Wednesday, September 26, 2007

Pedestrian Law?

Last week, someone made a comment that the study of law is pedestrian. Certainly there are prosaic elements of law, but it seems to me that law is anything but pedestrian. Creativity, conviction and presentation are just three elements that seem to make a good lawyer, none of which I would classify as dull. In my mere fifteen months of legal training, I have come to appreciate the law as, on the whole, logical, intuitive and fair. But more than that, there is a certain flair that a good lawyer possesses. Whether it is forcing the typically non-mathematically inclined law student to assess negligence using the Hand formula, or showing us the incredible creativity and intensely human nature of transactional law, a good lawyer is not dull. In many ways, successful lawyering is like a chess game, and in many others, it is like a theatrical performance. So, yes, the law can seem pedestrian if you look at it under a microscope, but if you pull back to see the big picture, it is so much more. It is a grand endeavor; it is our fallible attempt to create an infallible system of right and wrong. It is the intricate balancing act of human relationships, freedom, duty, commitment and justice. It truly is a noble profession.

Monday, September 17, 2007

In Search of Schism: Law Review Comment Writers' Quest for Conflict

Lawyers are fixated on conflict. We wade through our lives singlemindedly focused on discord. Clients pay us to fight on their behalf. The fights are glorious, expensive and can last for years. Peace becomes a sorry substitute for unconditional victory over the vanquished. A partner once told me that achieving settlement between two combative parties is "like kissing your sister" --completely inferior and yucky.

Lawyers learn to love the fight in law school. Many of you are developing or evaluating the topic of your law review student comment. Many of you may find that something is missing from your topic idea. It should be no surprise that the key ingredient for a student law review comment is conflict. It will never be enough to describe or explain the law. You must expose and glorify the conflict and boldly predict and justify the victor.

Time worn advice for law student scholarly writers is to look for a "split" in the circuit courts of appeal. Two circuit courts disagree on a point of law and the fight is on. Lawyers are all over it. Alison Kilmartin, PSULaw class of 2009 sent me a link to Split Circuits, a blog that tracks federal circuit court of appeals splits. For her, the term used to connote either a gigantic slightly frozen confection or an absurd gymnastic maneuver. Once she became a law review member, however, the word took on a new connotation. "Split" now provokes the same thrill as the chant : "fight, fight, fight" once did shouted over a skirmish between twelve year olds in junior high.

Fights don't last. The Supreme Court may resolve the split before you finish your note. Your task is to find a split with sufficient relevance to be worth your effort in writing about it, but obscure enough so it will last just past the publication of your student note. I wonder what the world would be like if law review students and the whole legal profession could take the energy we devote to identifying conflict and praying it will last and focus instead on its counterpart -- searching and praying for peace.

Friday, September 14, 2007

Michelangelo Illuminates Copyright

One of my favorite quotations comes from Renaissance master, Michelangelo: “In every block of marble I see a statue as plain as though it stood before me, shaped and perfect in attitude and action. I have only to hew away the rough walls that imprison the lovely apparition to reveal to other eyes what mine have already seen.” Michelangelo, genius in many ways, may have intuitively understood the steps by which the law protects rights of authors.

My first true academic love was philosophy; I spent the better part of my undergraduate career contemplating the works of great thinkers over endless cups of espresso. Much to my surprise, I am currently re-discovering philosophy, metaphysics actually, in Copyright Law. While Metaphysics wasn’t a subject I thought I would employ in legal studies, its emergence in class this week was both exciting and refreshing.

The subject of copyright in the United States seems to be comprised of three distinct ontological entities: the idea of the work (somewhat akin to a Platonic form, in that it exists only intangibly, in the conceptual realm of the author), the first copy (our colloquial reference to an “original work” – for instance, David, the “original”), and the copyright (the protection which attaches at the point in time the work is fixed in a tangible medium). As a novice to the subject, and as one who learns by analogy, Michelangelo’s quote perfectly illustrates this somewhat nebulous idea to me. Michelangelo, as artist, conceives of the work. He sees in the block of marble the fully formed apparition before it ever is brought into a form that others can perceive and appreciate, his perception constitutes the work. As he “hews away the rough walls,” to reveal his work to the world, he is creating the first copy, while simultaneously (in this case) fixing his work in a medium. He has bound (fixed) the work in the marble, thus acquiring the protection of the copyright. (*Of course, there is much to be said of the fixation itself, particularly when thought of in light of Heidegger’s later work, “The Origin of the Work of Art.” However, I will refrain from earth, world and thingly character at the present moment!) While this may seem sophomoric to many, I am thrilled to see another link between my two academic loves.

