then she musses my hair. “You’ll do great,” she says. “Don’t get wigged out.”

By the time we get to Reading, Michigan, equilibrium has been restored. I feel stronger, more resolute.

My grandma, Lillian Frantz, meets us at the door of her five-room bungalow. Over a glass of homemade tomato juice, we talk about the weather and her garden.

She asks about law school and I mumble that “I’m learnin’ a lot.”

Grandma, who is a 1934 grad of Waldron High School in Michigan, says she had one year of law in 10th grade. After graduation, she wanted to be a secretary in a law firm, and a business college in Jackson offered her a scholarship. “They had it set up so I could live with a family and do a little bit of light housekeeping – but not enough to affect my homework.”

“Did you go?” Terri asks.

“My mother wouldn’t let me!” Grandma exclaims. “She’d always lived in the country. Baldwin. Hudson. Prattville, which isn’t even a town anymore. She didn’t think the city was any place for a country girl. That was her attitude and I had to abide it.”

Instead of college, Grandma worked four years in a factory, then married Arthur Hack.

“After your mom was born,” she says to me, “I took in washing and ironing. The nurse’s outfits were fun. You had to have them damp and your iron couldn’t be too hot or you’d scorch ‘em. I’d make dresses for 75 cents.”

Terri asks when she started doing hair.

“I was 43 when I went to beauty school,” she says, “the grandma of the class. One gal was 17, so at first I was pretty self-conscious. But I got through it all right.”

Wow! I never knew about Grandma’s interest in law or the details of her re-education. Terri catches my eye and I know she’s noticed the similarities.

I smile at Terri and think that, no matter how law school turns out, I’m glad we're in it together.

* * *

Week Six, Part 5 - Torts: Boobus Americanus Learns Negligence

2006-07-30T20:52:00.000-04:00

In Torts, Professor Rice finishes up the chapter on privileges and begins the next doctrine: negligence. In our casebook, this topic alone consumes over 500 of the 1,200 pages.

Rice jokes: “Though the subject matter cries out for a full and intelligent treatment, I’ll try to keep it simple for Boobus Americanus,”

He happens to be looking at me, though I’m sure it’s coincidental.

Rice turns to the whiteboard and writes:

DTY
BRCH
CSTN
DMGS

"These are the four elements of negligence," he explains. “Duty. Breach. Causation. Damages.” Rice combines them in a sentence. “You are negligent if you breach a duty, but you are liable only if the action causes damages.”

He points at DTY. “What is the standard of care? To act like a reasonable man. What would the reasonable guy do? What would he foresee? Would a reasonable man stop at the railroad crossing and look both ways? Yes. With negligence, what’s the test? Foreseeability. That differentiates it from Brian Dailey intent.”

Rice lowers his pen to CSTN. “Now, how do you prove causation? By a probability. Did Dr. Thumb's negligence cause this injury? You need an expert to come in and say ‘more likely than not.’” Rice then comments on the difference between questions of fact and law.

No doubt that after 25 years of teaching, Rice has a clear view of the issues. To me, though, it’s all gobblydegook. I’d much prefer an introduction that’s more systematic, less elliptical. An outline would be nice. With definitions, please. I feel like I’m being left to rot by the side of the road. Whatever happened to "keep it simple"?

Rice calls on a student, Chris Putt, to give the facts in Lubitz v. Wells. It’s an 1955 case from Connecticut. A man left his golf club lying in the backyard where his son (James Wells, Jr.) and nine-year-old Judith Lubitz were playing. The boy picked up the club and swung it without warning. Lubitz was injured and her family sued Mr. Wells for negligence. The trial court ruled against Lubitz. On appeal, the court upheld the ruling: “A person cannot be shouldered with responsibility for acts which portend no harm.”

Rice asks, “Mr. Putt, on what basis could the father be liable?”

My mind is blank and I'm glad I'm not the one on the hot seat.

“If he could have foreseen the danger,” Chris says.

“Good. In your opinion, could the defendant be liable for leaving out a power tool?”

“Yes.”

“A non-power saw?” Rice asks.

“Maybe.”

“A power lawnmower?”

“Probably not.”

“An enclosed backyard pool?”

“No.”

“Ever see a fence that kids couldn't get over?”

We laugh.

Rice buzzes through nine more cases. Blyth v. Birmingham Waterworks. Gulf Refining v. Williams. Chicago B. & Q.R. v. Krayenbuhl. Davison v. Snohomish County. United States v. Carroll Towing. Vaughan v. Menlove. Delair v. McAdoo. Trimarco v. Klein. Cordas v. Peerless Transportation. Whew!

Class ends with, “With these early cases, try to get a sense of a reasonable man. On the exam, just spot the issue and make a judgment about foreseeability.” Rice assigns us another fifty pages in the casebook, then strides out of the classroom.

Like reasonable law students everywhere, we whine ‘n moan to our classmates until we feel better.

* * *

Week Six, Part 4 - Law School Rankings

2006-07-29T20:06:00.000-04:00

During lunch I sit in the student lounge on the steps created by the recessed floor. Chowing down beside me are two classmates from Notre Dame Law School. It's the usual gab: where you from, what'd ya study, why ND.

Above us are the 100-plus pennants from the undergraduate institutions represented in the law school. The collection includes my alma mater, Pillsbury College, though I notice the blue felt is fading after only five weeks.

Andy Bojko ("boy-ko"), Dan Gag ("gog"), and I discover that we share more than weird surnames. All three of us grew up in Minnesota.

"Ya, sure, you betcha," I say.

Andy went to high school in Apple Valley, a Minneapolis suburb, and then to Princeton University. There he majored in philosophy. Dan's from Mankato, a city of 40,000, about a half hour north of the Iowa border. He graduated with a degree in business management and pre-law from Hamline University in St. Paul.

Neither one has heard of Pillsbury College, not even Dan who lived 40 miles away.

"There's advantages to a small school," Andy says. "Bet you got good grades."

I nod. "About a 3.8. How ‘bout you?"

He laughs. "Only two A's in four years. And those were gifts."

"Was it hard gettin’ into Princeton?

"Nah. Because of soccer I could pretty much choose where I wanted to go," he says in a matter-of-fact tone. He was captain of a state championship team at Apple Valley High School.

That's surprises me. Andy's short, maybe 5'9", and doesn't look particularly jock-like. With his brown hair and square features, he resembles Sean Astin, star of Rudy.

Andy says he visited Stanford, Duke, and UVA before choosing Princeton. "It seemed to fit me best." As for law school, he says, Notre Dame was the highest-ranked institution to accept him. "Now, though, I'm starting to worry."

Andy points to a black-and-white poster taped to the wall. The caption reads:

"CONCERNED? It's YOUR Future!"

A graph shows Notre Dame’s decline in the U.S. News rankings: 19th in 1990, 20th in ‘92, 26th in ‘94, 39th in ‘95.

