Outside Counsel

The results of the New York bar exam from February have just been released: there was an overall pass rate of 48 percent, a decrease of two percentage points from last February's exam; the pass rate for first-time test-takers from American Bar Association-approved law schools was 76 percent, a 4.5 percentage point decrease from last year. Poor bastards, all of them, the passed and the failed.

For reasons that don't bear going into here I have recently been giving some thought to the whole bar exam thing. There are some states that waive the requirement if you graduate for an in-state law school, or at least there used to be: in Iowa they'd charter a bus from the commencement exercises to take the freshly minted lawyers over to the capital for swearing in. I'm not so sure that is necessarily how I would do things if I were King of the Lawyers. It seems to me that there is a value in requiring prospective lawyers to survey the entire law of a jurisdiction, at least once, and law school does not fill this need. People complain a great deal about the things that law school does not do, of course. It doesn't much prepare you to practice, and it doesn't prepare you to take the bar exam, and I'm sure there are plenty of other things it doesn't do. Law school is mostly useful for three things, I'd say. It trains you to think the way a lawyer thinks ("sharpens the mind by narrowing it" as Edmund Burke quipped); it gives people who don't know what they want to do when they grow up an expensive place to sit for three years; and it makes money for the university. All of these are fine things, especially the first, but there should be some sort of barrier to entry, and making that barrier proof that you have at least heard of the stuff you will be doing for the rest of your career seems reasonable to me.

College sports are so crooked they can't even get the easy sports right. Track, crew, fencing-- how could these things be as corrupt as hoops or football? Incredibly, schools manage this, by counting women wrong.

"Universities must demonstrate compliance with Title IX in at least one of three ways: by showing that the number of female athletes is in proportion to overall female enrollment, by demonstrating a history of expanding opportunities for women, or by proving that they are meeting the athletic interests and abilities of their female students." The problem is that D I football programs are big-- 100 students on the University of South Florida roster-- so the women's programs have to be big too, particularly because there are typically more women than men in most colleges and universities. In order to get their numbers up women runners are counted on both Cross Country and Track, and  women’s coaches are told to accept walk-ons  although this is discouraged or prohibited on men's teams.

There are, I am sure, a lot of sportswriters and other geniuses who will tell you that this is a Title IX problem. It is not. It is a problem with collegiate athletics, or, more accurately, a problem with where the emphasis is placed in college athletics. Colleges athletics should be, first and foremost, something that college students  participate in, either as athletes (ideally) or as fans. I'm not suggesting that anyone who walks on the court should be allowed to play matches as a member of the tennis team-- sport is about competition, after all, and merit should be what determines who plays and who starts. But if your athletics budget is so screwed up that you can't field a football team unless you count the men who practice with the women's fencing team as participants in women's athletics than maybe you should rethink how you are spending the money in your athletics budget.

I'm shouting at the ocean, I know, but c'mon. Wouldn't it make sense for a university-- even the University of South Florida, whatever the hell that is, to be a little more aware of what its mission is supposed to be?

Norman Mailer's townhouse in Brooklyn Heights is on the block, as are its contents. It isn't clear to me if this includes the City of the Future he built out of Legos (it is on the cover of "Cannibals & Christians"). That's a scale model of the United Nations building down in the left corner. Truman Capote's old townhouse is around the corner, on Willow Street, and although it is ritzier than Norman's house, I prefer Mailer's, especially if the Legos come with it.

Thoughtful post from Paul Campos about what I'm coming to think of as the problem of Peak Law School. Fewer and fewer law school graduates are finding law related jobs, and more and more of the jobs that they are finding are low-paying and unsatisfying. Veterans of our glamor profession will tell you that this is nothing new, and they may be right-- I know for a fact that I had classmates who were never able to find legal jobs-- but I think the scale of the thing has turned it into something else. I have said in the past that if I were made king of legal education in the United States the first thing I would do would be to decree that no-one could enter law school immediately following the completion of their undergraduate degree. Get some sort of job, for a year or three, then come back.

