Trick or Treaty

Today the Senate is considering the United Nations Convention on the Law of the Sea, also known as LOST (Law of the Seas Treaty) and UNCLOS. The effect of LOST is to grant signatories the governance rights of the 200 nautical mile “economic zone” from a shoreline. For the United States, this would give exclusive claims to a large amount of oceanic “territory,” which could mean an enhanced ability to extract vital resources from the sea. This exclusive grant of rights is something few nations in history have attempted to attain. But, with most things that seem too good to be true, there is a catch. If the Senate ratifies LOST (as both the Clinton and now Bush administration have urged), the United Nations will be vested with the authority to regulate the whole of international waters; including sovereignty over any territorial waters claimed by a signatory state. See Article II § 3. By granting the U.N. this power, is America subjecting itself to a restriction of the basic principles of capitalism - the free-market? For an informative article about some of these issues, see WebMemo by Carrie Donovan of the Heritage Foundation.

Lawyers in Love

Apropos of Kelly's Metamorphosis, picture two lawyers, husband and wife, in a car. Husband drives while wife navigates. At a critical juncture, wife fumbles a direction. The couple end up lost in an area of D.C. where lawyers with good reason hardly ever go.

Husband vents considerable frustration at their predicament, implicitly blaming wife. She asks: "Could you possibly be any angrier if I had gotten us lost deliberately instead of merely by negligence?"

Now picture the two smiling at each other, knowing theirs is a charmed life where their strange ways are always mutually understood.

From Jackson Browne's Lawyers in Love (Asylum Records 1983):

I can't keep up with what's been going down
I think my heart must just be slowing down
Among the human beings in their designer jeans
Am I the only one who hears the screams
And the strangled cries of lawyers in love



To hear Lawyers in Love, press play.

The Metamorphosis

How do I make it stop? Case after case, element upon element, increasingly, legal analysis is taking over my ability to calmly interact with the world. I am less tolerant of inconsistencies, I become aggravated when I see inequities, I even pick-apart situation comedies and explain to my (very annoyed) husband why this or that is inaccurate. Even inefficiencies in everyday speech frustrate me (get to the point, mom). Learning to operate within a systematic analytical framework is comfortable because it is structured and principled, but life does not always follow suit. Before I end up like Gregor Samsa, I must learn what it means to be possessed of a legal mind and not wreak havoc on my community, while being mindful not to neglect the growth and development essential to my studies.

The “problem” stems from the methods we employ to learn the law. Though the methodology itself is not the problem, it provides the fuel. Learning the law is like learning a language = immersion is best. To compound this, the law is pervasive, it touches upon nearly every area of society. To become a more proficient legal thinker, we must take the law out of the casebook and apply it to everyday situations. The result seems inevitable, an inability to remove this legal framework from otherwise normal interactions with the greater lay community. I realized this metamorphosis of the mind happened to me when I began pointing out the inequities of bike-laws and analyzing television. Despite my awareness of this transformation, I still sometimes make the mistake of launching into an oration worthy of a court room with my husband over why he should recognize the merits of efficient refrigerator organization.

I have no anecdotes, no quick-fix, but I do believe this is a necessary part of legal development. By entering this profession, we are changed. We have necessarily become something other than what we were before. We are re-training our analytical thought process to adopt a framework for legal analysis, this training is imprinting on our perception of the world in such a way that it will be impossible to go back to how we were before. It now becomes our responsibility to learn how (and when) to utilize these new skills. My observations have lead me to three conclusions: first, I may never be able to watch a television show again without noting the fallacy of a will provision still taking effect despite modification by circumstance in a state that follows the UPC, but I can learn to keep that fascinating thought to myself. Second, because this profession is based on communication, I must seek out opportunities to engage in legal discourse or it will be harder to keep the former thought to myself. Finally, I must pray that those unfortunate enough to be in proximity during my rehearsals for the grand jury have super-human patience!

Be Hard On Us (but patient) We Need You

I keep reading about the disengagement of students, the lack of classroom participation, the general apathy, etc. Perhaps it's a poor analogy, but I tend to view students as children and professors as parents. Students are trained in law by their professors, just as children are trained in life by their parents. As any good parent knows (full disclosure here, I am not yet a parent) children generally respond to the boundaries and expectations set by their parents. While there may be moments of rebellion, overall when expectations are communicated and there is follow-through children often impress their parents by meeting and sometimes exceeding those expectations.

The same goes for professors in the classroom. Professors set the tone. My first year of law school I had a very parental (i.e. authoritative) professor who set boundaries and communicated clear expectations for classroom discussion. The professor then followed through. When students did not meet those expectations we all knew it and felt the shame, the good kind of shame. We had a healthy fear that inspired us to rise and meet the level of expectation. We also felt a collective sense of pride and relief when we performed to our professor's satisfaction. We strove to make our professor proud and were infinitely rewarded on the occasions we achieved that goal. My first year of law school I also had a "buddy" professor who did not set clear boundaries and allowed students to behave in a casual and jocular manner. I think the goal was collegiality, but the result was near-chaos. We, the same students who sat on the edge of our seats in a "yes, sir" sort of way in the other class, loafed in this class. We rarely performed at full capacity. What was the difference? The tone set by our professors. One professor was not afraid to show authority, but also had the patience to work with what we had to offer and used the Socratic method to pull our best out of us. The other professor was less authoritative and met with students who didn't know where the boundaries were or how to show respect. The result was frustration for all parties involved.

While I hear/read grumbling about student performance and engagement, I also know that professors have a powerful influence on students and their participation. The more professors expect of us and demand that we produce accordingly, the more students rise to the level of expectation and on the occasional, lucky day, exceed those expectations. Be hard on us, but be patient with us, we need you.

