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William C. Altreuter
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Tuesday, December 21, 2010

Perhaps it is something in the air at this time of year.  The judge at my court appearance the other day was in an expansive mood.  He's a pleasure to appear before any time, but when he feels like talking he's even better.  This time he had a story about trying a white collar criminal case with one of the local legends of the bar, Harold Boreanaz.  Boreanaz had the target defendant, and he'd had a defendant that had been thrown in at the conclusion of the investigation.  The US Attorney had completed the direct examination of the FBI agent who had run the investigation, which had not mentioned the judge's client at all-- they'd connect that up later.  The prosecutor picked up a stack of paper about a foot and a half tall, walked over to defense counsel's table, put it down in front of them and said, "Your honor, let the record reflect that The People have tendered these materials and are in compliance with the Jencks Act."

The judge nodded, and turning to the defense attorneys said, "You may proceed."

Boreanaz whispered to his colleague, "Do you have anything?" and the young Judge __ said, "No, he didn't say anything about my guy."  Boreanaz said, "I need a half hour," so like a good soldier the young Judge __ got up and waltzed the witness around for a while.  After about 20 minutes of nothing much, ("If you are all 'Special Agents' then you really aren't special, are you?") he glanced back at counsel table and Boreanaz nodded.  He sat down, and Boreanaz took about two inches from the stack of documents that d just been tendered and proceeded to work the agent over.  "He just needed to get to a break," the judge said.  "He just needed to get to lunch, and after that he was able to keep the guy on the stand for a day and a half."

I've been doing this long enough to have a story or two like that myself, and what makes them seem so thrilling is that they inevitably seem to hearken back to a time when it seems as though the courts were lit with whale oil lamps.

Over at the Volokh Conspiracy Orin Kerr talks about Herbert Wechsler, and in the comments sometime Outside Counsel visitor C.J. Collucci mentions that Richard Posner said of Weschler that he had a kind of legal career that used to be possible, but isn’t any longer, because it is no longer possible to take the law, as such, as seriously as a discipline as we used to.Kerr responded with a link to an essay on Bernard Melzer, worth reading in its entirety:

"What has happened since the 1960s --that watershed decade in
modern American history -- is the growing apart, especially but not
only at the elite law schools, of the lawyer and the judge on the one
hand and the law professor on the other hand. Law professors used to
identify primarily with the legal profession and secondarily with the
university. The sequence has been reversed. Law professors in that
earlier era were hired after a few years of practice, on the basis of evidence
(heavily weighted by performance as a law student) of possessing
superlative skills of legal analysis. A law professor was expected to
be a superb lawyer and to see his primary role as instructing generations
of law students so that they would become good, and some of
them superb, lawyers -- instructing them by precept but also by example,
by being a role model; and the role was that of a practicing lawyer.
The scholarship that law professors did tended to be either pedagogical,
as in the editing of casebooks, or to be of service to the practicing
bar and the judiciary, as in the writing of legal treatises, articles on
points of law, and contributions to legal reform, exemplified by the
American Law Institute’s restatements of the law. "

Posner goes on to describe how this model evolved into what I think is more or less the present form of legal education, a sort of hybrid formed out of an increasing reliance upon the tools of modern social science (particularly economics) and the Critical Legal Studies movement.

What I think is interesting about these two threads is that they are both a form of nostalgia, and they are both verging ever so slightly on intellectual dishonesty.  Was legal education better in the 40s and 50s?  I doubt it.  The introduction of social science methodology isn't even all that newfangled.  The Brandeis Brief came into being in 1908. On the other hand, there is a certain sense that the practice of law as a so-called 'learned profession" may have fallen away.  I'm not sure where Harold Boreanaz would have placed along the spectrum Posner reminisces about-- I never saw him in action. Even so, it seems to me that it is still possible to have that sort of career, or a career like Weschler, or Meltzer.  I think people are having those sorts of careers, but we may be too close to see it.

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