I also think it is past time for the profession to rein in the number of law schools that are out there. It isn't fair to treat students like marks, and there are far too many universities that seem to be proceeding under the notion that anyone who wants to should be entitled to spend deep into the six figures in order to live the law school dream.

...and speaking of the new federal courthouse, there is also the question of whose name should be honored at its dedication. To my way of thinking it should either be named for Robert H. Jackson, the only Supreme Court Justice from Western New York (and the chief United States prosecutor at the Nuremberg Trials), or Judge John Curtin. There is some talk of naming it in honor of military veterans, but I say the hell with that. Vets can have monuments and stadiums named after them. Courthouses should be named for people in the justice business, not the war racket, and although I think that the narrative of American jurisprudence over-exalts judges somewhat both Jackson and Curtin deserve the honor. Ironically, the reason neither is likely to receive it turns on race. William Rehnquist clerked for Jackson at the time Brown v. Board of Education was before the Court, and wrote a memorandum recommending that the Court adhere to Plessy v. Ferguson. During his confirmation hearing Rehnquist attributed the views in his memo to Jackson, although Jackson did not end up voting that way. Since he was dead he could not defend himself from the accusation. Curtin, on the other hand, ordered and supervised desertification of the Buffalo schools, which still pisses some people off.

Michael Chabon on "The Phantom Tollbooth". There are few books I love as much.

I drive by the new federal courthouse twice a day, and every time I do I wonder what went wrong. Its design was supposed to feature a mirrored glass curtain wall, which would have nicely complemented Niagara Square, but what we have instead is green tinted glass which is completely transparent. What that means is that as you approach the building from the north you see that there is a lot of blank wall, with an irregular pattern of windows. The aesthetic purpose of the glass curtain wall is completely lost.

It is actually worse on the front side: from the street you can see right into what I assume is going to be some sort of large common area on each floor. There is some reflection of Niagara Square here, which was the effect that we were told we'd be getting, but not much, and nothing like what was described. Worse, once the building is in use this is going to look cluttered.

There has been some media coverage concerning construction problems, but for the most part this has been limited to discussion about delay, and stories about mold. The delay was largely attributable, as I understand it, to materials shortages: federal courthouses have to be constructed from special double-reenforced steel beams so that white Christians (or other people I guess) can't blow them up. Fair enough, but doesn't a completely transparent front like this suggest potential security problems?

It's a pity. I am sure that the courtrooms and other appointments will be great-- federal court judges have tastes like Medicis, and they should. Courthouses and courtrooms should be impressive, to reflect the important work that goes on in them. Unfortunately the atmosphere of security that now pervades nearly every aspect of interaction with the federal government will prevent most people from seeing the inside of the building-- regular people will go by and what they will see will be this failed exterior. I wish we knew what happened here.

Couple of quick thoughts on sports.

Last night's Sabres-Flyers game was great stuff, but I'm left wondering if Lindy Ruff's game plan is "You guys skate around and try to score. Ryan, you're going to have to be on fire and stop everything." It's worked for Lindy before-- it's gotten him to Game Six of the finals before, but it doesn't impress me as the surest strategy. (Also, I love that the Flyers are whining about rough play and penalties. Words fail me.)

It is probably moot, because we are probably not going to have an NFL season, but I'll be disappointed if the Bills take a quarterback in the draft. Jon Gruden seems to think there is a lot of talent available at the position, which probably means that there are a lot of people in the league that think that too. The NFL is a very "nobody ever got fired for buying IBM" sort of place, and taking a QB often looks like a good move. Typically a rookie QB isn't going to start for a while, so you have time to see if the pick works out, and if it doesn't you'll be out the door and off down the road anyway. It seems to me that the Bills would be better off trying to fill a few other holes, and I'd like to see them draft for defense. Ryan Fitzpatrick is an NFL quarterback, and if it isn't called upon to score 36 points in a game this is an offense that can win. Would Cam Newton make a difference? I'm inclined to think that any NFL team would spend a season or two changing the way he plays to fit the more conservative NFL style, and that then he'd spend two or three seasons being the player that masks the things that are actually his team's weaknesses.

