A Take On Our Profession

..from an observer.  Puts some gloss on our previous post:

At the same time, Columbia is a scrupulously politically correct institution, one that wrings its hands over racial injustice. Back-to-back no-bills in two high-profile police homicides involving white officers and black decedents is a perfect scapegoating opportunity. It allows students and administrators alike to save face by blaming students’ academic difficulties on their exposure to disturbing news stories rather than on the intractable awfulness of Ivy League law and its practitioners. It allows them to avoid stating the awful truths that their institution is a crazymaking racket, that the study and practice of law drives people out of their minds, that the law has been overrun by high-hat aristocrats and cutthroat social climbers, that equity has been purged from the system and they don’t know what to do about it, that the whole goddamn thing is pervasively fucked up but they don’t see any alternatives to trying to make a go of it.

It all relates to a recent flap about Columbia Law School doing something or other about exams due to the trauma caused to their students by the Ferguson and Eric Garner episodes.  Judge Kopf had his standard breezy and dismissive take on it all here, for example.  In this case probably appropriate, but then who am I to second guess Columbia Law School?

It doesn’t help matters to punt.

I am reminded of a quote from Scalia that I’ll look up later*, to the effect that there are limits to the resources a society can devote to criminal justice and so, you know, finality.  I’ve pondered that quite a bit.  Seventy-five years ago, I think, such a statement coming from a Supreme Court Justice would have been seen as not just wrong but monstrous.  And the simple reason is this:  it’s an inversion of the truth.  Economic considerations do not constrain the law; the law constrains economic considerations.  If we don’t realize that as a society we are become barbaric, as they say.

But when lawyers and judges and even Supreme Court Justices don’t realize it we are doomed.

I have to disagree with Andrew a little:  it’s not difficult to figure out what to do about our fucked up profession.  It’s just difficult to actually do it.


That wasn’t hard, so I just looked it up more or less now.  From Bousley v. United States, 523 US 614 (1998):

It would be marvellously inspiring to be able to boast that we have a criminal-justice system in which a claim of “actual innocence” will always be heard, no matter how late it is brought forward, and no matter how much the failure to bring it forward at the proper time is the defendant’s own fault. But of course we do not have such a system, and no society unwilling to devote unlimited resources to repetitive criminal litigation ever could. The “actual innocence” exception this Court has invoked to overcome inexcusable procedural default in cases decided by a jury “seeks to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case.” Schlup, 513 U.S., at 324. Since the balance struck there simply does not obtain in the guilty-plea context, today’s decision is not a logical extension of Schlup, and it is a grave mistake. For these reasons, I respectfully dissent.

By way of a little explanation, there is a fairly recent doctrine in federal habeas corpus law that a claim of “actual innocence” will clear a bunch of hurdles that would otherwise bar relief, most recently the rather onerous hurdle of a one year “statute of limitations” (See McQuiggin v. Perkins).  But actual innocence has not been ruled to be a “stand alone” ground for relief; at this point, it just clears some debris so that a constitutional violation will be considered and summarily denied – just kidding, they will grant one in a thousand or so.

But on the other hand, it has never been held that actual innocence is not a stand alone ground, either.  Because embarrassing.  Legal doctrine speaking, we are in actual innocence limbo in federal habeas corpus law.

Scalia’s point is that we’re no more likely to get it right later than we were the first time.  And that’s probably true much of the time.  But it’s also completely beside the point, because no one’s going to do anything unless we pretty much know that we got it wrong the first time, so the whole subject under discussion is those times, not the other times Scalia is talking about.  Agnosticism about what is true or isn’t true is fine where we in fact (dare I say truly?) don’t know; but where we do know it’s dishonest.  Or obstinate.  Or stupid.  I mean, take your pick but none of the alternatives are good.




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8 responses to “A Take On Our Profession

  1. HonestAbe

    Although I believe that the legal profession should be strictly for those who feel a sense of passion rather than greed, educational institutions should not only teach why laws were made but mentor students on the pitfalls of the profession and the injustice in the system. Unfortunately, I met many professors who are merely coasting through life, reciting their babble year in and year out, and scooting students to their next class. I doubt much has changed but with proper guidance, perhaps students would be motivated to rise above the misfortunes of life with the enthusiasm and perseverance needed to help others. Sadly, I have little hope as universities have followed corporations who are only interested in production with the highest profit margins.

    Liked by 1 person

    • Hello, Abe.

      Passion has its place. Sometimes it’s useful and it helps.

      But the main problem I see with the profession is how poor and shallow and politicized the reasoning is. People think lawyers reason well but it’s generally not true. Even if they could at one time, the practice of law tends to beat it out of them.

      In practice it has been a power worshiping profession, rigidly hierarchical where the more powerful prevail over the less, and any “reasoning” employed is a thin veneer over a bluntly unfair reality. The most ludicrous “argument” employed by the government or bank or insurance company will win out over the most cogent and well supported arguments of their challengers.

      With almost all judges, anyway. Juries are another matter, and that’s why we have them.


