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Topics - Private David Lewis

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General Off-Topic Board / Slumdog Millionaire
« on: February 22, 2009, 06:31:34 PM »
Will it win Best Picture?  Surely not. 

General Off-Topic Board / The Sopranos
« on: January 07, 2009, 05:22:34 PM »
Anyone want to talk about Sopranos?  I'm watching 5th season again now.  I think it fell off a little from the 4th, and the 4th fell off from the 3rd. 

General Off-Topic Board / SF--Golden Gate suicide net?
« on: October 10, 2008, 04:16:18 PM »


For some reason this really bothers me. 

Back at home for the holidays. 

Let me know if you have any questions about anything, or if you would like to entertain me.  I used to post a lot as "Hank Rearden," but I don't post that much anymore.   :)

General Off-Topic Board / Best Music of 2007?
« on: December 19, 2007, 08:13:27 PM »
My favorite albums have prolly been by Spoon (GA^5), The National (Boxer), and Radiohead (In Rainbows.

Favorite songs: perhaps, Suffer For Fashion by Of Montreal, All My Friends by LCD Soundsystem, and Bros by Panda Bear. 

Anyone else have thoughts?

Studying for the LSAT / To: final_id
« on: September 22, 2007, 10:00:20 AM »
I've posted this before, but I think you could use some help:

When problems overwhelm us and sadness smothers us, where do we find the will and the courage to continue? Well the answer may come in the caring voice of a friend, a chance encounter with a book, or from a personal faith.

For Janet help came from her faith, but it also from a squirrel. Shortly after her divorce, Janet lost her father, then she lost her job.

She had mounting money problems. But Janet not only survived; she worked her way out of despondency and now she says, life is good again. How could this happen? She told me that late one autumn day when she was at her lowest she watched a squirrel storing up nuts for the winter, one at a time he would take them to the nest. And she thought, if that squirrel can take care of himself with the harsh winter coming along, then so can I. Once I ripped my problems into small pieces I was able to carry them, just like those acorns, one at a time.

General Off-Topic Board / Michael Dorf: elitist?
« on: September 17, 2007, 11:37:53 AM »
When I last saw Erwin Chemerinsky I asked him why he wanted to be the dean of a new law school. He was enthusiastic in response, talking about the opportunity to place his stamp on legal education as the founding dean of the UC Irvine Law School. I was skeptical and remain so. Chemerinsky has enormous talent and energy but I sincerely doubt that anyone could change legal education significantly without buy-in from the faculty of an already top law school.

Even solid but middling-ranked law schools can have at best a marginal impact on the course of legal education as a whole because no matter what they do to improve the actual outcomes for their students, they won't attract the very best students---and I doubt that, on average, an excellent innovative education for a mediocre student will produce better lawyers than a pretty good traditional education for excellent students. This explains why Yale Law grads---many of whom learn virtually no law at all while in law school---prove to be excellent lawyers; they have the credentials coming in.

Thus, to have an impact on legal education as a whole (as opposed to in one's own school only), the founding dean of a new school must first create an excellent school, and that's not easy to do. Perhaps a top-flight university without a law school (Princeton is the obvious example) could create a new law school that would instantly be top-ranked. But to create an excellent law school at UC Irvine---or even one that would compete for students with Boalt, UCLA, Hastings, and UC Davis---requires, at a minimum, tons of money. A prospective student faced with a choice between UCLA and UC Irvine will undoubtedly choose UCLA unless lured to Irvine by the promise of reduced tuition, free room and board, etc. Thus to boost the numerical qualifications of students, and thus US News rankings, Irvine would need to "buy" students for a number of years until the trend became self-sustaining.

The same goes for faculty. Top faculty are not going to relocate to an unknown entity without the promise of something. A lot of money might be enough for some, but for others there will be other requirements, including such things as light teaching loads or the promise of the ability to teach courses they've taught in the past. The latter sort of promise would then work against curricular innovation.

I don't know exactly how much money it would take to establish UC Irvine as a top-flight law school, and thus one that could be a leader in legal education more broadly, but I suspect the university doesn't have enough. I also have real doubts about whether the strategy I have outlined would be the best use for a giant barrel of money in the UC system. In any event, we're especially unlikely to see progress on this front with Chemerinsky out of the picture. The adverse publicity from this episode will make it that much harder for UC Irvine to establish itself as a good law school, much less a national leader.


I'll agree with you that law school grads from such illustrious institutions as Yale (and possibly your own) learn very little law while in law school but I have to disagree with you that they make the best lawyers. What is your evidence for this?

I also disagree with you that "mediocre" schools don't attract the best students. What do you mean by mediocre anyway? People select a law school to attend for a lot of different reasons (assuming they are offered admission), cost and location being two main considerations, not just how exclusive the school represents itself to be.

Presumably you are not really this arrogant and elitist?

Response from Dorf:

In response to Sally, I'll just say that, yes, I am this arrogant and elitist if what you mean by that is that I believe that, on average, students selected for admission to the most selective schools turn out to be better lawyers than those from less selective schools. This does NOT mean that the less selective schools (which I'll use synonymously with "mediocre") produce no excellent lawyers or accept no excellent students. When I taught at Rutgers-Camden for three years I had a good number of terrific students who were every bit the equal of my Harvard classmates and my Columbia students. Some came to Rutgers for the lower tuition, others because they were tied to the area (although that alone is not a sufficient explanation for choosing Rutgers over Penn), and still others were simply very bright people who either under-performed on standardized tests or had not worked all that hard as undergrads. But the bottom line is a claim about the average student and there is no question that the "ability curve" is shifted to the right at the elite schools. That's my observation from having taught hundreds of students at Rutgers and thousands at Columbia.