"Join the SBA Ranking Committee.
Get involved – Agitate for Change!"

Dan says the fall-off last year was due to an administrative snafu in reporting the job placement of recent grads. We've all heard the same. Still, a rank of 39th is unacceptable.

Dan's about my height, stockier in build, with a wide face and glasses. I'm envious of his pre-law background. He says it was only beneficial for the first two weeks, but I don't believe him.

"Did you consider staying at Hamline for law school?"

"No way! It's ranked, like, 158th." Dan says some of his undergraduate classes were taught by profs from the law school. "That's another reason I didn't go there. They had this attitude of 'the law school's crap but I'm brilliant.'"

I ask Andy, "What about Princeton Law? Did you apply?"

He smirks. "No such institution.”

"Really? I thought all the Ivies had a law school.”

"Nope," says Andy.

"That's why the rankings are a joke," Dan says. "Add the non-existent ‘Princeton Law’ to any questionnaire about ‘reputation' and you've got a Top Ten school."

* * *

Week Six, Part 3 - Contracts: I Will Brief No More Forever

2006-07-28T22:55:00.000-04:00

What I don’t tell Professor Kaveny during our conversation is that, since she doesn't call on students at random, I’ve quit briefing cases in Contracts. On both Tuesday and Thursday I come to class “naked,” without any prep whatsoever. It’s like the first day all over again.

As we discuss the cases in Chapter 2, Part 4 (“Obligation Arising From Unjust Enrichment”), I jot down the facts and issues as best I can. Sure there are some gaps in my “analysis” of Marvin v. Marvin, a 1981 California appellate case, but I soon know the basics. When actor Lee Marvin of The Dirty Dozen fame dumped his live-in girlfriend, Michelle Triola (a/k/a Michelle Marvin), she sued for half of the 3.6 million dollars he had earned during their five-plus years together. Her celebrity lawyer, Marvin Mitchelson, argued an oral contract existed. In exchange for Marvin’s undying love and promise of financial support, Triola provided wife-like services.

The trial court, on remand, ordered Marvin to pay $104,00 to be used for Triola’s “economic rehabilitation.” Marvin appealed. The press called it a fight over “palimony.”

Kaveny asks, “What do we glean from this case, aside from the principle that you don’t change your name unless you’re married?” We laugh.

A girl in the third row raises her hand. “We learn that for Michelle, the last five years were a flaming waste of time.”

Kaveny smiles. She points out the main argument used by the appellate court to modify the trial court’s judgment in Marvin and “delete therefrom” the $104,00 in economic rehab. In short, there was no obligation for Marvin to pay Triola anything. A court “may not create totally new substantive rights under the guise of doing equity.”

Yeah! Good call. I want to cheer.

After class, I rationalize that my on-the-fly approach to Contracts is more efficient. Instead of flailing about in a mudslide of dicta, I’m getting precisely what Kaveny thinks is important.

Still, I’m embarrassed and feel like the greatest living slacker. Next semester, when I’m in a better routine, I’ll do it right.

There’s no doubt I’m falling behind. On Thursday I write in my journal: “need to catch up on my reading, redo my briefs, define key terms, especially the ones I don't understand, meet with Kaveny to make sure I have all the issues down, read Nutshell to get an overview of the topic.”

I’m worried, but not paranoid. In grad school I had plenty of classes where the first half of the semester was a wasteland, but then everything greened up.

And I can define "contract" by memory, thanks to my flashcards. “A promise or set of promises, the breach of which results in a remedy at law, and the performance of which the law recognizes somehow as a duty.” It's small comfort. A definition, no matter how solid, is just a start.

What I need is a Contracts outline, the organized notes of someone who took the class previously. I’ve seen them in Crim, Civpro, and Torts. Unfortunately, both Kaveny and the casebook, West’s Contract and Related Obligation, are new to Notre Dame.

I vow to keep looking.

* * *

Week Six, Part 2 - Konversation with Kaveny

2006-07-19T23:29:00.000-04:00

Walking across campus before class, I catch up with my Contracts teacher, Professor Cathleen Kaveny. She’s short and pale-skinned, blonde hair cut like an undergrad, parted down the middle and curled under at the shoulders. A silk scarf is knotted around her neck.

For most 1L’s, law profs have a mystical quality about them. Big brains. Degrees from fabled schools. Handsome salaries. Most importantly, the ability to determine our futures by the grades they give.

"Hi, Cathy," I say. Since coming to Notre Dame Law School, I haven’t heard any student address a prof by first name. But, I figure, we’re outside the class and she’s about my age. Kaveny graduated from Princeton in 1984, then went to Yale University for her Master of Arts (1986), Master of Philosophy (1990), J.D. (1990) and Ph.D. (1991).

“Hello.” She seems to recognize me from Contracts, but doesn’t know my name.

Good, I think. Don’t want her to start calling on me!

I ask Cathy how she likes teaching. Last year she was an associate in health care law at a big firm in Boston, Ropes & Gray.

“So far it’s been good,” Cathy says. “How ‘bout you? Has your first year been stressful?”

I want to gripe (“I’m too dumb and a bit old”). Instead I mumble, “Okay, aside from a certain early morning class.”

She laughs. Her steps are small, so I slow down.

I ask what other subjects she’s teaching.

“Nothing else,” Cathy says. “My load is one-one. Plus, of course, research and writing.”

“Of course.”

“I'm committed to three articles by the end of the year,” Cathy says. “They're breaking us in easy."

“Us” refers to the cadre of rookie profs: the brilliant William K. Kelley (B.A. from Marquette; J.D. from Harvard; clerk for Judge Kenneth Starr and Supreme Court Justices Warren Burger and Antonin Scalia), Pat Schiltz (B.A. from St. Scholastica, J.D. from Harvard, also a Scalia clerkship), Elizabeth Schiltz (B.A. from Yale; J.D. from Columbia).

I tell Cathy I used to be a teacher.

"So, do you want to teach law someday?"

I laugh. It’s like asking the Little Leaguer at the end of the bench whether he wants to pitch in the big leagues. I say, “Only the top students do that."

"Not necessarily. There are former Supreme Court clerks who can't find jobs. A lot of it is luck and timing."

We’re at the door of the law school. Cathy pulls it open for herself and heads in first.

“What’d you teach?” she asks.

“Freshman Comp and an elective or two.”

“Where at?”

“My alma mater, Pillsbury College in Minnesota.”

Cathy shakes her head as if she’s never heard of it.

I mention that the namesake was George Pillsbury, a Minnesota businessman and philanthropist in the 1800's.

Cathy tells me that a latter-day Pillsbury, Charlie, was "floating around Yale" when she was a student there. I must looked confused because she adds, "The Doonesbury character."

I shake my head.