The Mets. The Mets. This is going to be a comically bad-- maybe cosmically bad-- Mets season. A bad divorce has lead to the league taking over the Dodgers-- being tied to the biggest financial fraud in history can't be making Mets' ownership feel too good about their prospects. That said, as a life-long Mets fan, if they can't be great the next most entertaining thing is for them to be spectacularly awful. It takes the anxiety out of it, and makes watching them the opposite of watching the Sabres.

Great story about the New York sessions for "Blood on the Tracks".

A puff of white smoke, a decision. LCA will be attending Smith in the fall. Somewhere I am I sure there is another school that would suit these daughters; perhaps there are several. For now Smith is what works, and I am pleased with this outcome and delighted that the process is over.

Bryn Mawr didn't go down without a fight, and until we went I was sure it was going to be the pick. The Admissions office did an outstanding job of promoting the school, and courting LCA, starting with a personal, handwritten note from the Director of Admissions included with her acceptance letter. The note, which referenced LCA's essay, was a great touch, as was the button, also in the admission package, that said "Bryn Mawr Class 0f 2015". Later they sent a coin, with "Bryn Mawr" on one side and "Bryn Mawr Class of 2015" on the other. This weekend we visited, and they had a well-organized program along with tours that showcased the pretty jewel box of a campus.

What swayed her? I'm not sure. Both A and I would have been fine with Bryn Mawr (although I think A was quietly rooting for Smith all along). On the drive back I found myself musing over the fact that none of the faculty, staff or students were quite as aggressive about the idea of Bryn Mawr as a women's college as the people we've met at other Seven Sisters schools. In my experience if you ask a Smithy if she is a feminist you will be told "Hell yeah!", or perhaps the response will be even more assertive. At Bryn Mawr they seemed to me to shy away a bit from the word, even though they clearly embrace the ideals, and this troubled me. It might have something to do with the school's Quaker heritage, with its reluctance to be confrontational, but the way I figure it the faculty, staff and students at a place like Messiah College wouldn't be bashful about telling you what they believe. I want the institutions that are on the right side to be every bit as unabashed.

Beautiful campus though, academics that impressed me, and I wouldn't have minded the excuse for an occasional trip to Philly.

This Saturday is Record Store Day, and it looks like I will mark the occasion at Gold Million Records. Our image today comes from this site. When I was an undergraduate my first trip to Buffalo included a visit to an East Side institution called Ruda's Records, which I was told had "everything". They did not have what I was looking for-- it seemed they mostly had polka records. I doubt that Billups would have had anything I'd have wanted in 1975 either, callow youth that I was. I wonder when it closed?

Buffalo ought to have a restaurant that can provide us with themed sandwiches. In New York Katz's is serving a sandwich called the Rangers Hat-Trick through the duration of the Broadway Blueshirts playoff run: pastrami, corned beef and brisket on rye. What would a Sabres sandwich be? I'd vote for some variation on beef on weck, perhaps along the lines of the version produced by the Blue Monk. The problem is that most variations of beef on weck amount to lily-painting (although I suppose that's what a $20 buck pastrami, corned beef and brisket sandwich is as well).

Paul Ceglia, the guy from Wellsville who says he owns Facebook has a new lawyer. He was being represented by Terry Connors, not exactly someone I'd describe as a "small-town upstate New York lawyer"-- around here Terry is kind of a big deal. Still, DLA Piper is a big deal too. When this matter was last heard from the local federal district court had declined to remand the case to state court. Now DLA Piper has commenced a new action in federal court. I remain skeptical-- merely retaining big deal lawyers doesn't have a great deal of persuasive effect with me-- but I'd love to know what's going on behind the scenes.

UPDATE: The Buffalo News reports that Dennis Vacco is part of Ceglia's team. This does nothing to persuade me.

Further to the Dylan discussion below, I feel as though Maureen Dowd's column yesterday ought to be rebutted. Dowd thinks that Dylan should have played some protest music in China. Like many people Dowd is locked into a Bob Dylan that hasn't existed since the sixties.