Remember the Majesty

The general disengagement experienced by many students is likely reflective of generational trends; specifically, I believe it is the result of a lack of appreciation for the relevance of law school to the practice of law. Law school, unlike medical school, produces generalists. As a result, newly minted J.D.’s have tremendous flexibility, but the reality is that even at graduation, many students still may not know what their practice area will be. If we don’t have a clue where we will ultimately end up, we are told not to worry, “you don’t really learn how to practice law in law school.” With this mindset, it is easy to see how one may (admittedly, short-sightedly) detach from the material being taught – do only what is necessary to earn the degree and get a job. Law school becomes a means to an end, something that must be endured. From what I can tell, there is a grain of truth to this frame of mind. Law school won’t teach us the in’s and out’s of the practice we eventually find ourselves in, but it does equip us to think, write and talk like lawyers. Most importantly, though, law school is our first real exposure to what it means to be a part of the legal community. As law students, we must put off believing that professional life begins after graduation, we entered the legal profession the day we began our legal studies. By impressing upon us the responsibility we bear to our future clients, and to the profession as a whole, we may find the classroom more relevant and ourselves more engaged.

A couple of weeks ago, a professor directed us to a blog that collected tips for voir dire. Last on the list, but certainly not least, was “Remember the Majesty.” The point was that though voir dire may be routine for many lawyers, there should be a reverence about the process and for the system which supports it. In my mind, we law students would do well to remember the majesty of the profession we have entered. While we may not all be starry-eyed about law school, we ought to realize that at this point we are very near entering practice which will affect lives and livelihoods in profound ways on a myriad of levels; no matter what our area of practice turns out to be, we will benefit ourselves and others through our breadth and depth of knowledge. Perhaps there is another way to instill this sense of reverence and responsibility in us, beyond a two-hour compulsory Professional Responsibility course. Lawyers take an oath when being admitted to the bar, why not take an oath when entering law school?


Several years ago, I had the privilege of attending Charles University as a visiting post-graduate scholar. Something I will never forget is the matriculation ceremony my fellow students and I went through at the start of the term. The ceremony took place in a building that dates to the fourteenth century, and possessed all the pomp and circumstance you would expect from one of Europe’s oldest universities (founded in 1348). Since the ceremony was mostly in Czech, I did not understand exactly what was being said, but there was no mistake in what I was doing. The purpose of the ceremony was the solemn act of taking an academic oath; we each in turn touched the University Mace (pictured), declared “I promise,” and shook hands with the Dean. The Rector closed the ceremony by impressing upon us the importance of our oath and the resolutions we had made. It was a powerful experience.

Perhaps instituting a matriculation ceremony and oath for all new law students would help to instill in us the gravity of the endeavor we are undertaking. It won’t reverse a trend in a generation, but it may shift our focus just enough to make a difference.

Quod bonum, felix, faustum fortunamque eveniat.

The Two Worlds Dilemma

In 18 months I will be an alumnus of PSU Law. I will receive invitations to return, to engage with the law school, and to "give back." I find myself wondering how the Two Worlds Dilemma will affect alumni cohesion in the future. As of right now (with the exception of students who transferred to UP from other schools) there are no alumni who attended only University Park. The 2007 and 2008 UP classes will have spent at least one year in Carlisle, causing some connection to that campus. But starting with the class of 2009, the only way the school will graduate students like that is if the students transfer back and forth between the two campuses from year to year.

This observation struck me as I attended alumni weekend in Carlisle and wondered what future alumni weekends will look like. A dual campus law school has three options: 1) host alumni weekend in the same place every year and nuts to the other location, 2) host alumni weekends in both locations every year and nuts to the alumni office budget, or 3) host alumni weekend in both locations, but alternate with one year at Carlisle and the next year at UP and so on and so forth. Either way, it's likely that students who graduated from one location will be less interested in attending alumni weekend at the other location. How many alumni weekends do you attend for schools you never physically attended?

This dilemma presents a challenge, particluarly to the current students who are future alumni of PSU Law. What will we do about the Two Worlds Dilemma? Will we be able to bring the two worlds together post-graduation? Or, will we just be happy to enjoy our world and nevermind the other world? Perhaps a barrier to cohesion is the sense of uncertainty people feel regarding the ultimate future of the dual campus law school. For those wondering if this is a temporary arrangement, it may be hard to pour energy and effort into addressing the Two Worlds Dilemma without knowing if, or for how long, the two worlds will exist under "one roof." The general mood at PSU Law may feel unsettled until that ultimate question is answered. It's my hunch that once that issue is settled the alumni will then follow suit and get busy supporting their alma mater(s).

REMICs Remix

Marie's blog post below is timely because another issue involving REMICs is currently hot in the tax world.

In February of this year, the Service issued a notice (2007-17) that described a pilot program aimed at increasing the amount of guidance provided by the Service:

"Under this pilot program, the IRS and Treasury would publish a notice for each guidance project selected for the program. The notice would identify research, background documents, drafts of proposed guidance and other work products, and ask interested parties to provide them. These written submissions from the public will help the IRS and Treasury determine whether it is appropriate to publish guidance. If so, the IRS and Treasury expect that increased public participation in the preliminary stages of certain guidance development would provide a significant benefit to taxpayers by permitting IRS and Treasury to hasten the publication of a greater number of guidance projects."

The first such notice was a request for guidance in the REMIC area (specifically, consideration of expanding the type of modifications on loans that a REMIC can make).

Some commentators have decried this program, stating that the wolves will be guarding the henhouse. While these are valid concerns, I believe the program is a good one. The Service is merely inviting proposals for drafting the regulations. It is not required to accept them. Outside groups have always influenced the development of regulations, this program appears to be just switching who gets to write the first draft.

Tranche Warfare

Jeff Kahn and I have been discussing the financial and tax consequences of mortgage debt forgiveness and restructuring as a response to the emerging crisis of default in the subprime mortgage market. This is too good not to share. The Congressional Research Service (CRC) has just issued a report to Congress that concludes that a private solution to the problem is more complicated than it would first appear.