"Charlie Pillsbury was Gary Trudeau's roommate at Yale, and that's who he based the comic strip on."

“Oh!” I finally see the connection: Doonesbury-Pillsbury.

"Yale,” I say, changing the subject. “That's impressive."

"I was lucky," Cathy says. She too changes the subject, asking if I miss teaching.

"Not like I thought."

Cathy says she misses “studenthood.”

"You'll have to teach for a while,” I say, “‘cause you're maxed out on degrees."

Cathy laughs. "There's always med school."

* * *

Week Six, Part 1 - Dream Team

2006-07-08T01:57:00.000-04:00

With its 100-plus days of televised courtroom testimony, the murder trial of O.J. Simpson dominates the media. Robert Shapiro. Johnnie Cochran. F. Lee Bailey. Barry Scheck. Alan Dershowitz. How many defense attorneys does one defendant need, I wonder.

To my surprise, however, there’s been no substantive analysis of the case in any of my classes at Notre Dame Law School.

In Criminal Procedure, the class where I would expect regular discussion of the “Trial of the Century,” Professor Dutile steers clear. The brief exception is when Simpson waives his right to testify. Dutile reads us Simpson’s statement to the court: “‘They [the jury] will find as the record stands now, that I did not, could not and would not have committed this crime.’”

Dutile wonders, “Hmm, what’s he really saying?”

Good point, I think. If the record were different, would O.J. admit to the crime?

In Contracts class, the day after both the Simpson prosecution and defense have rested their cases, Professor Kaveny takes the first 15 minutes to ask us a series of questions.

Do you think there’s enough evidence to convict O.J.?
Why wasn't there more blood around him?
Don’t you find it hard to believe that somebody could kill the mother of their children?
If you have fundamentally different views on police behavior, are you going to have a different level of plausibility?
Do you think the Simpson trial reflects somehow on lawyers?
If you knew Detective Fuhrman was racist, would you still put him on the stand? Is this an ethical issue as well as strategic one?

Our answers are prosaic, rehash of the talking heads we hear on the news. Kaveny suggests that people might view O.J. and the trial the same way they look at Elizabeth Taylor and marriage: "Oh, well, that's Hollywood."

She asks how many think Simpson will be found guilty. Half the students, about 25 of us, raise our hands. Only a handful vote not guilty. Kaveny predicts a hung jury.

Dean David Link has an article published in the Op-Ed section of the Chicago Tribune, titled “Law schools must lead legal profession back to its roots.” I read a photocopy of it at the 1L bulletin board.

Link begins, “Whatever the outcome of the O.J. Simpson murder trial, one thing seems certain: Contempt for lawyers – be they tailor-made defense attorneys or hard-charging prosecutors – will grow even greater.”

That may be true, though a bit overstated. Given the facts, it’s more likely that O.J. – not the Dream Team – will be viewed with contempt. And I admit, it’d be "kinda kewl" to take part in a trial so big.

* * *

Week Five, Part 7 - Crim: Plain View

2006-05-29T15:23:00.000-04:00

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

2006-05-25T23:41:00.000-04:00

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

2006-05-24T22:35:00.000-04:00

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

2006-05-18T00:53:00.000-04:00

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

2006-05-15T02:04:00.000-04:00

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

2006-05-11T22:16:00.000-04:00

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

2006-05-08T18:59:00.000-04:00

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

2006-05-07T10:23:00.000-04:00

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

2006-05-05T20:42:00.000-04:00

“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.

whether continuous and systematic contacts by the company,
whether benefits and privileges to the company,
whether willful affiliation by the company,
whether effects on the company,
whether qualitatively substantial contacts by the company,
whether quantitatively substantial contacts by the company,
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

2006-05-02T20:49:00.000-04:00

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

2006-05-01T20:16:00.000-04:00

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.

* * *

Week Four, Part 4 - Socratic Method, The Home Edition

2006-04-30T23:06:00.000-04:00

The absence of Professor Rice doesn’t mean I don’t think about Torts. The cases we would have covered deal with basic defenses to intentional torts such as battery, assault, and trespass.

At home during supper, I decide to test Stephanie and Lauren, ages 7 and 5.

"Here's a question for you,” I say. “Get it right and you can be a lawyer."

"Okay!" says Lauren.

"You know how when somebody does a bad thing, you can go to court and get money from them?"

They nod.

"Okay, tell me if you can get any money in this case." I clear my throat and wink at Terri. “A farmer in Iowa had an extra house on his land. It was old and no one lived there. In fact, to keep people away, the farmer locked the doors and boarded up the windows. He even posted a sign: ‘No Trespassing.’ But someone, the farmer didn’t know who, kept breaking in. This trespasser would smash bottles and leave cigarette butts on the floor. Finally the farmer got angry and decided to solve the problem forever.”

I take a bite of chicken cordon bleu. “Mmm, this is good. My cooking’s gettin’ better, if I don’t say so myself.”

“Mark!” says Stephie. She has stopped eating to listen.

“It’s the Dijon mustard that gives it some zip, don’t you think?”

“Mark!!” says Lauren.

“Oh, yeah. Where was I? The farmer decides he’s going to set a trap. He rigs the bedroom so if anyone opens the door, a shotgun will go off."

"Boom!" says Stephie.

“The trespasser comes back again. He doesn’t know about the trap and there’s no warning sign. When he pries open the door, you guessed it.”

“Boom!” says Lauren.

“The shotgun blows off a chunk of his knee and he's in the hospital forty days. When he finally gets out, one leg is shorter than the other. He limps to the courthouse and sues the farmer. Can our friend, Mr. Trespasser, get any money?"

Stephie says “no” right away. Lauren thinks for a while and says, “Yes.”

I press her. "Even though he was breaking into the house and vandalizing it?"

Lauren changes her vote to “no.” Terri agrees.

"Nope,” I say. None of you get to be lawyers. The farmer had to pay the trespasser $30,000.”

“What!?” Terri protests.

“That’s right. To quote Professor Rice, ‘You can't use deadly force to protect property, even if it’s the Hope Diamond.’”

Terri asks, “What about self-defense?”

“Doesn’t apply, “ I say. “The house was deserted." I lower my voice an octave. “In Iowa, it’s a point of law.”

* * *

Week Four, Part 3 - Contracts: Skeptics-To-Be

2006-04-29T21:19:00.000-04:00

On Tuesday morning there’s a crowd around the 1L message board. Professor Rice has been called to New York on a family emergency. No Torts class on Tuesday or Thursday.

“And Rice doesn’t do make-ups either!” someone says.

Most of us are giddy enough to jump up and down. We suddenly have an extra ten hours this week, figuring in both class and prep time. Any sympathy for the Rice family is not expressed.

Before we can enjoy our Tort-free morning, however, there’s Contracts class. In the last two weeks, Professor Kaveny has hit us with a string of doctrines: mutuality, equitable and promissory estoppel, justifiable reliance.

