Why I hate "The Law"

A friend recently wrote me and said, "I'm really disappointed by how much you have hated your education in law. Do you think you would have been happier elsewhere, or is it law in general?"

This was my response:

It's law in general. To be precise, it is the practice of law in the United States. I could rant about it all day, there are a few main points:

1. The work is generally distasteful. You have to be a jerk to be a good lawyer. Believe it or not, I don't really like being mean to people.

2. Law is essentially political. We don't want to believe it, but Scalia votes the way he does on the Supreme Court because he is politically conservative, not because there are actual doctrines of law that support his positions. We are more used to that on the Supreme Court, but it is true of every court in this country from Federal Appeals Courts to state trial courts.

3. Related to number 2, Courts have far, far too much power in our legal system. This is a deep philosophical difference that I have with the legal system. In France and Germany, there are national civil codes that spell out the law and which the courts are bound to enforce. Here there are no such codes, and the courts are empowered to make up the law as they see fit. Yes, we have statutes, but it is different, and it is surprisingly often the case that a court will interpret a statute in a manner that flatly contradicts the terms of the statute. That just debases the whole system. The system is based on this belief that when an appeals court says something, no matter how absurd, no matter how ridiculous, no matter how contrary to common sense and reason, that whatever the court said is in fact law. I really think that debases us--it makes us less human and destroys our dignity. Ahh, but I've started to rant.

4. The legal system is amoral. There is a famous quote from Oliver Wendell Holmes, Jr. OWH is probably the most famous justice to sit on the Supreme Court in the 20th century, and I have an immense respect for him (not that he was always correct, however). He is one of the reasons I went to law school. He has been quoted as saying that law is not about justice. I seem to have seen the quote differently, but wikiquote puts it as "This is a court of law, young man, not a court of justice." The whole system is amoral.

The consequence of that is that it places all lawyers and legal actors on the same level. The man who defends the tobacco company has the same moral worth as the man who helps the wrongfully convicted. The man who works to keep detainees in Guantanamo indefinitely or who works to justify the use of torture is morally equivalent to the person who works to protect a detainee's right to habeas corpus or to ban the use of torture. Again, I just can't accept that. It debases us.

To put it another way, if law is not about justice, then there can be no justice in law.

5. The system is entrenched. It is not going to change. I went to a Flaming Lips concert last September. At one point, the lead singer Wayne Coyne said, "Songs aren't a good way to protest. What's a song going to do against a war? It's like throwing a popsicle into a volcano." Practicing law within the system and hoping that it will change is the same thing. It's like throwing a popsicle into a volcano. The fact of the matter is that the law is not designed to function for you, your family, and your friends. It's designed to function for two groups: large corporations and large law firms. The interests that corporations have is obvious, but people rarely realize that large law firms have a strong interest in ensuring that "the law" is confusing, obscure, and difficult to navigate. After all, if it were easy, they wouldn't have any clients.

So, in all, I can't bring myself to want to work in an amoral, unjust, political, distasteful, and entrenched system. If you want further proof, take a day off and go down to your local courthouse -- a state courthouse. Most of the litigation done in this country happens in a state courthouse. Tell me if you see anyone having a good time. You won't. Nothing good ever happens at a courthouse. There are three reasons people go to court: 1) you are severely injured and suing someone; 2) you have severely injured someone and are being sued; 3) you are facing jail time. Those three reasons will cover probably 90% of cases.

What about that could possibly be attractive?

Anyway, so, more of a rant and much longer than I wanted it to be. But let me finish by saying that the "education" aspect of a "legal education" is wildly overblown. As I have probably told you before, law school is not premised on the existence of a body of knowledge which the student is expected to learn. Law school is a gatekeeper to the profession, and that's it. In order to practice law, you need a J.D. Whether you learn anything is completely beside the point.

Bong Hits 4 Law

I have to say that I love the idea that future law students will be pouring over the Supreme Court's decision in the Bong Hits 4 Jesus case. Gotta love living in Our Modern Times.

Morris Dees

Morris Dees came to UT on Thursday and gave a brief speech about Justice. Mr. Dees is one of the co-founders of the Southern Poverty Law Center and it's chief trial strategist. He said he was primarily interested in making the rule of law real for everyone, and he argued that it is important that lawyers stand up to represent the people who are likely to be most endangered by public opinion. He specifically referenced the people we are holding in Guantanamo Bay

Then he said that he thought when future historians would look back on the upcoming generation of lawyers--you and me--that they would call us one of the greatest generations of lawyers because we will have shepherded our country through our current problems while also helping to ensure that our country lived up to its promises to the most vulnerable members of our society.