Home mortgages are commonly pooled and sold by originators to Real Estate Mortgage Investment Conduits (REMIC's) who in turn issue securities backed by the mortgage payment obligation to investors. An REMIC can qualify as a pass through entity and escape corporate tax provided it refrains from "active management" of the financial assets it holds. Moreover, under Financial Accounting Standard (FAS) 140, when a mortgage originator transfers loans to a REMIC and agrees to service the loans, the servicer must refrain from "active management" of the loans or risk invalidating the "true sale" of the pool of loans to the REMIC for purposes of the originator's balance sheet. Both tax and accounting rules cause problems for a servicer who modifies mortgage debt.

The SEC as part of its oversight of the Financial Accounting Standards Board (FASB) stated in a letter to the House Financial Services Committee last summer that accounting principles regarding servicer passivity would not create an obstacle for loan servicers to modify home mortgages in favor of borrowers at risk for default. The SEC stated that modification of mortgage payement obligations by a loan servicer would not constitute "active management" of the loans.

The remaining problem, according to the CFC report, is not concern about corporate taxation or accounting treatment. In 1986, to accommodate the nascent securitization industry, Congress modified the tax code to permit REMIC's to divide the flow of mortgage payments among investors in tranches without triggering corporate taxation as "active management." For example, one tranche receives a priority right to payment over another, or a different intererest to principal allocation. Because most REMIC's have issued securities in tranches, when a loan servicer renegotiates mortgage obligations, one tranche may benefit while others lose. The disproportinate effect of renegotiation on tranches creates a confict of interest that loan servicers worry runs afoul of REMICs' obligations to investors. Putting out the fire caused by rising default and flat or declining home values in the consumer mortgage market may spawn another problem: "tranche warfare."

What's In Your IPod?

I just got an Ipod. I'm a little late to arrive at personal digital nirvana (the Buddist concept not the band) . But that's another story. As I browse the ever expanding universe of downloadable music, I replay scenes from my life that are always set to particular music: show tunes wafting from a huge turntable my parents could hardly afford; The Partridge Family; Boston and REO Speedwagon booming through the water during swim workouts, subwoofer face down on the concrete pool deck; Hendrix, the Dead and the Stones in places where parents weren't; Color My World where they were. And that just covers through high school. My new Ipod is a blank slate as daunting as any I've faced. The music I load isn't just entertainment. It's me-- who I've been and who I am now. It's my very personal soundtrack of rebellion, peace, regret, love, loss and triumph, with a lot of outstanding party action thrown in.

Is the identification I feel with popular music -- it's capacity to describe me -- unique to me, or to my generation, to describe us? Jefferson Cowie, a college writing teacher, gave his students an assignment: Assess the personal meaning of any song of any genre. His students' response surprised him. In an essay appearing today on insidehighered.com, Cowie wrote:

"For my students, rock and roll is not the aural fuel of rebellion but soundtrack of familial love and safety. The [student] essays were not about chillin' with the crew but hangin' with mom and dad; . . . about heading off to Cape Cod in the mini van. Rock is no longer about alienation but connection; not about escape but home; not about rebellion but reconciliation."

Cowie wonders whether Millenennials' parents have so smothered them with attention that they stake no claim to a musical identity of their own. "[I]t seems that there ought to be at least an edge of disdain for the SUV-driving, suburban-dwelling, vanilla affluence of their parents, but instead, students remain hopelessly connected to them, not just by their ubiquitous cell phones but also by their parents' record collections."

This idea, that Millennials are best defined by the absence of rebellion, is a theme of Nicholas Handler's essay: The Posteverything Generation. Handler, Yale 2009, won the recent New York Times Magazine essay contest in which the Times invited college students to respond to Rick Perlstein's assertion that colleges have lost their centrality in society and in students' lives. Handler writes:

"We are a generation that is riding on the tail-end of a century of war and revolution that toppled civilizations, overturned repressive social orders, and left us with more privilege and opportunity than any other society in history." But, with all that, "[l]ike a true post-modern generation we refuse to weave together an overarching narrative to our own political consciousness, to present a cast of inspirational or revolutionary characters on our public stage, or to define a specific philosophy. . . We are a generation for whom even revolution seems trite, and therefore as fair a target for bland imitation as anything else. We are the generation of the Che Guevera tee-shirt."

Handler makes a chilling observation about his generation: "How do we rebel against a generation that is expecting, anticipating, nostalgic for revolution?" His answer: "We don't."

Cowie's classroom experiment and Handler's thoughts are not enough to brand an entire generation of people one thing or another. But their observation about a postmodern comfort-loving boredom that hangs over law students these days rings true to me. I wonder why students seem increasingly detached and unwilling to engage in classroom discussion. Is it a generational thing? Or, is it just more fun to browse for music online than to participate in class?

Being Patient in the Studio

My last few posts have centered on the theme of understanding, which I suppose is indicative of the point I am at in my legal education. As a 2L, I am “in the studio” of law, taking the utility courses in order to lay the foundation of my legal knowledge. While I am comfortable with the notion that life is a journey spent pursuing deeper understanding, the impatient part of me wants to just get there. I envision “there” as the place where the intuition, factors, policy and history of law all meld happily together in my brain. Being “there” would mean that I could add my own contribution – creativity – to resolve complex issues by maneuvering through the law with the seeming effortlessness of my professors (or at least to know where to start).

I am working on my note for law review this semester. The wonderful thing about working on a project like this as a student is that we have access to some amazing minds in our faculty. Not only are our professors receptive, insightful and generous with their time, they model adeptness in legal scholarship. The fact that each professor I have approached is able to think along with me, give me constructive feedback, and suggest useful resources, all extemporaneous and without familiarity with the specific subject, is striking. I want to be able to do that.