The other night LCA had a friend over for dinner and I mentioned that back when I went to school one of the ways you could gauge a prospective roommate was to look at the person's record collection. Those days are long gone, although it bears mentioning that CLA once had a roommate whose iPod held only Steely Dan songs. What do you suppose is in Maureen Dowd's record collection? I'll bet she has Barbra Streisand's soundtrack from "A Star is Born", and Neil Diamond's "Hot August Night". She probably has some sort of Beatles' Greatest Hits collection, but it is probably one that is mostly Paul. She has the soundtrack to the movie "Grease". I'll bet you a nickel-- one of the nice new Lewis and Clark nickels-- that she has no Bob Dylan. None. She doesn't have "Freewheeling" or "John Wesley Harding". She doesn't have "The Basement Tapes" or "Planet Waves". She probably dated a guy who had "Biograph" once, long ago, but when they broke up he took it back. She's never heard "Love and Theft", or seen a copy of "Together Through Life".

She might have a Joan Baez album, and if she does it is "Diamonds and Rust". I'll bet that "Biograph" boyfriend bought it for her, and she hasn't played it in 30 years.

Maureen Dowd is the worst kind of square, is what I'm saying-- the kind that thinks she's "hep". This makes sense, because she is also the worst type of political columnist, too-- the kind that thinks that she's got it all figured out, and what do you know? If everyone were like Maureen Dowd wouldn't it be a marvelous world?

One of the perks, if you care to call it that, of being adjunct faculty, is that I'm on the mailing list of the Director of the Teaching & Learning Center. There are a number of interesting looking workshops and lectures and programs that I would go to if being a faculty member were my actual job, and sometimes he passes along a link to an interesting article. The other day we got a piece from the Chronicle of Higher Education by Thomas H. Benton about "why students (and, to a lesser extent, their parents) are not making choices that support educational success." I've been thinking about this very thing because I am vexed by about half of my undergrads this term. Half are a challenge to engage, but are getting there. The other half have not engaged at all, and at this point I do not expect them to. Benton sees the problem as having several parts.

-- "[I]n the past few generations, the imagery and rhetoric of academic marketing have cultivated a belief that college will be, if not decadent, at least primarily recreational: social activities, sporting events, and travel. Along the way, there may be some elective cultural enrichment and surely some preprofessional training and internships, the result of which will be access to middle-class careers."

I am not so sure I am seeing this in my students, but I have certainly seen it in the children of people I know. There's a guy who has just written a book which validates this. "Crazy U: One Dad's Crash Course on Getting His Kid Into College", by Andrew Ferguson has been getting a lot of play. In a key anecdote Ferguson reports approvingly that his son told his guidance counselor, "I want to go to a school where I can go to a football game, take off my shirt, paint my chest in the school colors and major in beer." Dude, that's not helpful.

-- "A generational shift is taking place in which longer forms of writing are being replaced with shorter ones, and sustained thought with shallower forms of multitasking. Those skills have value, but a growing percentage of students are arriving at college without ever having written a research paper, read a novel, or taken an essay examination."

I think this is true, and I think it is part of my responsibility to work with my students on writing. I think they find this intimidating (see below).

-- "Students increasingly are pressured to go to college not because they want to learn (much less become prepared for the duties of citizenship), but because they and their parents believe—perhaps rightly—that not going will exclude them from middle-class jobs. At the same time, much of the academic program, particularly general education, seems disconnected from the practical skills needed to secure those jobs. In order to maintain that Potemkin Village, faculty members and students have entered into a 'disengagement compact,' in which they place fewer demands on each other so that other interests—research for the professor and social activities for the students—can be pursued with fewer distractions."

This is part of what the program through which my undergrad class is offered is supposed to address. It would be nice if it works, but I'll never know.

-- "Many students cannot imagine going to speak with a professor in his or her office. At most universities, a student is likely to be unknown to the professor and would expect to feel like a nuisance, a distraction from more important work."