He almost convinced me.

But I can't see how his hope is based in reality. When I walk around the halls of UT Law, I don't see people who are concerned about Justice. For every person who has even a shred of interest in serving the public and maintaining the rule of law, I see at least 10 who will care if the price is right. I see 10 who will never care so long as their party stays in power. And I see another ten who will never care about Justice no matter the conditions attached.

I have a hard time shaking the belief that were President Bush to refuse to step down in January, 2008, or were he to start infringing our most clear and basic rights, that about 20% of the lawyers in this country would without question stand up and support him. Another 20% would stand up and rebel. The remaining 60% would wait to see which side could write the bigger checks.

Mr. Dees speech alone begs the question of how we can have the rule of law when any position is defensible. I mean only to say that when lawyers are willing to defend both sides of every issue, then it is a draw, a wash, to say that lawyers are protecting the rule of law in this country. So long as smart, intelligent, and well connected lawyers are arguing that the president has unfettered power under the Constitution, we cannot honestly argue that the legal profession as a whole is helping to maintain the rule of law.

Why Demand Apologies?

I was reading the Talking Points Memo by Josh Marshall this morning, and apparently some Republican State Representatives sent out letters stating the "‘secular evolution science’ is the Big-Bang 15-billion-year alternate ‘creation scenario’ of the Pharisee Religion." Of course Marshall goes on to mention how the ADL found out about the letters and the State Representatives apologized or something.

My question is this: Why demand apologies? What is the efficacy of that?
Rather than demand an apology, just use idiotic statements like this against those people in an election. Seriously, that statement about the Pharisee religion doesn't even make sense, and surely someone who believed that shouldn't appeal to all the voters of their district. So rather than get an apology, wouldn't it be better to just to beat them over the head with it next election? To some extent apology demands legitimate the person who made the offensive comments. Apology demands are like saying "Well, recognizing your worth as a person, I know you didn't meant to say what you said, so apologize for it and we can all get along."

Well, frankly, I don't recognize the worth of a person who says something as offensive, ignorant, and theologically wrong as calling science the "Pharisee Religion". I don't want an apology because I don't recognize that idea that people who say things like that have a valid place in political discourse. They should be forced to wallow in their stupidity and steadily pushed from the mainstream of American politics.

This all relates to to the Tim Hardaway business somehow, but I am not sure how yet.

Another Possible Amendment

"The President's power as commander in chief is limited to only the strategy, tactics, and methods of the military when in the field as part of a legitimate use of force under this constitution."

Also, it seems most of these amendments are things designed to reign in the power of the president.

Oh yeah, this should be up here as well

"a man's admiration for absolute government is proportionate to the contempt he feels for those around him" -- Tocqueville

Our Broken Constitution

Here is the list, some better written than others, of the changes, to the Constitution, that would improve our government:

-The President shall not use the military force of the United States, except when so authorized by Congress, or in order to repel an armed attack. Any unauthorized use of the military force shall be a high crime subject to impeachment upon motion of 1/4 of the House of Representatives.

-Give Congress the ability to remove cabinet level officers with simple votes of no confidence

-An amendment similar to the provision in the German Basic Law requiring party democracy

-A Congressional power to end war

-Repeal of the Direct Election of Senators, and specification that Senators MUST represent their state governments through appointment by state executives.

-Ending Pocket Vetoes

-Ending Recess Appointments

-Veto Overrides occur through a cumulative 60 percent vote of a joint session of Congress

-Update Congressional Domestic powers to reflect the era in which we live, meaning adjusting the language of Congressional powers such that Congress has the broad power to regulate the economy.

-abandon the electoral college

Other not very well thought out amendments we have discussed:

-Amending the Powers of the president such that the president is not the sole voice of the nation in foreign affairs

-Overturning Buckley v. Valeo

-Limiting the power of the Senate

-Proportional representation in Congress

-requiring Cabinet positions be held by the chairpersons of the respective Senate committees.

Other Changes that would not technically require a constitutional amendment:

-Increasing the size of the House of Representatives


What else have we come up with? Also, we should spend some time fleshing these out more.