What I have observed in my professors is that their creativity stems from a solid foundation of knowledge. Creativity alone is insufficient; in order to press legal scholarship forward in a meaningful way, one must have a command of the fundamental principles of law. In this way, legal scholarship is like choreographing a ballet. Choreographers may have inspired visions of expressive movement, but without technical proficiency and mastery of ballet form, the composition will be wanting. So is legal scholarship rooted in a mastery of the substance of the law. As novel as an argument is, if it departs without justification from what is known, it will fail to persuade.

I am an aspiring legal scholar, and while most of what I am now learning is principled and structured, this structure provides the framework for creative thought. Before I can begin to “choreograph” with the law as my professors do, I must spend more time mastering the fundamentals in the studio.

Is this Heaven?

No, it's the view from Skytop Mountain into Happy Valley. The photo is by Henry Gong, a State College local.

Just Passing Through?

PSU Law's administrators and faculty are working hard to build a first class faculty. This is both commendable and necessary. As mentioned previously, a law school is only as good as its faculty. In the meantime, while the Dean holds out for prominent or promising scholars to fill the faculty ranks, students are treated to a heavy dose of visitors. An unspoken consequence of this process is insecurity.

When a visitor teaches a class, the relationship between student and professor is necessarily insecure. Students wonder: Will he/she be here next year or the year after that? The visitor probably wonders: Should I invest in these students (organizations, moot courts, journals, etc.) if I may just be "passing through?" This insecurity interjected into the teacher-student relationship would be fine if that relationship was only about conveying and learning the law. But it is about much more. The classroom experience and every aspect of law school helps students understand themselves, form new identities as lawyers, and cultivate relationships on which they will build their legal careers. The relationship is not only one way. Professors benefit from their interaction with and investment in students too. With a visitor, however, the payoff from investment in the relationship is insecure.

Visitors add value to law schools as they pass through. As the ratio of visitors to permanent faculty grows, the effect of insecurity in the classroom and elsewhere grows. The sensation is like standing on shifting sand for both law students and tenure line faculty members looking to maximize their investment in the school.

I'm thinking of the words spoken to the Israelites when they were in exile. Despite insecurity, we should try to make the best of even a temporary situation: "Seek the peace and prosperity of the city to which I have carried you into exile . . . because if it prospers, you too will prosper."

That's Billion with a 'B'

How many credit card solicitations will people recieve in the mail during 2007? 5.3 billion according to research firm Synovate. Stunned? Shake it off. That number is down from last year, when 5.76 billion envelopes landed on us. The all time high so far was 6.05 billion offers in 2005. Ever wonder about the response rate? Credit & Collections World reports that Synovate predicts response rates will rise just a tad from 0.5% to 0.6%. Seems like a lot of paper for nothing? A 0.6% response rate yields about 32 million applications for new credit cards.

I Teach for Penn State

Jim Chen has renewed a discussion on MoneyLaw about law school naming rights in response to Berkeley Law's announcement that it is abandoning the Boalt name. He counts 33 US law schools that bear a name other than their host university, and suggests a NCAA style tournament among the schools (with a play in for the 33d) "[t]o see which schools' alternate names are the most obscure, the most confusing, and ultimately the most destructive of a simple marketing strategy that roughly 150 other law schools have no trouble following: [name of university] + Law. " Penn State University Dickinson School of Law appears in the East Regional.

With respect to those whose allegiance is divided, and with some liberties taken with the original text, here's what I say: I teach for Penn State. There is no name on my jersey. I teach with heart, with pride, to Win. For my colleagues, the students. I teach for those who came before me. For the glory of Old State. I teach for Penn State. WE ARE... PENN STATE.

Fraud Tops List of Business Issues

PricewaterhouseCoopers' Global Economic Crime Survey 2007 concludes that corporate fraud remains a leading problem for businesses worldwide. The report issued October 16 summarized the results of a survey conducted in 40 countries between May and September 2007. 5,500 corporate officers who claimed to be responsible for crime prevention and detection within their companies responded to the survey.

The report concludes that despite regulatory responses and increased internal controls in the wake of recent corporate fraud scandals in the US, fraud remains one of the leading issues for corporations, with nearly half of all companies experiencing corporate crime within the last two years. The most reported economic crimes were asset misappropriation, accounting fraud, corruption and bribery, money laundering, and intellectual property infringement. The average loss from fraud increased around 40 percent from the last survey to nearly $2.4 million. Survey respondents in emerging markets said that corruption was their number one concern. As for IP infringement, 44 percent of cases worldwide that involved an overseas company involved a Chinese perpetrator.

In the US, Sarbanes-Oxley legislation appears to have had some effect on accounting fraud. It decreased to 13 percent from a prior rate of 36 percent. 71 percent of US respondents reported that Sarbanes-Oxley was at least marginally effective in exposing or deterring certain kinds of economic crime.

Some findings confirm popular ideas about corporate misbehavior. The typical perpetrator of economic crime is male, middle aged, highly educated and working in mid or senior level corporate management. The level of damage is directly proportional to the seniority of the perpetrator. The report concluded that systematic controls alone will not succeed in curtailing fraud. "Companies need to build loyalty to the organisation, give employees the confidence to do the right thing, and put in place clear sanctions for those who commit fraud, regardless of their position in the company." Good luck with that.

Increasing the Pie

Kelly's post below illustrates why her career path leads to the transactional side of the law. As a transactional tax lawyer (as opposed to a tax litigator), I also enjoyed the intellectual exercise of negotiating how to structure organizations, deals, mergers, etc... in order to get the best result possible for all sides at the table while still meeting the client's goals. In the Business Organizations course, I emphasize that one of our key roles as business lawyers is not to argue over who should get the biggest slice of the pie, but instead to increase the size of the pie that is being split.

I used to believe that a litigator had a different role to play. However, in today's legal climate, so many cases are settled or head to mediation that the same skills are needed by that classification of lawyers as well.

However, cases still go to trial and I am a great believer in the adversarial system. I believe that competition (and strife) lead to the best result when two sides represent their clients in the law arena.