Now, one can still say that success on law school exams and seminar papers doesn't foreordain success in the world of practice, and that there are even some lawyering skills, such as negotiating, that students at less elite schools are likely to have in greater abundance (because of some claim about "street smarts.") But, to reaffirm my arrogance and elitism, I stand by the claim that the single most important desideratum of good lawyering is analytical ability. (A good work ethic is surely important too.) When admissions offices at elite schools do their job well, they detect that ability in students who may have lacked various advantages, so this is NOT a claim about how analytical ability correlates with prior life experience, background, etc.

Finally, even if I'm wrong about what, on average, produces good lawyers, I feel especially confident that the legal profession is, as a matter of observed social fact, quite prestige-conscious, so that innovations not adopted by prestigious institutions will not likely catch on.

General Off-Topic Board / Lawyers and judges are too self-indulgent?
« on: August 27, 2007, 07:24:54 AM »
With the Bench Cozied Up to the Bar, the Lawyers Can’t Lose

Published: August 27, 2007

Dennis G. Jacobs, the chief judge of the federal appeals court in New York, is a candid man, and in a speech last year he admitted that he and his colleagues had “a serious and secret bias.” Perhaps unthinkingly but quite consistently, he said, judges can be counted on to rule in favor of anything that protects and empowers lawyers.
Skip to next paragraph
Harry Campbell

"The Secret Life of Judges" by Dennis G. Jacobs (Fordham Law Review, May 2007)
"Do Judges Systematically Favor the Interests of the Legal Profession?" by Benjamin H. Barton (Alabama Law Review, forthcoming)

Once you start thinking about it, the examples are everywhere. The lawyer-client privilege is more closely guarded than any other. It is easier to sue for medical malpractice than for legal malpractice. People who try to make a living helping people fill out straightforward forms are punished for the unauthorized practice of law.

But Judge Jacobs’s main point is a deeper one. Judges favor complexity and legalism over efficient solutions, and they have no appreciation for what economists call transaction costs. They are aided in this by lawyers who bill by the hour and like nothing more than tasks that take a lot of time and cost their clients a lot of money.

And there is, of course, the pleasure of power, particularly in cases involving the great issues of the day.

“Judges love these kinds of cases,” said Judge Jacobs, whose speech was published in The Fordham Law Review in May. “Public interest cases afford a judge more sway over public policy, enhance the judicial role, make judges more conspicuous and keep the law clerks happy.”

There are costs here, too, he said, including “the displacement of legislative and executive power” and “the subordination of other disciplines and professions.”

Yet, at the conclusion of a big public-policy case, the bar and bench rejoice. “We smugly congratulate ourselves,” Judge Jacobs said, “on expanding what we are pleased to call the rule of law.”

Benjamin H. Barton, a law professor at the University of Tennessee, examined some of the same issues in an article to be published next year in The Alabama Law Review titled “Do Judges Systematically Favor the Interests of the Legal Profession?”

That question mark notwithstanding, there is little doubt about where Professor Barton comes out.

He noted, for instance, that the legal profession is the only one that is completely self-regulated. “As a general rule,” Professor Barton wrote, “foxes make poor custodians of henhouses.”

Professor Barton explored a long list of examples, including the aftermath of the Supreme Court’s 1966 decision in Miranda v. Arizona. Miranda, as everyone with a television set knows, protected the right to remain silent and the right to a lawyer.

Over the years, though, courts have approved all sorts of police strategies that have eroded the right to remain silent. At the same time, Professor Barton wrote, the courts “chose to retain quite robust protections for accused who clearly expressed a desire for a lawyer.”

“The advantages to the legal profession are clear,” he added. “Whatever else an accused should know, she should know to request a lawyer first and foremost.”

And the cases keep coming.

This month, a New Jersey appeals court basically immunized lawyers from malicious prosecution suits in civil cases. Even lawyers who know their clients are pushing baseless claims solely to harass the other side are in the clear, the court said, unless the lawyers themselves have an improper motive.

Lester Brickman, who teaches legal ethics at Cardozo Law School, said the decision was just one instance of a broad phenomenon.

“The New Jersey courts have determined to protect the legal profession in a way that no other professions enjoy,” Professor Brickman said. “It’s regulation by lawyers for lawyers.”

Other professions look for elegant solutions. It is the rare engineer, software designer or plumber who chooses an elaborate fix when a simple one will do. The legal system, by contrast, insists on years of discovery, motion practice, hearings, trials and appeals that culminate in obscure rulings providing no guidance to the next litigant.

Last month, Judge Jacobs put his views into practice, dissenting from a decision in a tangled lawsuit about something a college newspaper published in 1997. The judges in the majority said important First Amendment principles were at stake, though they acknowledged that the case involved, at most, trivial sums of money.

Judge Jacobs’s dissent started with an unusual and not especially collegial disclaimer. He said he would not engage the arguments in the majority decision because “I have not read it.”

He was, he said, incredulous that “after years of litigation over $2, the majority will impose on a busy judge to conduct a trial on this silly thing, and require a panel of jurors to set aside their more important duties of family and business in order to decide it.”

Writing with the kind of verve and sense of proportion entirely absent in most legal work, Judge Jacobs concluded that “this is not a case that should occupy the mind of a person who has anything consequential to do.”

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