I can understand this, because it was something I had a hard time with too. I have a standing offer with my students: if you would like to submit a draft of your paper, I will review it and make suggestions, without prejudice to your ultimate grade. I had professors who would do this, and I never once took them up on it. This term I think I have one or two students who will, and if they do that will be my chief accomplishment with this group.

-- "As academic expectations have decreased, social programming and extracurricular activities have expanded to fill more than the available time. That is particularly the case for residential students, for whom the possibility of social isolation is a source of great anxiety."

I dunno about this, but I can understand it.

-- "In order to reduce borrowing, more and more students leave class early or arrive late or neglect assignments, because they are working to provide money for tuition or living expenses. It is also true that many students are working longer hours in order to afford social activities, cars, and consumer goods, and shortchanging their education as a result. Whatever the reason, more students are coming to classes exhausted and distracted by concerns about money, coupled with greater anxiety about whether their future earnings will compensate for the cost of their education."

I think this is probably very true at some schools. I don't know if it is at mine.

-- "[I]t is hard for a young person to understand that higher-order thinking skills—those most needed in a turbulent job market—can come from courses that are not obviously job-related: Shakespeare can be more useful, in the long term, than a course about last year's software. Students may be receptive to that possibility—and to the chance of studying something that truly interests them—but uncertainties about the future have ushered in an era of grim pragmatism and short-term planning."

I doubt that this is anything new.

-- "A lot of students have worked extraordinarily hard to get into the "right" kind of college, only to wonder what all the hype was about. The common experience is that getting admitted is the most exhausting part. After that, the struggle mainly is financial. But at the major universities, most professors are too busy to care about individual students, and it is easy to become lost amid a sea of equally disenchanted undergraduates looking for some kind of purpose—and not finding it."

I'm sure this is true, just based on my own kids and their friends. Notwithstanding the fact that it is the flagship institution of the State University of New York, for some of my students UB was a letdown, and they come to class with a chip on their shoulders as a result. I'm not sure there is much I can do about that.

I have written before about words that have lost their meanings-- or had their meanings flip to the opposite of what they used to be. Ben Yagoda points out a few more: disinterested, nonplussed, momentarily, and presently.

The 70's are pretty generally regarded as a peak moment in movie making, and it is not hard to see why when you run down the movies on these lists of the best of 1972. Holy crow, Andrew Sarris (generally my favorite critic) doesn't even have "The Godfather" in his top 16. I'm surprised by how many of these I haven't seen, and I suppose a visit to my Netflix queue is now in order. "Travels With My Aunt"-- in many ways an oddity in Graham Greene's oevre, although a novel that I really like-- is not available on dvd. It sounds like it might be a bit of a mess. "Slaughter-House Five" is a mess too, as I recall, but why wouldn't it be? I used to not like the novel, but now I think it may be the greatest WWII novel of all time, with all due respect to Norman Mailer. Sarris' list seems very auteur theory driven-- there are a lot of great directors, but the movies by them seem to be "interesting" rather than "wonderful". "Frenzy" is minor Hitchcock, "Avanti" is last gasp Billy Wilder. I've never seen "Duck, You Sucker". I recall liking "The Discrete Charm of the Bourgeoisie", but I haven't been struck by the impulse to see it again. Some of the movies Sarris didn't like as much are notable in retrospect as well: "Play It Again, Sam" is sub-optimal Woody Allen from the period just before his peak, but Peter Bogdanovich's "What's Up Doc?" holds up well, and I wonder why it was overlooked at awards time.

Much of the time-- maybe most of the time-- I'm inclined to go with critics' lists like this rather than looking to the Oscars as a guide to what was notable and excellent in a given year, but the nominees for Best Picture at the 45th Academy Awards don't seem very far off the mark at all: "The Godfather" won, beating "Deliverance", "Cabaret", "Sounder" and "The Emigrants". (Sarris thought "Sounder" and "The Emigrants" were "uninspired". I haven't seen "The Emigrants", but it certainly sounds grim. Depending on how you think of "Sounder" that's three or four pretty good movies on a list of five, which is a better percentage than you might expect. For the sake of argument you could swap "Sounder" out for the Bogdanovich (it wouldn't win, because it is a comedy), and substitute Marcel Ophuls's "The Sorrow and the Pity" for "The Emigrants" (also not a winner, because it isn't Amurican) and have a pretty great list.