I would gladly have the Zen lawyer represent my company during merger talks, but when it comes time to sue the other party for breach of contract, I will feel more comfortable with the lawyer who doesn't do meditation but instead goes by the religion of winning.

The Zen Lawyer

My own tenets of faith lead me to believe that being at peace with others is a virtue. Law practice, then, would seem to be in direct conflict with this philosophy. Lawyer jokes abound in society for a reason; yet while much of law practice is seemingly contentious in nature, I see lawyers as capable of serving as the ultimate facilitators of peace.

To me, the practice of law is most virtuous when it is pure in its pursuit of understanding. In understanding, we realize the end of strife and the beginnings of resolution. Resolution ushers in peace, it preserves; strife does the opposite. We can preserve ourselves, our society, and countless relationships, by seeking understanding. To resolve conflict, preemptively or not, rather than create it, is the job of a lawyer. The unique position of being on the front-lines of controversies in society gives lawyers the opportunity to facilitate peace by advocating for resolutions which incorporate the goals of all parties concerned. Of course, not all lawyering is about reaching accord. Sometimes being a good lawyer is being the best “hired-gun” possible; to get a win for the client is a virtue itself.

As I wrestle with my own yearnings for peace and understanding in an environment brimming with discord, I appreciate that at my core I feel no conflict. To breed understanding is to facilitate peace and ultimately to ensure preservation.

“Bowed down then preserved;

Bent then straight;

Hollow then full;

Worn then new;

A little then benefited;

A lot then perplexed.

Therefore the sage embraces the One and is a model for the empire.

He does not show himself, and so is conspicuous;

He does not consider himself right, and so is illustrious;

He does not brag, and so has merit;

He does not boast, and so endures.

It is because he does not contend that no one in the empire is in a position to contend with him.

The way the ancients had it, 'Bowed down then preserved', is no empty saying. Truly it enables one to be preserved to the end.”

From the Tao Te Ching by Lao Tzu.

What Should We Do Next?

Alison sees tension between law and morality. She wonders how law sometimes appears to further a moral goal (e.g., tax benefits encourage people to marry and marriage is morally superior to non-marital collaborative forms). At the same time, lawyers appear to justify law without reference to any stable moral objectives. She wonders why law sublimates morality or worse, appears to proceed entirely without reference to it.

Here's my explanation. The most basic function of law is to order society toward its most basic goal: survival. The closer the connection between law and survival, the easier it is to see (and find consensus in) the moral basis for law. For example, we all tend to agree that theft, murder and rape are morally wrong. Even those who do not believe they contradict God's law, intuitively understand that these behaviors waste resources and threaten the survival of our species. An economy based on physical force rather than voluntary exchange draws resources from farming, building and learning into self-protection which yields no social value. Putting the same idea another way, the greater the perceived impact of law on survival, the closer the link between morality and efficiency.

The tension between law and morality becomes increasingly clear as law moves away from its most basic function. We simply do not agree on how to maximize social wealth at the margin. Marriage is a good example. Alison notes, perhaps nostalgically, greater consensus on moral behavior and a larger justificatory role for morality in law in the second half of the nineteenth century. During this time, marriage as a legal institution served as a tool of social control, to insulate investment (by women) in child-bearing from the vicissitudes of market economy. Through the first three quarters of the twentieth century, my mother's generation viewed marriage and motherhood as a career option (along with nursing, teaching and religious life). Since then, much has changed. The social function of marriage has become attenuated from survival. We debate the social function of marriage, not necessarily because society has become less moral, but perhaps because marriage is no longer as powerfully connected to the survival of our species.

Given changes in reproductive technology, and the economy, we believe we can survive as a species without marriage as it was traditionally constituted -- the exclusive legally sanctioned locus for sexuality and child bearing. So, what should be the purpose for legal regulation of marriage today? Once law moves beyond survival, once we achieve the luxury of social stability, competing ideas about the next order of goals emerge. Social stability breeds tolerance of competing ideas. Pluralism makes democracy both possible and necessary. But, democracy is inherently inconsistent with the ideal of moral truth.

Welcome to the profession Alison. We lawyers give voice to competing ideas about what we should do next. You will find yours and no doubt it will be formidable.

"Marry Early and Often"

Last week that statement was offered in class as a policy rationale behind the law of Trusts & Estates. I was amused at first blush. One might hear that statement today and think, "That is positively archaic." As a married woman, I think, "Finally, some support for an institution it takes great courage to enter into these days!"

However, once my amusement wore off I started to wonder more about such morality-based policy rationales. They seemed to make perfect sense in the germinal days of American jurisprudence when people for the most part shared the same moral compass. However, in our increasingly "live and let live," morally relativistic society, I wonder whose morals will drive legal policy in the future? Will their morals be ones that I want to influence the laws under which I live? Will people even believe in their own moral compass enough to fight for morality in law? These questions affect our ultimate liberty as a people. In the first half of the nineteenth century, Alexis de Tocqueville observed that, "Liberty cannot be established without morality, nor morality without faith." He did not say faith in Who, but he did say faith. In a culture that is increasingly ambivalent towards morality, it will be left up to those whose faith fuels their moral compass to rise up, exert their influence over the law, and ultimately our liberty.

Law and Children

James Lileks (one of my favorite online reads) has posted a great story about parenting, precedent and justice.

The story reminds me that many things we study in law school are just part of the natural order of life. Children crave both consistency (if I had ice cream yesterday, why can't I have it today) and justice (taking away popcorn for a small lie should clearly be considered a violation of the 8th Amendment). These considerations reinforce my notion that law school will help all students, even those that do not plan to become a lawyer.

I know law school has made me a better parent, although I am sure my son will tire of hearing that his pleading is rejected since he has come to the table with unclean hands.

The Agony of Defeat

Kelly's reference to Emily Dickinson's poem in her comment to an earlier post deserves a bigger screen.