Monday, September 10, 2007

Taking Time to Live

Autumn is in the air, and even though the thermometer still reads in the nineties, State College’s most beautiful season is on its way in. I love the fall; for me, it’s a time brimming with energy and anticipation. In State College, this feeling is amplified everywhere you turn. The Wegman’s Bakery is decorating cookies and cakes in blue and white frosting, our Nittany Lions are playing in Beaver Stadium again, and (my favorite) the trees are starting to change their colors. Soon it will be time to go to the pumpkin patch to find the perfect pumpkin for the season. State College has some great local farms, two of my favorites are: Way’s Fruit Farm and Harner Farms. Finding the time to enjoy the changing seasons is tough as a law student, but doable and necessary.

As a 2L, I feel a tiny bit less pressure than I did last year, but the shift in pressure is likely the shift from anxiety about work to volume of work. If I’ve learned anything in the past year, it’s that law school will consume as much of your life as you are willing to give it – and the pressure to give it all is intense. As any psychologist will tell you, though, you must develop good coping mechanisms to handle stress. Law school will always be stressful, but taking the time – albeit in small doses – to do those things you love to do, will make life in law school so much more fun. (Yes, fun!) So, go to a football game, stroll through Wegman’s, take the time to visit the pumpkin patch, and enjoy the beauty of this season.

Red Lion Reports Welcomes Kelly Bozanic

RLR welcomes Kelly Joy Bozanic. Kelly is a member of Penn State University Dickinson School of Law Class of 2009. She's traveled to and lived in many places but calls California her home state. Kelly adds contributing to RLR to her already diverse personal portfolio. She's a bon vivant and a former bunhead (meant in the nicest way from one of the same). She spent summer 2007 knee deep in the swamp where capitalism meets the dismal science.

Friday, September 7, 2007

Latin Undead

On Volokh Conspiracy, Eugene Volokh asks whether there are certain Latin phrases law students should know: "things like e.g., i.e., viz., prima facie, sui generis, inter alia, in camera, et al., and such -- common phrases that arise in many areas of the law, yet ones that many incoming law students may not know, and that they won't learn in any of their other classes." Jim Chen answers the question on MoneyLaw. As for me, well, I'd be grateful if lawyers' fixation on Latin phrases would finally die. My real purpose here is to tip you to these two highly readable blogs (I'm an occasional contributor on MoneyLaw). Check out Prof. Volokh's post. Last time I looked there were 161 comments.

A "Lawyer's Answer"

BNA Bankruptcy Law Daily reports an amazing exchange on Capitol Hill yesterday. The House Judiciary Committee Subcommittee on Commercial and Administrative Law conducted a hearing called "American Workers in Crisis: Does the Chapter 11 Bankruptcy Law Treat Workers Fairly?" Based on the hearing title, it should be no surprise that the witnesses, primarily labor union spokespersons, uniformly concluded that current bankruptcy law is unfair to labor unions. Only Michael L. Bernstein, a bankruptcy and workout specialist with Arnold & Porter, LLP spoke in support of the statutory treatment of collective bargaining and employee benefit contracts in chapter 11 reorganization cases under the Bankruptcy Code. Bernstein explained that Bankruptcy Code sections 1113 and 1114 balance the interest of employees in collective bargaining and employee benefit plans "against the need of a Chapter 11 debtor to achieve a cost structure that enables it to reorganize and emerge as a viable business that is able to compete in the marketplace."

Representative Melvin Watt (D. N.C.) asked Bernstein how a bankruptcy court can effectively toss out a collective bargaining agreement but cannot alter in any way the terms of a home mortgage obligation. Bernstein explained that the Bankruptcy Code permits the former but not the latter. Watt, a graduate of Yale Law School, retorted that Bernstein had given a "lawyers' answer" to his question. Watt acknowledged that he understood the law made distinctions, but demanded of Bernstein: "How in the world can you rationalize that?"

In fairness, Watt may have been absent on the day federal statutory law was covered at the Law School. His training in constitutional law, however, clearly made a lasting impression. Watt told Bernstein that he had taken Constitutional Law at Yale from Robert Bork and that some of what Bork said in class "sounded about as bizarre as what you just said."