“Just plug the facts into the legal theories,” she says like a first grader could do it. “Play the cases off one another.”

Students down front nod, their pens poised. The rest of us stare sheeplike.

Kaveny picks up on our confusion and offers an aside. “You’re probably thinking, ‘What the heck is going on here?’ The casebook doesn't look like any text you've ever had. The workload is prodigious. You’re being asked to manipulate ideas you’ve had limited exposure to. It’s challenging, no doubt about it!”

I nod. She’s got that right.

“Well, first year is all about learning a language. Words like ‘restitution’ and ‘reliance’ can be used properly! Learn how different rules can bear on the same facts. As an attorney, you're going to have to cobble and cut your client's facts to fit these doctrines.”

We discuss the case Local 1330, United Steel Workers of America v. United States Steel Corp. “Here we have the sad situation of Youngstown Steel,” Kaveny says. “The court has thrown down a red flag. No recovery!”

Kaveny challenges us: “Within the framework of the law and the grammar of the contract, can you come up with a claim to allow the steelworkers to recover? Be creative. Push the envelope!”

Since Kaveny went to Yale Law School, I’m guessing this is the New Haven method. After two or three lame ideas from students, Kaveny offers one of her own, then shrugs. “Well, if we'd been really creative, we'd have gone to business school.”

There’s more New Haven speculating with Hoffman v. Red Owl Stores. It's a case where a businessman sold his bakery and moved to a new town as part of an agreement to open a grocery store. Red Owl then changed the terms of the deal, wanting more capital. Hoffman sued, arguing that he had "acted to his detriment in reasonable reliance on Red Owl's promises."

Kaveny asks, “If you were Hoffman's lawyer, what would you have done to protect him?”

“A letter of intent,” says one student.

“Binding arbitration,” says another.

A student suggests that Hoffman’s basic problem was that he wasn’t skeptical enough. “A good lawyer would have shown him what could happen if everything went wrong.”

“Good!” Kaveny comes out from behind the podium. “As a lawyer, sometimes you need to be a skeptic.” She pauses. “And God knows, at some point these next three years will turn you into one.”

* * *

Week Four, Part 2 - The LSAT

2006-04-29T16:48:00.000-04:00

I wish I’d had a master plan like Heath's. No, my decision to take the Law School Admissions Test was a simple response to “Whaddaya do with yourself once you move to South Bend?”

Bright idea. Leave behind the tax bracket for teachers and become a lawyer. Three years of perusing Supreme Court decisions and I’m a dynamo with monogrammed cuff links.

Notre Dame is famous for its law school, Terri tells me. And it's right up the street. National reputation. Great football. Meet big-time attorneys at alumni functions.

Right before my last Christmas in Minnesota, I sign up to take the LSAT. The $75 is a little present to myself. For Law Services to actually report my score to one of America's 180 or so law schools, it's another 75 bucks.

I need help studying. In early January, I prevail on my brother John to take the LSAT too. He’s not serious about law school, but thinks he can beat me on the test.

We each buy a Barron's study book for 15 dollars. Every night at the kitchen table we abuse our minds in timed practice exercises. We can get the right answers – it just takes too long.

The test has five parts: analytic, reading comprehension, writing, and two of logic. Analytic is the toughest. It's story problems created by psychos. "Thirty-five diplomats are sitting around a trapezoidal table. The 20 women speak Mandarin while two-thirds of the 15 men talk Gaelic. If there's a full moon, who sits across from Diplomat D?"

Three Pillsbury seniors – Mark Sherid, Dan Van Loh, Nathan Sproul – are also taking the exam, so we join forces. Every Friday the five of us get together and take an entire three-hour LSAT.

By late January, John and I agree on the need for expert counsel. We each shell out 299 smackers for Prepmaster, an intensive review held in a Minneapolis hotel. There with 30 other attorneys-to-be, we spend an entire weekend analyzing LSAT problems.

Our instructor is a Hamline Law School grad moonlighting from her job with the St. Paul Port Authority. She shows us the elusive art of solving analytic questions with diagrams. Unfortunately, I score worse on Sunday's practice test than the initial one on Friday. Not what the ad promised.

In early February, I order six practice exams ($42), even though I've concluded the LSAT is like an IQ test – you can't exceed your quotient. Will I have money for food this winter?

LSAT-day is February 12. We drive to Mankato State University. Big breakfast at Hardees – another five greenbacks toward The Cause. John and I make a gentleman’s agreement: whoever scores the highest gets treated to a steak dinner.

The test takes all morning. I chose to work through the multiple-choice questions at a careful pace. My perfectionism gets the best of me. Instead of simply marking the answer I think is correct, I read all the other answers and make sure each of them is incorrect. In every section I run out of time.

Sweaty palms, hand cramps, headaches, facial tics. I have all the stress symptoms ever recorded.

Law Services sends our results in late March. My raw score is 75 out of 101. That lands me in the 84th percentile. Not bad, not great. I'm happiest to have nipped ol' John. Hello, Golden Corral.

During spring break Terri and I meet with Anne Hamilton, director of the Admissions Office at Notre Dame Law School. She says the median percentile of those accepted is 83. It's a sign, I think.

I begin collecting letters of recommendation and start writing a personal statement. Hmmm. Need something noble and altruistic. Application fee: $45.

Owatonna lawyer Steve Smith tells me the most common reasons for attending law school are political aspirations, prestige, salary.

Not me. I apply because I spent so much time and money getting ready.

***

Week Four, Part 1 - Honest to a Fault

2006-04-24T20:49:00.000-04:00

Early on Monday morning, I drive up to Notre Dame Law School. In the passenger seat beside me are my laptop case and a sack lunch. Today I’m brown-baggin’ it as my Igloo, a red and white mini-cooler, has disappeared. Granted, the Igloo’s not chic, but I’m still peeved. The cooler has served me well for ten years.

Just south of the football stadium, I drive through an automatic gate into my assigned parking lot. It’s reserved for grad students, and most of the cars are from out of state. Since I’ve been a Hoosier for almost a year, my Toyota Corolla has an Indiana license plate. It’s awful – a garish sunset over a silhouetted barnyard. “Amber waves of grain” reads the slogan. I zip past a Ford Explorer and two Jeep Grand Cherokees. Further on is a GMC Jimmy with a “LWYR 2 B” vanity plate. Must be nice, I think. I park in the corner between the Mendoza College of Business and Senior Bar, the on-campus drinking establishment.

It’s about a half mile to the law school. I walk across the street and past Notre Dame stadium. For being hallowed ground to so many, the facility is unimposing, more like a brown-brick warehouse. There’s no landscaping around it. Not even grass. Just blacktop now being used for faculty parking.