Success is Counted Sweetest

Success is counted sweetest
By those who ne'er succeed.
To comprehend a nectar
Requires sorest need.

Not one of all the purple host
Who took the flag to-day
Can tell the definition,
So clear, of victory,

As he, defeated, dying,
On whose forbidden ear
The distant strains of triumph
Break, agonized and clear.

The photo by Peter Richardson depicts Julius Jones reacting to Nebraska's defeat of Notre Dame.

Humility: The Pursuit of Understanding

Pursuing a legal education has imbued a sense of self-confidence in me. I have felt “at home” in the legal academy in a way that I have not experienced before, I believe I have found my calling and I couldn’t be happier. It makes this life-long nerd, finally feel comfortable in her own skin. However, the self-confidence is limited to feeling as though I am in the field I am best suited for, not that I know what I need to know, I have only just scratched the surface of learning the law. This distinction illuminates to me the paradox of simultaneously experiencing self-confidence and inferiority.

The law is vast, dynamic and intricate; I am in awe of those who have earned the right to be called experts in any area of law. My feelings of pride for being a part of this profession are felt as acutely as my realization of my own inadequacies, and I am humbled. Humility, however, is a place of strength. It was Socrates who made the point that there is wisdom in knowing there is much we do not know.

This profession demands its practitioners to continually learn and grow in their understanding of the law. Perhaps this is what makes the academic community so rife with energy; there is no stasis in legal education. My hunger to know and to understand is not something that can ever be completely satiated, there will never be a point in time where I know “enough.” Sure, I can get to a point where I know enough for a discrete purpose, but that is a microcosm. It is humility which makes the good trial lawyer comprehend the nuances of his opponent’s case, thus enabling him to win. To recognize different points of view and seek to understand an issue from opposing sides is to acknowledge our myopia and seek to overcome it. The importance of humility can never be underestimated in the practice of law; humility rejects complacency and requires continual growth. Continued learning is our responsibility and duty, it benefits the client, and that is what this profession boils down to. Whether you are in the academy and your client is a student or whether you are in practice, the law calls us to pursue that which we do not yet know.

The Question

The topic of the process by which we select new faculty came up a year ago on MoneyLaw. Jim Chen, then a brash voice for innovation in legal education, now Dean Chen, a leader in innovation in legal education, suggested a Moneyball approach to law faculty interview questions. His post is here.

His suggested questions:

Do you speak some language besides English? If not, why not? Or perhaps you might tell us about your favorite book.
3, 4, 5, and 5, 12, 13 are Pythagorean triplets, or integer solutions to the Pythagorean Theorem, a2 + b2 = c2. Quick. Name another triplet.
Name your favorite song or other musical composition and explain why.
Ballet, football, baseball, fencing, yoga, aerobics. Pick one, either to watch or to perform. Then explain.
It's late June, and you observe the waning moon setting. What time is it, more or less?
Please recount one thing you've done to a friend that you wish you could undo.
What is your greatest weakness, and why should we hire you in spite of it?
Okay. Just as a lark. What is your favorite plant or animal, and why?

I like this question: If you couldn't be a lawyer or a legal academic, what would you like to do with your life? My answer: Lounge singer -- assuming of course that I could add talent to the fantasy.

I think the Pythagorean Triplets question is a gem. It would no doubt uncover candidates who chose law so they wouldn't have to do math. I would like to know that about a candidate from the get go.

On Success

Don't miss Jim Chen's post, The Catastrophe of Success, on MoneyLaw. I had forgotten the power of Tennessee Williams' pen to cut to the core of life.

You Say Potato....

I am pleased to have been invited to participate in this blog. Lately, I have been considering my position on the Penn State DSL appointments committee. The AALS recruitment conference (the “meat market”) is coming up in a few weeks and I have begun thinking about what questions I would like to ask each candidate.

I have a few considerations when thinking about a useful question. First, there is the time constraint. We have approximately 25 minutes with each candidate and obviously I cannot monopolize the conversation. Second, I want the question to surprise the candidate. I don’t want stock or prepared answers. Finally, I want the answer to provide me with some useful information. I could ask a candidate: if you were a vegetable, what vegetable would you be? That would certainly surprise candidates, but I am quite sure it would not help in deciding whether they should be appointed to the faculty.

One question that I intend to ask is why the candidate thinks scholarship is important. Many candidates rightly view scholarship (or promise of scholarship) as a requirement to get the job, but I want to know if they have thought about why it is so important to our profession. I am also interested to hear candidate’s views on related scholarship issues such as target audience (other academics, lawyers, judges, Congress, students), scholarly aspirations, etc…I believe that the answers to these questions will tell me more about the candidates than merely their views on why we write.

A Patent for your Thoughts

On the subject of lawyers thinking, the Court of Appeals for the Federal Circuit (CAFC) recently heard an appeal on the patentability of thought. In In re Comiskey, Stephen W. Comiskey, a lawyer, sought a patent on a business method he devised for resolving by arbitration disputes about the meaning of legal documents like wills, trusts and contracts. The Patent and Trademark Office (PTO) took the view that Comiskey's dispute resolution methodology was an unpatentable abstract idea. The disqualifying feature was that no aspect of the process existed or interacted with anything outside of Comiskey's brain. In particular, his claims impermissibly "encompass[ed] a method of controlling how humans interact with each other to resolve a dispute, based on a human arbitrator's perception of the dispute." On appeal, the CAFC affirmed, holding that patentable subject matter is a broad category, but not broad enough to make a human thought process patentable.

The CAFC noted, though, that some of Comiskey's claims involved a module which the court read as including a computer or other non-human data processor. A brain-generated analytical process can be patentable if it "is embodied in, operates on, transforms, or otherwise involves another class of [patentable subject matter], i.e., a machine. " The CAFC remanded so the PTO could consider whether the addition of a computer to human mental processing would merit a patent for his dispute resolution process, in particular, whether the application of a computer to Comiskey's dispute resolution process would have been non-obvious to a person of ordinary skill in the art.