I like the idea of a panel about Bob Dylan and the Law more than a lot of what the reality of such a thing consists of. Let's face it, "Hurricane", for all that it rocks along, is not a very sophisticated take on the state of race relations and justice. "The Lonesome Death of Hattie Carroll" isn't really either, but it can at least be said in its defense that "Hattie Carroll" was written by 22 year old at the height of the Civil Rights movement. "Hurricane" is Bob Dylan for people who like protest song Dylan best, but protest song Bob Dylan is, more or less, just Phil Ochs. Nothing wrong with that, but Phil Ochs is a footnote. Dylan grew past that, and pretty quickly. By 1966 he was throwing off lines about the law that are far more insightful. Part of the problem maybe a cramped view of the law. The first rule I set for myself in composing my Lawyers in Movies class was that at least half of the movies we used had to be about something other than criminal law, and Fordham would have done well to have applied a similar approach. The reason Christopher Ricks' "Dylan's Visions of Sin" is an engaging read is because Ricks was not so literal-minded.

I mean, c'mon Fordham, don't be squares. Bob Dylan is, by his own admission, a song and dance man. Give him his due: when the Dylan mood is upon you, do you play "Hurricane"? Or "Hattie Carroll"? Or, heaven help us, "Silvio"? Surely not. How much better would this discussion have been if someone had talked about "All Along the Watchtower" as a metaphorical analysis of the relationship between artists and their intellectual property? And damnit, why do discussions about Dylan always seem to overlook his later work? (Except for "Hurricane", I guess, a song from the 70's that was a throwback to 1964, and which is, in any event, 36 years old.)

It would not be hard to do a better panel about Dylan and the law is what I'm saying.

Via The Volokh Conspiracy, every Harvard Law School exam, from 1871 to 1998. Interesting for several reasons, although a bit tough to navigate. I'll be teaching the Harvard Law movies in a couple of weeks, and I've been thinking lately about how law school (or bar exam) questions are structured.

Sunday LCA had to do some work at the UB Library, so I took her out there. This goose was sitting in the middle of the quad between Capen, Norton and O'Brian, at the top of Flint Loop. I see by this handy map that this location is known as Founder's Plaza. It had a friend with it Sunday morning-- perhaps its mate. It was still there yesterday afternoon when I arrived for class, and when I left, and it seems safe to assume that this bird has decided that it is by g-d going to nest in this spot. You'd have to look pretty hard to find a stupider place on campus for a goose to do this. The UB campus is set-up with clusters of buildings surrounded by parking lots nestled into a large expanse of green space that is largely unused and mostly inaccessible. There is a small artificial lake on the other side of the academic spine, and a creek beyond that, but the spot where this goose is squatting is about as far away from water or greenery as it is possible to get. It is still chilly, so a lot of people are still getting around using the various tunnels and elevated walkways that connect this Brutalist vision of a campus, but it is warming up. The women are starting to wear flipflops to class, and the men are starting to wear shorts because the warm weather season here is so short that people pretend it starts earlier than it really does. The goose is sitting about 20 yards from where the UB bus (it is called the Stampede bus these days) discharges passengers. Capen is where the main administration is housed, and the undergraduate library, and some classrooms, including mine. Norton is where the large lecture halls are housed. O'Brian, of course, is the home of the law school. The goose is, in other words, smack dab in the middle of one of the busiest pedestrian areas on campus, a spot that will only be busier in the coming weeks, and is showing no inclination to move. As people walk by it hisses at them, and there are traces of, uhm, goose residue, beginning to accumulate. This could turn into a situation, and I'm wondering how it will play out. Does the university need a permit to roust the goose from its roost? Will it cordon off the area and allow the goose to raise its family in peace? UB is demonstrating its characteristic opacity on the goose, to this point.

Sandwich Mondays.