At the law library, I look around for my Igloo cooler. No luck. I settle in and review my case briefs. Preparation-wise, Monday is bearable. There are only two classes and I’ve had all weekend to prep. My biggest worry is that I haven’t been called on yet. Socratic Stress Syndrome ("SSS"), they call it, and I’ve got a bad case.

I make small talk with Heath Weaver, a fellow 1L. He’s a little younger than I am, married, wearing a snazzy sweater vest. His claim to fame is that he actually grew up in South Bend. On top of his books is a LSAT study guide. I joke that Notre Dame is making him retake the entrance exam.

“No, no,” he says. “Once was enough.” He tells me that he teaching an LSAT review course for Kaplan.

I shiver. “Glad to have all that behind me.”

He laughs. “Why, what’d you get?”

I blink in surprise. How well one did on the LSAT is a personal question.

“About the 85th percentile,” I say, rounding up a smidge. Since it’s obvious he wants to tell me, I ask Heath his score.

He says, “94.”

“That great,” I say, trying to sound gracious. “What was your secret?”

Heath says he prepared for one entire year.

“A year!” I say. “Then you should’ve gotten at least a 96.”

Heath looks offended, so I slap him on the arm. “Just kiddin’.”

Lunch is quick as my new bag only holds half of what the Igloo did. Where did I leave it? Then, between bites of ham sandwich, I remember. Last Friday, as I was loading my car, I set it down on the sidewalk behind Senior Bar.

I hurry out the parking lot. Back under an elm tree, right where I parked on Friday, sits a red and white cooler. Sure enough, it’s mine, sour milk and all.

Wow! I can’t believe no one walked off with it. Either there are a lot of honest students at Notre Dame or none of them would be caught dead with an Igloo.

* * *

Week Three, Part 6 - CivPro: Sue All The Bastards

2006-04-24T01:23:00.000-04:00

By the end of the week, I’m exhausted. Every night I’ve stayed up late reading and writing. In sum, I’ve briefed 33 cases, compared to 24 last week and 9 the first.

I know I should start revising my class notes, by now a tangle of alien words and sentence fragments. First, though, I need to spend some time on the library assignment in Legal Research and my office memo.

Ironically, despite my efforts, it doesn't feel like I’m learning much. There’s little chance to reflect on what I’ve heard in class. Right now it’s all about survival of the fittest.

Of the substantive courses, Civil Procedure seems the most manageable. We’ve spent five classes on Pennoyer v. Neff, the case about the unpaid lawyer. “The law has not remained frozen,” Professor Bauer says, but we’re starting to wonder.

Bauer uses Pennoyer to review the traditional bases of personal jurisdiction: presence, citizenship, consent, agency. Then he introduces us to the concept of notice.

After we’ve squeezed every drop of goodness out of Pennoyer, Bauer announces that we’ll now work faster. He pauses. “On second thought, I can't imagine us going much slower.”

We spend the next class trying to figure out hypotheticals about personal jurisdiction. Each one is based on “A from Minnesota is suing B from North Dakota in a court in Minnesota.”

In the last hypo, Bauer manages a Pennoyer reprise. The question is, “In a suit for divorce, can A serve notice to B in North Dakota?”

“Yes,” Bauer says. To explain why, he has us turn back to Pennoyer. We read about a state’s "absolute right” to prescribe the conditions of the marriage relationship.

Bauer straightens up and thumps his fist on the podium. “It was good law back in 1877, and it’s good law now.” We laugh. If Bauer is Captain Ahab, then Pennoyer is Moby Dick.

On Friday we discuss Hess v. Pawloski, a case dealing with “implied consent” to personal jurisdiction. Bauer notes that Hess, decided in 1927, comes exactly 50 years after... Pennoyer v. Neff.

The facts are simple. Hess, a citizen of Pennsylvania, drove a car that struck and injured Pawloski, a Massachusetts resident. Pawlowski sued Hess in Massachusetts to recover damages for personal injuries and won at trial. Hess appealed. The U.S. Supreme Court upheld the Massachusetts statute giving the state court personal jurisdiction over non-residents who used its roads and were involved in auto accidents.

Bauer says that implied consent is “a legal fiction to permit the exercise of jurisdiction.”

At the end of class, Bauer tells a Hess-like story from his days at Hah-vard. “I went to law school in Cambridge,” he says. “While I was there, I had three accidents. And each time my car was stopped!”

We laugh. Bauer is emphatic and animated, the illogic of situations still at odds with his “procedural” world-view.

“Once I was at the bottom of a hill in a snowstorm. The second took place at a stoplight. And one was in alley where a truck backed into me!” Bauer rages against the bad drivers. “Fortunately, I managed to sue all the bastards and finance my education.”

On the way out, I bump into John Edgar. He shakes his head like he can’t take it any longer.

“What’s wrong?” I ask.

“That driving story. Even his anecdotes are on point!” John says. He turns his wheelchair at right angles to cut through the traffic.

I call after him. “But at least we’re done with Pennoyer v. Neff.”

* * *

Week Three, Part 5 - Legal Writing: Memo Re Underage Drinking

2006-04-21T20:13:00.000-04:00

I'm early to Legal Writing, a class which meets every Tuesday and Thursday. The professor is Teresa Phelps, who holds three degrees from Notre Dame (BA, MA, PhD). She's stylish, dressed in a silk jacket and long skirt, and looks to be about 50. Her blond hair is cut short over the ears and combed straight back in a style best described as “miniature Golden Dome.”

Last week on the first day of class, Phelps introduced herself. “I grew up in Philly and have three children, ages 30, 28, 26, and three grandchildren. And I’m probably the only person who’s been on both Jeopardy and American Bandstand.” She alluded to her son-in-law, baseball pitcher Jamie Moyer. “ERA has a whole different meaning in my discourse community than for him.” She neglected to mention her husband, ESPN commentator Digger Phelps. And she said nothing about her memoir, The Coach’s Wife, though it’s displayed front and center in a lighted bookcase outside the dean's office.

Today's topic is the "office memo," an analytical document mixing fact and law. Professor Phelps tells us we will write three of them during the semester.

“In a law firm, office memos are used to translate a client question into a legal one,” Phelps says. “They’re often written by associates to someone higher in the firm who will make a decision about how to handle the case.”

Using an overhead projector, Phelps shines a sample memo on the front screen. There’s an objective listing of facts, a paragraph stating the legal issue and answer, then a section of analysis.

Eureka! Facts-issue-holding-analysis. The pattern of an office memo echoes the case briefs we write for Torts, Crim, CivPro, and Contracts.

Phelps recites a series of hypothetical facts for us. “Teaching Assistant Mike Starzan invited his Legal Writing class over for a drink. They in turn told undergrads to come. Two hundred people showed up! Beer was sold at three dollars per cup. Nobody was checking ID’s. The law students discussed legal writing. After complaints by some neighbors, the police arrived and arrested 20 students for underage drinking. Mike Starzan comes to your office and asks two questions: ‘Am I personally liable?’ and ‘Is Notre Dame liable?’”