The Supreme Court has long held that "a principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, for no one can claim in them an exclusive right. " Le Roy v. Tatham, 55 U.S. 156, 175 (1852). As the CAFC eloquently noted in Comiskey: "[I]t is established that the application of human intelligence to the solution of practical problems is not in and of itself patentable." Despite Comiskey's efforts, pure thought is still free for the taking.

Welcome Professor Jeffrey Kahn

Red Lion Reports warmly welcomes a new contributor, Professor Jeffrey H. Kahn. Professor Kahn earned his J.D. at University of Michigan in 1997. After graduation, he practiced for three years in the tax group of the Chicago office of McDermott, Will & Emery. He needed more tax than practice had to offer so he became a law professor at Santa Clara University School of Law. His perspective on the legal academy is enriched by his experience as a visitor at Vanderbilt, Stanford, Hastings and North Carolina. Prof. Kahn joined the PSULaw faculty in 2006. Although, he teaches and writes mostly about federal tax, he perceives much more than the tax implications of a wide variety of issues.

Do Lawyers Think?

“Thinker,” for me, the title engenders thoughts of contemplative, thoughtful, creative, visionary, strategic, humble, open-minded individuals. When someone tells me I am a thinker, I am moved by the compliment; it is what I aspire to. I love discussing the philosophical underpinnings of law and government, I love exploring how law and society shape each other. To think about the dynamics behind the policy and the reasons we fight for certain protections, seems to be fundamental to understanding law because it provides clarity and context. Only with clarity and context can we hope to effect change. However, I have had the impression from some that law school is not about producing thinkers, it is about producing law practitioners. My contention is that there should be no difference. (While there are several types of thinkers in the world, I am focusing on the lawyer-thinker.)

A thinker is someone who possesses a natural curiosity about the world and how and why it works the way that it does. A thinker is not a mere navel-gazer, though self-reflection and awareness are an essential part of developed thinking. A thinker is someone who is not satisfied with a party-line; the thinker challenges the status quo, not for sport or the sake of argument, but because he seeks the fullness of understanding, and understanding is the thinker’s pleasure. The pleasure of understanding is not an end unto itself, however, because the thinker is then able to use that understanding to find new, perhaps more effective or efficient ways of bringing about a desired outcome. It is a marriage of creativity and understanding, and in that union, the lawyer as thinker can change society, no matter the scale.

Effective lawyers must be thinkers. By entering this profession, haven’t we necessarily determined that it is nobler to “take up arms against a sea of troubles, and by opposing, end them” (harkening back to Alison’s allusion to the perennial question)? To produce a good law practitioner is the duty of the law school, but to produce good thinkers will not only yield good law practitioners, but individuals who can, and will, make a difference.

Elementary My Dear Watson

Law students learn to think critically about law forensically. Like detectives, law students observe the facts and the opinion and work backwards to uncover what really happened and why it happened precisely that way. Consider this exchange between Sherlock Holmes and Dr. Watson:

"I have already explained to you that what is out of the common is usually a guide rather than a hindrance. In solving a problem of this sort, the grand thing is to be able to reason backward. That is a very useful accomplishment, and a very easy one, but people do not practice it much. In the everyday affairs of life it is more useful to reason forward, and so the other comes to be neglected. There are fifty who can reason synthetically for one who can reason analytically."

I confess," said I, "that I do not quite follow you."

"I hardly expected that you would. Let me see if I can make it clearer. Most people, if you describe a train of events to them, will tell you what the result would be. They can put those events together in their minds, and argue from them that something will come to pass. There are few people, whoever, who, if you told them a result, would be able to evolve from their own inner consciousness what the steps were which led up to that result. This power is what I mean when I talk of reasonaing backward, or analytically."

Sir Arthur Conon Doyle, A Study in Scarlet (1887).

Building for the Future

"The quality and creative power of student intellectual life to this day remains a vital measure of a school's influence and attainment." Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 836 (1995) - Justice Kennedy's majority opinion

I've been thinking lately about what makes a good law school great. For starters, all great law schools have at least one essential element: first class faculty. Great thinkers beget great thinkers. They model critical thinking, they train us to think critically, and they draw critical thoughts out of us through the give and take of classroom discussion. Bottom line, faculty matters. However, while students may grouse about rankings and expect the administration to do something about it, I can't help but wonder whether students too can impact the "measure of [our] school's influence and attainment."

Can law school students influence the shift from good to great? How? Well, it has a lot to do with the mentality with which we approach our legal education. I can start by making a few suggestions, but I whole-heartedly welcome additional suggestions in the comments following this post.

(1) Create a culture of excellence by making the most of opportunities to learn and seriously considering our individual contributions to the whole.
(2) Think generationally. We will benefit in the decades to come from the influence and attainment of the law school over time. Future students will only achieve greater heights by standing on our shoulders.
(3) Help one another adhere to a code of professional behavior that will make us proud to stand in a courtroom one day and be sworn into the bar.
(4) Be curious. With the internet we have unprecedented access to the latest coming out of One First Street Northeast and opportunities to dialogue with our colleagues via blogs.
(5) Think solutions. We are members of an elite legal community that will be called upon to solve the world's problems (well, some of them at least). While in law school we can learn not only to identify areas of weakness, but also to contribute positively so that they become areas of strength.

We students at PSU DSL in both locations have a unique opportunity. We are on the ground floor of what the law school is going to be. We are taking the first steps on the journey towards where the law school is headed. We are experiencing the growing pains and challenges of transition space and we have one more major transition coming down the road: the transition into our new buildings. It's a clean slate of sorts. We can reflect back on the tone of the past couple years and ask ourselves, what attitudes do we want to carry with us into the new space? Which ones do we want to leave behind? What lessons have we learned from this season of transition? What worked? What didn't work? What built up and what tore down? We have an opportunity to set the tone for the current student body and to lay the foundation for years to come.