    • Spot on.

      This is one of the reasons that John Yoo secured an appointment to the law faculty at Berkeley. I can’t remember where I read this, but I saw what looked like a reputable account that when his appointment was proposed, the faculty were stunned: they were being asked to bring a deranged apologist for torture and despotism into their ranks as an academic peer so that he could teach his solipsistic, unconstitutional nonsense to law students. Whoever proposed Yoo’s nomination countered to the effect that legal scholarship shouldn’t be constrained by what the law actually is since doing so would hinder scholars’ efforts to explore what the law should be. Some kind of scummy guilt trip or influence-peddling scheme was successfully run on the faculty to convince them that bringing Yoo into their fold would be a win for academic freedom or a prestige boost for the school or something of the sort, not a craven concession to a morally bankrupt extremist courtier who had just pensioned out of the Bush administration.

      Yoo was awarded an endowed faculty chair earlier this year.

      I’m afraid you’re right on balance about the universities, too. As an undergraduate at Dickinson College, I got to watch the president at the time, Bill Durden, graft a kickback racket worthy of Tammany Hall or Joel Osteen onto a host institution that for the most part had rigorous academics, excellent instruction, and sound faculty ethics. The crassness of the things Durden said in public speeches to students by way of guilting us into giving our already very well-funded institution more money was absolutely epic. A big part of it involved constructing a practically bogus history of the college’s founder, Benjamin Rush, a secular hagiography, really, which omitted any reference to Rush’s bizarre medical beliefs, including ones about the digestive tract for which he was publicly accused of quackery at the time. Durden cherrypicked the historical record about Rush in order to exclude embarrassments that were featured in fora as public as the Ken Burns documentary on the Lewis and Clark expedition. He just had to bring Rush into the fray for fundraising purposes, but he couldn’t countenance the historical fact that our alma mater was founded by a guy who was all about the mercury laxatives.

      That’s just one maudlin window into a very corrupt academy. Several valleys away from Dickinson, there’s the much worse institutional corruption nightmare involving Paterno, Sandusky, and the Penn State football program. Paterno effectively ran the main campus at State College until a couple of months before his death, and he is survived by a student and alumni mob with a history of overturning satellite news trucks during riots. Thank God Dickinson athletics are low-stakes and nobody gives enough of a damn about the Red Devils to throw a riot.

      You’re right. Academia is in a bad spot.


  2. Professors tenure is tendered by the powers that be and being careful not to shake up the status quo. After all, it is lawyers who transit the endow(s) that gives everyone above, more to chatter/ batter about.

    Professor LoPucki at UCLA wrote a totally candid book on “Courting Failure” Corruption of Bankruptcy Courts and “Routine Illegality”.

    He’s no longer at Harvard!


  3. At least Scalia was part of a two-justice dissent in Bousley. But that language: “I respectfully dissent.” What it really means, in the real world where such a ruling would be enforced if it were the majority opinion, is, “I respectfully refuse to give a shit about the provable fact that you did not menace anyone with that gun.” This would be a huge fuck-you to inmates who were doing their level best to lawfully obtain relief through a system that had already done them wrong. At some point, capricious adverse rulings become the stuff of prison riots: “We respectfully defenestrate the warden and watch commander and burn down the guard towers.”

    Plenty of convicts with stronger appellate cases than Kenneth Bousley’s get terminally screwed over by the courts. There’s despair and anger in the prisons, roughly in inverse proportion to the equity of the courts, and American prisons are often in a state of ramshackle disorder under the supervision of psychopathic guards.

    We’re overdue for another Attica riot. American prisons are already violent. A slight shift in the institutional calculus might convince the inmates that rioting would be a more worthwhile way to have their violence than the status quo of rape, freelance battery, attacks at the hands of guards, and racial gang terrorism.


  4. Re: knowing what’s fucked up about the law vs. taking action to reform it: I have to assume that people who have indentured themselves to an Ivy League law racket that costs over $62,000 per year before room and board would find it less embarrassing to plead ignorance than to admit to their own impotence or cravenness. “Yeah, I kinda knew it was a racket, but I thought I could hack it….” That’s embarrassing enough as a freestyle rap verse; as an unabashed admission of having gotten too deep into an academic and professional pump-and-dump scam, and to have done so as one of the callow marks, is mortifying. It’s bad juju in a bright-side society.

    This is why it’s in the interest of the law schools to insinuate that disgruntled law student and alumni muckraker bloggers, or Paul Campos for that matter, are gauche and foul-tempered. It’s a lot less dangerous for them to appeal to decorum and feelings than to debate their critics on the merits of their arguments. Even when a law school gets egg on its face for coddling its students, as Columbia has, it at least isn’t being directly challenged for charging them twenty percent more than the national median household income per academic year. Law schools don’t want to be forced to reform themselves, and even ridiculous concessions to the student body serve to sandbag reform efforts.


  5. As counselor stipulated – it’s a money, power – might makes right world! Has been that way – will always be. If you dare to question such, your BAR Card status will be yanked and tanked.


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