The class is silent. Phelps has draped the lawyer’s mantel on our shoulders. For the first time, a client wants our legal opinion.

Phelps points to a girl on the front row. “In this legal scenario, what’s your source of primary authority?”

“Some kind of liability law?”

“Good. An Indiana statute. Since this assignment is closed universe, I’ll give you a copy of the law. As you write your memo, be careful. There are ambiguities in the language.”

Phelps moves away from the lecture desk. “I operate on the assumption that all of you come to Notre Dame Law School with good writing skills. In no way is Legal Writing a remedial course.”

She's clever, I think, giving us both a compliment and a little warning.

Phelps adds, “'Office memo' is a deceptively simple title for a formal document. Writing it will be the hardest thing you do this semester.”

* * *

Week Three, Part 4 - Affirmative Action

2006-04-20T21:30:00.000-04:00

It’s probably a time-waster to attend clubs and societies at Notre Dame Law School, but I find it easy to justify since I’m usually hungry and there’s always free food.

The St. Athanasius Debate Society meets once a month during lunch. Today the topic is affirmative action in higher education. About 25 students, all dressed casually, bunch together on one side of a classroom.

I settle into the back corner with a Mountain Dew and two slices of pepperoni pizza. There are no plates or silverware, only napkins.

While I eat, I page through The Observer, looking to see if a prof from the anthropology department answered Pieder Beeli’s challenge. Nothing. Not even a James-and-the-Giant-Peach-like “Shut up, you little grub!”

The debate starts and I listen with interest. On each team there are two students, a 1L and 2L, following an informal agenda of opening statements and rebuttals.

A black female and white male argue in favor of affirmative action. The effects of institutional racism still exist, they say, and affirmative action is a social imperative to right past wrongs.

The anti-affirmative action side is composed of two white males, Ben Pugh and Ray Tittman. Pugh argues that the Constitution requires color blindness and that affirmative action poisons race relations.

Tittman, the final speaker, tells us about his personal experience with affirmative action. “A couple years ago, a friend wanted me to apply at Georgetown Law School. I said, ‘No, no,’ but he kept bugging me. Finally, just to humor him, I got an application. One of the questions required me to check a racial category. Although my family is white, they had lived in Africa for three generations, having emigrated from the Netherlands. I wondered if this qualified me as an African-American.

“To find out, I called the Equal Employment Opportunity Commission, and the EEOC said it did. So I checked the box. I still didn't think I had much of chance since my LSAT score was in the 91st percentile and my GPA was 3.4. The mean at Georgetown was something like the 94th and 3.6.

“As to the rest of the application, I scribbled out quick answers by hand. I didn't even bother to type ‘em. Then, in two weeks I got word back that I’d been accepted. And I started getting congratulatory phone calls from the Black Student Union!

“I decided I better set the record straight, so I wrote Georgetown and told them that I’m white, but also about my family and what the EEOC said. They wrote me back, revoking my admission. I got a lawyer and threatened to file suit. Georgetown made an accusation of fraud to the Law School Data Reporting Service. The press got involved and there were a bunch of stories. In the meantime, I got accepted at Notre Dame, which was my first choice all along.”

The black students in the back row with me don’t look happy. Dorphine Payne, one of the debaters, is standing nearby. Her arms are crossed and she says in a too-loud voice, “Can you believe this guy?”

Tittman ignores her and brushes the hair off his forehead. “On the Notre Dame application, the categories were White, Black, Asian, Hispanic, and I had checked the appropriate spot. The upshot of the whole incident was that I agreed to write a Georgetown a letter saying I no longer wanted to attend, and they agreed to drop the fraud charge.

“Aside from changing my view on the fairness of affirmative action," Tittman says, "the only lasting change is that the Georgetown application now says ‘Black’ instead of ‘African-American.’”

That’s the end of the debate, though Dorphine announces that she doesn’t see what Ray’s story “has to do with anything.” I laugh to myself because she sounds like a third grader.

Neither side has directly addressed the concerns of the other. And to my surprise, case law on the topic has been generally ignored. The only exception is a short discussion whether California Regents v. Bakke, a 1977 case, constitutes "good law." In Bakke, the Supreme Court ruled that an admissions policy at the UC Davis School of Medicine was unlawful. The program had set aside 16 out of 100 spots for minority applicants.

I grab another slice of pizza on my way out. In the abstract, I don’t have strong feelings about affirmative action. To my knowledge, I've never benefitted or been hurt by it. If my spot at Notre Dame Law School had gone to a less qualified applicant, however, I’m sure I’d be torqued.

* * *

Week Three, Part 3 - Torts: Stand & Deliver

2006-04-18T20:37:00.000-04:00

Professor Rice strides into Torts, his eyes darting over the class. He crosses himself and leads us in prayer. Then he tosses a stack of photocopies to the students on the front row.

As the handouts circulate, Rice says, “My method for taking attendance is ‘visual reconnaissance.’" He cups his hand at eyebrow level. “I look around and see if anyone's here.” We laugh.

Other profs at ND Law seem to agree. If you don’t come, tough. It’s your loss. Only one class, Legal Ethics, has a sign-in sheet.

Rice tells us there are three bases for tort liability: intent, negligence, and strict liability. We turn to Brown v. Kendall,” an 1850 case from Massachusetts. I’ve read it twice, but still don’t understand the legal aspects.

Rice scans the list of students. “Mr. Hickey.”

Mike Hickey raises a tentative hand. His face turns red and it now matches his hair.

“From now on, when you're called to a brief case, stand up!” Rice barks. “There are very few courts where you can lounge back. Part of the law school process is learning how to stand up and talk about a case.”

Yikes! Rice is taking Socratic pain to a new level. Hickey gets to his feet, shaky as a toddler.

“My job is not to harass you, but to argue against you,” Rice says. “This will help you someday in New York City municipal court.”

Hickey looks doubtful.

Rice asks, “Well, did you like it?”

“Like it?” Hickey rubs his hands on the front of his corduroys.

Rice pretends to be exasperated. “Yeah. Like. It?”

“What’s the antecedent of ‘it’?” Hickey asks.

Rice looks at the ceiling as if seeking divine help. “Where’d you go to school?”

“Georgetown.”

“Major?” Rice asks.

“Philosophy.”

“That explains everything!” Rice waits for the laughter to die down. “Did you like the holding?”

“Can I ask you another question?”

“You just did,” Rice says. More laughter.

“Are you asking if I thought the outcome was just?”

The bantering continues with all the laughs at Hickey’s expense. Rice backs up to review the facts. Defendant Kendall tried to stop two dogs from fighting by beating them with a stick. In the process, he injured the eye of Plaintiff Brown, who was standing nearby.

