lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

The Inspirational Story of New Supreme Court Clerk Isaac Lidsky

The story of new Supreme Court Clerk Isaac Lidsky is inspiring – also disconcerting, I might add, for his foray as a child actor – Weasel, aka Screech 2 on the inexplicably long-lived Saved by the Bell: The New Class (aren’t these people supposed to end up in rehab?) – but unrelentingly inspiring.

Isaac Lidsky has been an associate at Jones Day’s Washington, D.C. office for only three months, so he was unsure where to find the Erwin Griswold conference room, where our interview would take place. He asked for my elbow to guide him.

I had never been to the conference room either. But I can see. Isaac Lidsky is blind. As I followed signs, and Jones Day workers showed me the way with Lidsky at my side, the magnitude of what lies ahead for Lidsky became real.

Starting July 14, Lidsky will be making his way through the marble halls of the Supreme Court as a law clerk — the same maze-like hallways that famously confound new, sighted justices for the first months of their tenure.

A small number of clerks with disabilities have served the Court, but, before Lidsky, no blind person has taken on the reading-intensive job that entails digesting hundreds of petitions and writing memos and rough drafts of decisions.

I’m trying to reconcile my shriveled, cynical heart with the after-school-specialness of it all – the story is simply…. ugh… heartwarming.

Casewatching United States v. Geoffrey Fieger

Norm Pattis has been covering the Geoffrey Fieger trial in Detroit which, in closing argument, famed trail lawyer Gerry Spence has called his last. From the start to the farewell – well almost, the jury’s still out as of this writing – Pattis has given us a unique look at Spence, familiarizing the legendary. Spence, for the uninitiated is as famous as a trial lawyer gets – his representation of Randy Weaver is haunting. Of his many books, Win Your Case is worth a read if only for how different a trial lawyer can be from how you think he is. If there were awards for blog threads, this would top my nominations.

Anonymity and its Discontents – Anonymists and Eponymists

Why do we blog? Reading Emily Gould’s Exposed and David Lat’s new Project Truman spurred some thoughts this weekend that have been long accumulating on the nature of blogging. I’ll tiptoe around the more obvious freudian explanations for the urge to blog to note that there are two distinct camps of bloggers with very different instincts and motivations in the medium – I’ll call them the Anonymists and the Eponymists.

Eponymists

I am an eponymist. Woefully unable to think of a clever turn of phrase or decent latin maxim for my website, it is self-titled or eponymous and since my URL is my name I, unsurprisingly, blog as myself. I don’t fictionalize or disguise my identity and I choose to speak as and for myself. Consequently, I take responsibility for what I say and therefore try not to say anything on the blog that I wouldn’t say to someone’s face. Though occasionally sarcastic and intentionally provocative I choose to trust in an intelligent and sophisticated readership that can tell the difference between argument and invective. Raised in a rural backwater where everyone knew everyone else’s business anyway this seemed the most natural thing in the world to me, utterly prosaic and sensible. Many people I know are simply horrified by it. A number of my law school classmates have openly surmised about its potential to undermine my career as if it were only a matter of time. While I could certainly see situations in which blogging would be inappropriate or might cause a potential employer to look elsewhere I am simply undeterred. Anyone who would make their living by words should learn to live by them.

Anonymists

On the other end of the spectrum are Anonymists – who are anonymists because they seek to mask their identities in some way. Most simply don’t reveal their names, using a pseudonym of some sort and taking pains not to reveal any identifiable information such as the city they live in or school attended. Some go so far as to take on an alternate persona, a woman writing as a man, or to openly fictionalize (or claim to) the contents of the blog so as to dislaim any responsibility.

I would argue that the anonymists far outnumber the eponymists in the blogosphere, mostly because the internet makes it possible. There are lots of good reasons to blog anonymously. It enables you to say things that need to be said without the fear of reprisal and it often engenders the kind of frank and open conversation that isn’t entirely common even among close friends. But for that anonymity, the risk of exposure would limit the value of otherwise valuable information. This is of course the same logic that prompts whistle-blower protections.