Questioning the Court

I have been doing mental gymnastics this week about a case I encountered a few days ago. Despite the encouragement of our Civil Procedure Professor last year, I have struggled with the idea of criticizing a court’s opinion. Slowly, timidly and with great anxiety, I am starting to test the waters of critique when it comes to an opinion. From day one in law school, we learn by cases; the cases are representative of the Law, and as such, they have a certain aura about them. To question the rationale of a court’s opinion at this point in my legal development has seemed a bit premature. However, I am reminded that Chief Justice Marshall had less than a year of formal training, yet his impact on the practice of law was, arguably, the most significant of any member of the Supreme Court. The point is that the law is man-made, and as such, it is not perfect. Individuals have made the law what it is today, and while they were novices at one point, they grew into policy-makers. By pulling back the curtain, the effect is not disillusionment, but the prospect of a deeper understanding of the law.

This new foray into critique has given me additional opportunities to banter with peers and ask questions of professors, the result has been not only a deeper grasp of the material, but a renewed appreciation of legal discourse. It is through this discourse that our own ideas about self, law and society are refined. The study of law isn’t purely an objective study about what the law is, but a subjective study of what the law should be. (Kafka, anyone?) If we think a law, holding or policy is wrong, and we can articulate our reasoning, then we can attempt to change it. Alternatively, by delving into our reasons for disagreeing with a holding, we may come to find that we failed to understand it properly in the first place. It is win-win.

To Ask or Not to Ask

That is the perennial question law students ask ourselves as we ponder during class the legal discussion whirring around our heads. We think, am I getting this? Should I just hang in there and keep listening? Do I need to ask this question now so the principle of law at hand will all then become clear? Can I instead save this question for after class or office hours? Is this just a minor point I am curious about or take an unusual interest in?

I've noticed a shift from the 1L year to the 2L year, and wonder why we ask more questions this year than last. Are we more comfortable with our professors and not as intimidated? Is our thinking about the law more clear and, thus, lends itself to a free flow of questions? Perhaps we just have more questions this year than last. However, I can't help but remember a story I heard about students taking a cue from college basketball and "running the clock," so-to-speak, to stall the progression of the class. They would ask questions toward the end of class, just to keep the professor on the same topic in the last few minutes and avoid moving forward in the material. The merits of running the clock are seen on an occasional basis, at the very end of class. The merits of running the clock 5, 15, and 25 minutes into class are less clear though. It can contribute to an overall malaise as students check-out while inane questions are addressed. The class can lose its mental steam and stall out way too early in the game. Or, class may become a series of starts and stops as we mentally check in and check out based on the nature of the questions being asked.

Questions are an invaluable part of the learning process, it's the give and take between professor and his/her legal progeny. We learn from the curious nature of our colleagues and we feed off the collective brain trust of the group. That is why we continue to ponder and to wrestle with that perennial question, "to ask or not to ask?" That IS the question, and when we ask it, we help avoid the trap of running the clock too early in the game.

But Debt Lasts All Night

Kelly's post about the gilded web of death and taxes prompted me to make a pitch for my livelihood and passion: Debt. People die, and many are compelled to make a game of it, arranging their affairs so as to pass wealth to their heirs with the lowest possible tax effect. I like the bigger game. Debt. In the past two years, more than $300 billion in adjustable rate home mortgages have adjusted sharply upward, putting the big squeeze on more than 300 million Americans. Something's gotta give. If consumer bailouts don't ring your bell, there's plenty of action for the big boys and girls. Check out the Implode-o-Meter, a site that lists major financial institution failures arising from the collapse of the subprime lending market (161 and ticking). The collapse of these lenders and other players in the capital markets will generate a heap of litigation enough to share with the "non-bankruptcy" lawyers. Sure people die. And some want estate planning before they go. But we all feel the leverage. A career in insolvency is the ultimate hedge. For us, bad news is good news.

Welcome Alison Kilmartin

Red Lion Reports welcomes Alison Kilmartin as a contributor. Alison is a member of the PSULaw class of 2009. Before matriculating to law school, Alison worked in the mall, as a nanny, at a bank, as a barrista, for the Energizer Bunny, and for Penn State in the development and alumni relations office. Oh, and she rocks, literally. I'll let you ask her about that.

The Security of Death and Taxes

“In this world, nothing can be said to be certain, except death and taxes.” ~Benjamin Franklin. Our culture has embraced this somewhat sardonic notion with a smirk and a wince. It evinces two unpleasant thoughts, neither of which evokes a sense of security, but rather a dismal certainty and unfortunate reality. Before this semester, I’ve never given the quote much more than a passing thought. Recently, however, it kept resurfacing in my mind; the more I pondered it, I came to appreciate that, for me, the “certainty” is actually a form of security, job security that is.

Two of my courses this term are: Basic Federal Income Tax and Wills, Trusts and Estates. I hesitate to say that I have chosen my practice area, yet I am leaning towards Estate Planning. Death and taxes are two subjects that most people don’t like to think about, especially when it is their own, yet they each can have a tremendous negative impact on the family left behind when ignored. One element of Estate Planning which appeals to me is the counseling nature of this practice. To be able to walk with someone through their vision for the final disposition of their assets and to create a plan which effectuates that vision, strikes me as both an immense privilege and responsibility. It is a practice which involves a great deal of creativity, sensitivity and precision. More fundamentally, Estate Planning is a practice which gets at the very core of what being a lawyer means to me, a “Counselor.” Lawyering is principled on the duties of the lawyer as a fiduciary for the client, and this is transcendent across all areas of practice. Whether or not I go this route, my career will be enhanced and secure by focusing on this recurring theme in my classes and research. For now, I appreciate knowing that as long as there remain death and taxes, there will be a need for lawyers; I feel good about the odds and there is certainty/security in that.