Professor Rice questions Hickey on the meaning of ordinary care, due care, extraordinary care. What if both the plaintiff and defendant are using ordinary care? Conversely, what if both are not using ordinary care? How about if the defendant is using ordinary care and the plaintiff is not? Rice twists the issues like he’s playing with a Rubik’s cube, then he thanks Mr. Hickey for an outstanding job.

I find the terms confusing and the legal points meaningless. It doesn’t help that Rice talks fast and mumbles at the end of his sentences.

Just get it down the best you can, I think. You can figure everything out later.

* * *

Week Three, Part 2 - What Might Have Been

2006-04-17T21:04:00.000-04:00

Before leaving for class on Wednesday, I get a phone call from Jaimy Gordon. She’s a creative writing teacher at Western Michigan University and author of several books, most notably She Drove Without Stopping. Jamie asks why I have yet to show up for class this fall.

I apologize and give her the bare-bone facts, explaining that I withdrew from the MFA program by letter.

She’s supportive and gracious. "Congratulations. Notre Dame has a great law school." Jamie mentions two profs that she knows.

We talk a little about writing and the creative process. She emphasizes the need for discipline and the publish-or-perish nature of higher ed. “Your novel portion was promising,” she says. “I hope you’ll finish it.”

“Maybe this summer,” I say. “Right now I’m drowning in case law. I started late and have no context.”

“Your background fascinates me,” she says. “The Armenian name and your time overseas. You were the brainiest person to apply.”

I laugh. “The last two weeks, I’ve felt anything but.”

"We expected scores like yours from someone at Harvard, not a little, religious school.”

“As they like to say at Pillsbury, not so long ago Harvard too was little and religious.”

She laughs. “Pillsbury, yeah. What denomination was that?”

“Baptist.”

“Which kind?”

“Independent.”

“And that’s where you taught too?”

“Yes.”

"Did you really believe it or were you just working there?"

“I’m a believer.”

There’s a long pause. “Well, if you decide you don't like law, I'm sure this program would continue to be an option.”

“I appreciate that.”

We hang up and I sit at my desk for a moment. Around me are signs of the writing life. Research files. Manuscript copies. John Gardner’s On Moral Fiction.

I get four boxes from the crawl space, and then I pack without stopping. Everything about my life as an English teacher and would-be novelist gets boxed up and stacked in the closet. There, I’ve cleared the deck. The only book on the near shelf is Black’s Law Dictionary.

I drive up to Notre Dame, a little slower than usual, thinking about what might have been.

* * *

Week Three, Part 1 - Crim: Exceptional Circumstances

2006-04-17T10:31:00.000-04:00

“Purple Funk” is the Monday headline in The Observer, and it pretty well describes the mood on campus after the upset by Northwestern University.

I see Kevin Patrick at lunch. “You were right about the ‘perennial Big Ten doormat’ being better than advertised.”

He dunks The Observer into a recycle bin. “Yeah, but I never thought we’d lose.”

Professor Dutile starts Criminal Procedure with, “‘The game's not important,’ I said to myself... with my head in the oven.”

He points out that of the 75 entries in Friday’s guess-the-score contest, only one person picked the Wildcats. Dutile calls out the name, Dan Overbey. Gentle boos rain down on the ex-cop from Florida.

“I played the percentages,” he protests. “Northwestern had a better chance of winning than me predicting the spread against this many people.”

Now why can’t I be smart like that, I think.

Dutile turns our attention to the case at hand. In Johnson v. United States, narcotic agents smelled opium coming from a hotel room. They knocked and Johnson opened the door. The agents arrested her and without a warrant searched the room, finding – surprise! – opium and smoking paraphernalia.

In 1948 the Supreme Court held that a warrantless search will only be upheld in cases of “exceptional circumstances,” such as where a suspect is fleeing or evidence is about to be destroyed. In Johnson’s situation, the officers should have first gone to a magistrate and obtained a search warrant. Conviction overturned.

Johnson is the first case that provokes me. I’m frustrated by the holding, and all my sympathies are with the men in blue.

Dutile’s take on the case is hard to read. His questions flesh out all angles of the debate. I like it when he asks, “Do you suppose the Court would have been so quick to reverse if Johnson had been charged with a triple homicide? If we're going to be consistent in our principles, the nature of the crime is irrelevant.”

That evening I tell Terri about Johnson while we walk around the block.

She asks, “And do you want your hotel room searched because a cop thinks he smells drugs?”

“Go right on ahead. I’ve nothing to hide.”

Terri looks at me like I’m channeling some third-world dictator. “I don’t want the police searching my house without a warrant!”

“Why not?”

“I remember how it felt when I got served my divorce papers. There’s a police car in the driveway. A deputy knocks on your door. I had piano students in the house. It’s embarrassing!”

“Hmm. But suppose the target wasn’t you, but Cliff next door. And rather than divorce, it’s a homicide. Can you still be consistent in your principles?”

Terri slips her arm around me and hooks her thumb in my belt loop. “It’s obvious you’re not getting enough sleep,” she says softly. “That’s the only principle I see.”

* * *

Week Two, Part 9 - Upset!

2006-04-15T16:57:00.000-04:00

The pre-game celebration for a football game at Notre Dame is an American festival. As if by magic, 100,000 fans appear, buzzing about the campus. Nerf balls and frisbees fill the air. Rows of marigolds bloom in immaculate beds.

Holding hands, Terri and I push through the crowds to the law school. We’ve missed the “Tailgater of the Century,” but there’s still plenty to do. I show Terri my classrooms (locked) and the library (deserted).

We walk upstairs to the third floor atrium. I point out my study cube. “This is where I read the paper.”

She stares at me, one eyebrow arched in suspicion.

In the student lounge, we mingle at a reception for the “Notre Dame Law School Community,” which appears to mean anyone willing to eat free weenies and chips.

I point out the Pillsbury College pennant now hanging from the ceiling. Terri is also a Pilly grad – captain of the Comet cheerleaders, in fact – and wants a closer look. We walk up, hands clasped behind our backs, and admire the white letters on blue felt. True to his word, the president of the Student Bar Association has hung the pennant beside one from Cornell University.

I scratch my chin. “Hmm. I forget. Which school is in the Ivy League?”

Notre Dame stadium holds about 60,000 people. The other fans are here to tailgate or just hang out. Terri has lived in South Bend for ten years and I’m surprised at how many people she knows. We bump into two of her co-workers from AT&T, Lisa and Emily. Both are ticketless but seem not to mind.

"Home games are great," Lisa says. "It’s the only day of the year you can roll out of bed and have a beer."