I raise the distinction merely to say we should recognize and respect which camp we fall into. Some bloggers obviously need to figure out which one they are up front – hint, it’s a one way ratchet – there’s no such thing as anonymizing yourself ex post facto on the internet. On the other hand revealing a previously anonymous identity can be tantalizing and even lucrative (see the anonymous lawyer’s book deal). Having it done for you, on the other hand, is painful and sometimes expensive (see the cautionary tale of Dr. Flea). By our choice we may be at times foregoing rewards or avoiding some risks. Less obvious are the issues of interacting with other people in our lives – I initially thought my girlfriend would appreciate an occasional shout out on the blog – that hasty decision was summarily reversed and remanded. That was a fairly minor incident and easy to remedy but others are less so. In the next few weeks I’ll be building on this idea to see where it takes me.

Learning to Think Like a Chicken Sexer

The Situationist brings us a commencement-time gift of Law, Chicken Sexing, Torture Memo, and Situation Sense, a 2006 commencement speech by Yale Law Prof Dan Kahan who congratulates the gaggle of fresh-faced law grads by comparing the skills just acquired during their 3-year, $193,200 education to the dark art of chick-sexing:

What in the world does this have to do with law, you are asking yourself of a professor’s lecture, once again. Well, what I want to suggest is that what’s going on in the chick-sexing profession is the very same thing that goes on in the legal profession. The formal doctrines and rules that make up the law – unconscionability, proximate causation, character propensity, unreasonable restraints of trade – are just as fuzzy and indeterminate as the genetalia of dayold chicks. And yet just as the trained chick sexer can accurately distinguish female from male, so the trained lawyer can accurately distinguish good decision from bad, persuasive argument from weak. Ask the lawyer for an explanation, and in his case too you’ll get nothing but confabulation – “plain meaning,” “congressional intent,” “efficiency” – or what have you.

In addition, the lawyer attains her skill – to recognize what she can’t cogently explain – in much the same way that the chick sexer does: through exposure to a professional slideshow, this one conducted by law grandmasters, including law professors but also other socialized lawyers, who authoritatively certify what count as good and bad decisions, sound and unsound arguments, thereby inculcating in students and young practitioners the power of intuitive perception distinctive of the legal craft.

I’ve had a few Yale-grads as profs so far and this begins to explain why they can be so infernally nebulous. I wonder have the chicks developed a ‘situation sense’ as they squirm under the eye of the chicken sexer? Would the chick be content with the chicken sexer’s ability to “recognize what [he or she] can’t cogently explain” or would they desire something more? a cogent explanation perhaps…

I watched in awe and admiration as many of my friends graduated this spring. Many already have jobs and clerkships lined up (with, of course, that little matter of the bar to take care of first) but as many still will be out there hustling, hanging out a shingle or catching on with a smaller firm. There are far fewer Yalies in this boat I suspect, but it is the reality for the majority of the bar. These new lawyers will, for better or worse, hit the ground running and they expect law school (faintly perhaps) to have prepared them for that, apologies for pedagogical methods notwithstanding.

These new lawyers will go out and represent clients, real people with real problems, who need not only someone who can recognize the situation but is prepared to do something about it. Clearly Kahan has not put this out of his mind entirely when he describes the “ability to arouse the situation sense of other lawyers, including judges” – though it’s not clear to me where the distinctive pedagogy for this particular skill lies, however. I’m doubt most law schools know either.

There are practical ‘skills’ classes and advocacy programs – moot court and mock trial and assorted clinics at most law schools but these are clearly outside the peculiar pedagogy most schools see as their fundamental value proposition. It’s a convenient if not entirely realistic trope that this learning to think like a lawyer business is all we should really expect from law school. This problem is not unique to Yale, they can afford to do less about it. I feel like the quality of legal education I’ve received has been very, very good, but when I hear words like Kahan’s, the implicit value system it imparts, I wonder what it could be.

Baylor 2Ls win World Hog Wrestling Championship

Sic ‘em indeed.

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