Liquidation Sale

I stopped by our local Circuit City to have a look at the liquidation sale. The big letters on the red and yellow signs, primitive marketing but wildly effective. The parking lot was packed. The store was buzzing with folks fondling cameras and considering once again the 52 incher.

What explains the mob at Circuit City? It surely isn't the 10% discount. I ran into a couple of law students who were comparison shopping a tv. A quick phone call to a friend with an internet connection and they concluded that the liquidators jacked up the price of the tv before the discount. Ten percent off is insulting anyway.

It isn't the sale. Circuit City failed and we who were there flipping through the XBox 360 games less 10% were still alive, still warm, and still optimistic enough to consider, even for a moment, a big screen. It wasn't the ten percent. The draw is the basic delight at the misfortune of others. Schadenfrude.

What Hath Law School Wrought?

I am taking Professional Responsibility this semester. This week in class we talked about the gulf that obtains between lawyers and non-lawyers in society. More than that, there is alleged to be a gulf of similar span separating lawyers as they are now from who they were when they first walked into law school. Specifically, law school is believed in much of the relevant literature to render those subject to it less reactionary and more conservative, in the non-political sense of that word.

It is not surprising that law school should change a person. As students we spend three years reading cases that lay out the opposing sides' arguments. We read dissents from majority opinions. We read cases where an appellate court reverses a trial court or where a state supreme court reverses the appellate court. Of course we read cases of the Supreme Court of the United States, which does what it will, and about which it is said that it is not final because it is right, but right because it is final. And too we read of cases with similar facts decided differently in different jurisdictions. In short, we become accustomed to needing to see a thing all around before coming to judgment on its nature. That is not what the mass of society is in the habit of doing.

Hardly surprising then, that when released back into society newly minted lawyers should have some trouble relating to non-lawyers. And if it were possible to introduce them to their former selves, the trouble would be no less. The joke told at the orientation for my class was that three years later we would know enough to answer most questions with, "It depends." No self- respecting reactionary, nor even a host of a cable television talk show (which might be the same thing), would be caught saying something like that.

For me personally, one of the worst things to happen in law school was my realization that the woman in the McDonald's hot-coffee-in-the-lap case had a point. I think before long every law student, present or past, will have this experience: someone, family or friend, will pull out a news story about some facially absurd law suit. Then everyone present will denounce the suit. Then they come to you. Wanting to commiserate yet constrained by self respect, you say something detached like, "That's something." But the others find this judgment unsatisfying and press you for a more strident condemnation of the thing. At length you are obligated to say something even less satisfying to them, but which warms your innards; something like, "Well, the relevant standard..." And then the outrage of the group moves from the lawsuit to your profession, and, the undertaking being in jest or not, you are distanced from those folks to some degree.

Such is the burden of a life in the law, I suppose. Speaking for myself, while I am nostalgic for the guy who could enjoy visceral outrage at the McDonald's case, I cannot wish to lose my hard-gained understanding (like how that dude in the Matrix can't go back to the cocoon). Happily, I still don't think the McDonalds woman should have recovered; though it would take me some time, and possibly some footnotes, to explain why.

Reflections on the Semi-Annual Receipt of Grades

Law school grades are the immediate return on a student's investment in his classes. They are a very large part indeed of a typical student's emotional return for that investment. Each year at this time and again in the spring law professors receive emails and visits from aggrieved students, who feel they merited a better grade. Many of these complaints are based on the grade itself being unsatisfactory, as distinguished from the grade being inconsonant with the effort made. Many high functioning students will receive the first unwanted grade of their entire academic careers in law school. And whatever its merits, the zeitgeist that built self-esteem divorced from accomplishment does not well-prepare those students for the affront of a grade less than some species of A. So the professors brace themselves in their offices and entertain the complaints; in my experience, with the detachment of a doctor giving an unhappy patient the news. The grade, that is, is unchangeable as a dire prognosis, and the professor is there to help the student accept that reality. This steadfastness, it must be acknowledged, is adopted more in contemplation of the slippery slope than for its inherent justice.

The students are not always there for vanity. Employers value high grades. That will not change, nor can there be a convincing argument put forward as to why it should. If an employer selects someone at the top of her class, that employer gets a highly competent and intelligent person. Because grades are to some extent irreducibly arbitrary (and perhaps not even the best way to gauge ability) employers will overlook some comparably endowed students further down in the class. But so what? The employers will get what they need. And these others may come to them as proven professionals somewhere down the line, without employers assuming the risk associated with an unlettered hire.

There are some employers who look almost exclusively at first semester 1L grades, because they believe that is the semester where the students are all starting from the same point, and are all in direct competition with each other. Such employers either do not know or do not care about the impact of the cottage industry that has sprung up to teach entering students (with the money to pay the fee) how to game law school exams. In any case, the fiction that all students start from the same place is pointed up by those students who show up to the first day of law school carrying campaign posters for their election to some office or another (it doesn't seem to matter much which office), while the rest of the student body is dedicated to finding out where to pick up their I.D.'s and locker keys.

When I was in undergrad, I studied a concept called the fundamental attribution error. It refers, as I recall, to the tendency we all have to ascribe a failing of our own to ephemeral and external conditions and to ascribe the failings of others to their own indelible defects. For example, if I do not do well in an oral argument exercise, it was because I didn't sleep well the night before or because I did not have sufficient time to prepare. But if Nancy or Bobby does not do well in the exercise, it is because they just don't have it in them, etc.

Another aspect of the concept is to accept good fortune as an exchange for merit and to regard bad fortune as a failing of another. So, for example, if I get an A, the professor got it right because I did A work. But if the professor gives me a C, the professor (and it can even be the same one) did me an injustice.

We all have a certain amount of self-regard. And law students especially. I remember at orientation viewing a Power Point presentation about the personality traits of law students. Having just read a book by John Douglass (the FBI profiler guy), I recognized the list. I said to the guy next to me, "Those are personality traits of serial killers." Add to this inflated self regard the fact that grades are to some extent arbitrary, and invariably highly ramified for a student's career, and you could script out the scenes, sight unseen, that occur when grades come in.

Rather like someone in an opposing trench in the Great War, I respect and sympathize with the position of law professors in their lonely redoubt come grade time. But yet I am on the other side.

Twelfth Night

Today is dia de los Reyos, the Feast of the Epiphany, or Twelfth Night. In the Christian tradition, we put away the Christmas decorations and get back to work. But it's not business as usual. When the Magi decided it was time to go back to work, "they returned to their country by another route." Matthew 2:12.