A half hour before game time we head into the stadium. Northwestern, wearing their hideous purple, is on the field warming up. The “Mildcats” are a 28-point underdog. Notre Dame is ranked in the AP's Top Ten, appropriate for the winningest college football team of all time.

Terri and I find our seats in the student section. We’re in the corner of the north end zone about 30 rows up. Most of the students are wearing “The Shirt.” It’s a blue pullover with a specially designed motif about Notre Dame football. Proceeds from its sale go to support student-run clubs and an emergency aid fund.

I tell Terri that I should be studying.

She gives me a pitiless look.

“I bet some of my classmates are.”

“We didn’t enroll at Notre Dame to sit at home on Saturday afternoons!”

“You’re right. One afternoon is nothing.”

I scan the crowd for classmates. The more I see, the better I feel. Kevin Patrick is two rows behind me. John Edgar is in the handicap section right below the press box. I don’t see Susan Wilson, but remember that she’s gone home to Kentucky. Every other weekend she drives six hours back to see her family.

Students crowd in around us and begin to chant, “Here we go Irish, here we go.” Clap. Clap. “Here we go Irish, here we go.” We stand on our bench and join in.

I pull out a small packet of CivPro flashcards from my pocket. The top one reads, “When you're confronted with a jurisdiction problem, what seven points do you consider, in order?”

I flip it over and read the list: “1 - subject matter jurisdiction; 2 - personal jurisdiction; 3 - notice and opportunity to be heard; 4 - service of process; 5 - venue; 6 - removal; 7 - waiver.”

Beautiful, I think. I can meditate on this card all game.

The Notre Dame marching band highsteps onto the field, then Coach Lou Holtz leads the Irish to the near sideline. I can’t believe how close we are to the players! When they butt helmets and slap pads, I can hear it.

The band begins to play "America the Beautiful." Our section is already standing. The rest of the crowd rises to its feet and begins to sing.

For us, though, the moment is interrupted as a male student staggers down our row. He’s reeks of alcohol and there are nacho cheese stains across the front of The Shirt.

“Gotta pee! I gotta pee!” he says, words heavy and slurred. Nearby students point and laugh.

Notre Dame kicks off and stops the Wildcats cold on three plays. After the punt, ND’s offense comes on the field.

"Watch us march it in for a touchdown," I say.

Oops! Notre Dame running back Randy Kinder fumbles. Northwestern scores several minutes later.

“It's okay,” I tell Terri. “The final score’s gonna read 48-17. Say you heard it here first.”

Kinder never sees action the rest of the half. He sits on the bench, towel over his head. Ah, yes. Public humiliation second only to the Socratic method.

The student section is still noisy. “We are” – clap, clap – “N.D.” Clap, clap. We do helicopter hand signals to accompany the kick off. But under the hot sun and dismal performance, we begin to wilt.

At halftime the Irish are down 10-9. I try to be confident. Terri asks why Coach Holtz keeps calling the same running play up the middle.

I rub Terri’s shoulders. She says she’s ready to go. Her back hurts and it’s a lousy game.

I convince her to wait until we see how the Irish do in the second half. That takes all of one drive. Notre Dame looks clueless.

As we walk out of the stadium, Northwestern scores again. Now the score is 17-9, Wildcats.

The crowd outside is subdued as well. We cut through the tailgaters to our car, about a mile away.

On the ride home, I listen to the game. Notre Dame scores, closing the gap to 17-15. Then they get the ball back.

Still time for a Joe Montana finish.

Instead, Northwestern stops the Irish on a 4th and 2.

Game over.

The radio announcer says, "Of late, the defining moments for Notre Dame have not been positive."

Just my luck, I think. My first game at Notre Dame and I witness one of the most stunning upsets in college football history!

* * *

Week Two, Part 8 - Crim: Search & Seizure

2006-04-14T17:57:00.000-04:00

Our first topic in Criminal Procedure is the Fourth Amendment prohibition against unreasonable search and seizure. Professor Dutile makes a few introductory remarks about the overriding issue of civil liberties versus the state’s duty to ferret out crime.

“It’s a balancing act,” he says, “and the real fighting is where the line should be. I don't care where you end up, only that you're more enlightened.”

Dutile picks up the class roster. “Let’s talk about Katz v. United States, the most important Fourth Amendment case ever decided.”

Uh-oh. Time for some Socratic method. Heads go down to avoid eye contact and students pull out neatly written briefs. My heart rate quickens and I try to find comfort in my hard-to-pronounce surname. Too bad it’s not three syllables longer.

“Ms. Wilson,” Dutile announces.

From the far corner, Susan Wilson raises her hand. Like me, she’s “non-trad,” meaning over thirty and married. Before law school she was in health care, first as a nurse then an administrator. I’ve talked with her several times. She’s pro-life and told me Notre Dame Law was her “dream school.”

Question by question Dutile teases out the facts of the case. The bookie. The illegal betting. The listening device on the phone booth.

We move on to the holding. In 1967, the Supreme Court ruled the government’s attachment of a listening device to the outside of a public telephone booth was an unreasonable search.

“Now before Katz, what was the test to determine whether there was a search?” Dutile asks.

“If the police or somebody came on the land,” Wilson says.

“Whether there was physical trespass. Good. The old language was ‘penetration into it.’ That would work up until the 1900's. I could go inside my house and talk to someone, confident that there would be no invasion. Now with electronic devices, all those bets are out the window, and the court is changing the test.” Dutile pauses. “Ms. Wilson, what’s the Katz rule based on?”

“An expectation of privacy.”

“What type of expectation?”

“A reasonable one.”

“Good. ‘Reasonable expectation of privacy’ has become the phrase for capturing what Katz is all about.”

“Ms. Wilson, suppose the person whom Katz had been talking to ran to the police. Is the evidence okay to use?”

“Yes.”

“Why?”

“Because there’s a known risk when you speak to someone. There’s no reasonable expectation of privacy.”

Dutile cranks up the “hypo-machine.” Suppose Katz has a loud voice and a police officer overhears? Suppose while Katz is on the phone, he has his ledger on a shelf and an officer sees it? Suppose Katz is speaking softly, but an officer has the unusual but not unique talent of reading lips? Suppose the police officer is a lip-reader who’s across the street with binoculars?

On and on we go. In every instance Dutile presses Susan as to whether the evidence is okay to use. Dutile doesn’t give us his take on the hypotheticals. It’s all Opinion By Wilson.

Dutile says, “Our role as lawyers is not to know the answers to the five million specific situations, but to be aware of the issues.”

The period is almost over. “One last thing about Katz. First impression is that the government lost. Actually they won, big! Why? Because the Court said electronic eavesdropping could be used Constitutionally.”

Before we leave, Dutile says we’re going to have a contest. He passes out squares of paper and tells us to guess the outcome of Saturday’s football game against Northwestern University.

I jot down “48-17, Irish” and turn it in, convinced of my own genius.

* * *