The Wall Street Journal has a disturbing piece by Radley Balko about the rise of military tactics in domestic US policing. While one can clearly see the need for certain police officers to be trained in these approaches to handle the occasional life-threatening crisis — say, an unfolding attack or a deteriorating hostage situation — there’s something sick about a legal culture that just sort of decadently slouches toward the use of military tactics for serving warrants or securing evidence against civilians, as a matter of expedience, or to reinforce its own psychology of power. What’s worse is the intimidation factor that these practices imply toward the general public. If the legal system needs to increasingly engage in this sort of violence as a matter of course, that seems like prima facie evidence that the system is no longer governing by the kind of consent and consensus that Holmes identified as the prerequisite of a legitimate body of law. Scary.
The New Republic has a withering piece by Noam Scheiber about the meltdown of the American law firm model. I saw a little bit of this first hand when I worked as a paralegal at a couple of the big firms in Midtown before law school — in particular, the incivility toward those of lower (usually chronological, but sometimes credentials-based) status, and the indifference of many of those who seemed to have any clout within the firms. It’s hardly news; these places have been hell for a long time. It’s just that the business model is now failing, and so it’s an economics story. And because (at least for now) there are fewer alternatives for lawyers who are not insane enough to go along for the ride, long term, the protests are louder. I get the competition in law, but the rest of this is just nuts. I mean, how does a profession that is so rooted in the humanities and that has a basic threshold requirement of critical thinking skills ever get to such a point?
Ross Douthat has a piece about the Euro and its impact on poorer members of the Eurozone. And Governor Florio recently had a piece in NJ Spotlight expressing somewhat similar concerns about the socioeconomics of the United States. I don’t know how long free societies can treat so many of their own people so badly without imperiling the stability of their institutions. The West is really living through a great period of political malpractice, as the center-that-hangs-on circles its wagons around a system that is chronically failing its people. Much of the present leadership seems to have missed an important observation by Holmes, which applies as much to the integrity of institutions and property rights as it does to the treatment of criminals:
The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong.
I have a sick feeling in the pit of my stomach many days. How many others do?
I came across this law school research paper by Jeffrey A. Munsie about the history of wine, its European and New World regions, vintage classifications, and how everything is and has been regulated. It’s really interesting.
John Farmer (former New Jersey A.G., 9/11 Commission, Rutgers Law) has an op-ed in the NYT. He’s pushing for a more formal apprenticeship structure to bridge the gap between study and practice. I like the idea. It would be great to have an option, short of joining a firm, that provided a chance to get some relevant, hands-on experience under the guidance of senior lawyers. Traditional clerkships may serve a part of that purpose for prospective litigators or crim lawyers, but where are the corollary opportunities for new attorneys focused on transactional, counseling, and drafting work?
One incredible stat from Dean Farmer’s piece: 99% of defendants in New Jersey landlord-tenant cases don’t have counsel. That’s amazing.
Matt Yglesias has an article on Slate about all that was involved in becoming a one-unit landlord in Washington, D.C. He’s not kidding. I’ve been doing research since last summer for a consulting firm that helps businesses to locate their licensing and regulatory requirements, and it really is incredible to see the layers of bureaucracy that exist in certain jurisdictions.
A reader (who isn’t a lawyer) asks: Why read summaries of unpublished court opinions when they don’t represent applicable law? It’s a good question, and I’ll try my best to tackle it. First, the reader is right: Unpublished opinions have no precedential value in the courts. That means that future courts are never required to follow the holdings of these cases. Second, in New Jersey and many other jurisdictions, it would be a violation of court rules for a lawyer to cite an unpublished opinion even for its persuasive value without explicitly noting that the case was unpublished, and providing copies of the cited opinion and all known contrary unpublished opinions to the court and opposing counsel. In short, the courts strongly discourage litigants from explicitly basing their arguments on the reasoning of unpublished cases. So, why look at these cases? The best answer I can provide is that the cumbersome (and often prohibitive) nature of unpublished opinions in the course of litigation does not mean that the reading and awareness of these decisions is without value.
For a number of reasons, the vast majority of trial court opinions and as-of-right appellate opinions are unpublished. (These include the common recurrence of similar issues, a desire by judges to maintain a manageable and consistent set of controlling precedents, and a desire by judges to make decisions on instant cases without being subjected to eternal, hairsplitting scrutiny.) But in spite of the practical bases for excluding most decisions from precedent, such decisions still do show the law in action. They show general arguments that have prevailed in real cases. And particularly in a narrow subject area, unpublished opinions can offer valuable insight into the reasoning of courts and (sometimes) individual judges. In addition, unpublished opinions shed a great deal of light on the real issues and disputes that are arising within the context of a particular specialty (like land use and zoning) at any given time. So, reading unpublished opinions can be a valuable way to keep up with the changing landscape. Finally, a lot of the unpublished cases are just plain interesting. Because they are not written to be precedent, they often do not involve major legal controversies that would require a great deal of context to be understood. Instead, these decisions tend to focus on the application of well-worn rules to a unique set of facts, and provide insight into the politics, strategies, and tactics of the individuals whose experiences come in contact with the legal system. For all of these reasons, I think it’s good for lawyers to keep an eye on the stream of unpublished opinions in their areas of interest.
Ugh. The comments section is particularly rich.
“For example, in 1971 the recently renamed Kelly Services ran a series of ads in The Office, a human resources journal, promoting the “Never-Never Girl,” who, the company claimed: “Never takes a vacation or holiday. Never asks for a raise. Never costs you a dime for slack time. (When the workload drops, you drop her.) Never has a cold, slipped disc or loose tooth. (Not on your time anyway!) Never costs you for unemployment taxes and Social Security payments. (None of the paperwork, either!) Never costs you for fringe benefits. (They add up to 30% of every payroll dollar.) Never fails to please. (If your Kelly Girl employee doesn’t work out, you don’t pay.)”
Oh, how nice. I worked as a temp paralegal in New York City for a while after college, in a workplace that my friend Adam accurately described as a white-collar salt mine: 12-hour workdays, no benefits, rules against speaking (supposedly, a firable offense). On one occasion, a seventy-some-year-old man (presumably, unable to retire) threw up all over himself and his workstation, rather than risk going to the bathroom or (God forbid!) miss a day of work when he was sick. All this occurred in the Midtown offices of a white-shoe corporate law firm. Of course, even temp paralegaling in Midtown had a set of perks that wouldn’t be offered to temps at, say, a billing office in Toledo: We got free little glass bottles of Sanpellegrino, passable comped meals at the firm cafeteria, black-car service home to the suburbs on late nights, and a 34th floor view of Manhattan — not to mention what seemed (as a recent college graduate) to be good compensation for our time. But when the case we were working on looked like it might settle, they fired us all by phone, and cancelled the key-card privileges to the building. No “thank you” from the firm. No offer of a reference letter. In fact, we were curtly informed that we were not to contact the employer for any reason after leaving, and that we could pick up our belongings from the office of the temp agency. So, I should probably express my gratitude to the partners at the firm where I worked for providing me an early object lesson on why big corporate law sucks. And it’s not hard for me to believe that the temp industry, and the lawyers who work with it, have been central to replicating degrading working conditions for people across the U.S.