Ravings from a Man in an Old White House

I wrote a Legal Jargon page a while back about thinking like a lawyer where I admitted that I do not know what it means to do that. “Thinking like a lawyer” is one of those things you are told that you will learn in law school, and many people say they did. To this day, I don’t know what the hell it means. I may have had some inspiration in the shower today.

I was listening to Rush Limbaugh rail against today’s decision in Kennedy v. Louisiana, the child-rape death penalty case this morning. Mr. Limbaugh was rather upset with the four liberals and Anthony Kennedy, who held that the death penalty in child rape cases is disproportionate. Not only was my reaction not emotional, I didn’t have just one reaction. As someone who does not support the death penalty, I was happy that there would be fewer executions. As a lawyer, I had multiple reactions. First, with the death penalty being legal, I am not sure that I agree that it is disproportionate for aggravated rape of a child or an adult to be punishable by death. After all, felonies, all of them, used to be punished by death. There is a line of proportionality, but I’m not so sure that really bad murders is where the line falls at this point in history. Having said that, The court said in Coker v. Georgia that the death penalty was disproportionate for rape cases. It explicitly left open the question of child rape, but the logic of the decision (as I recall it seven years after reading it) would apply to child rape as well. That is why I expected this result. My third reaction, still not having read the decision, was to be shocked at how many opinions there were: two. In contentious cases, the justices often splinter. This one agrees with that one, but writes separately to make this point; she agrees with only part II and III of his opinion; and so on. In this case, Kennedy wrote the majority opinion, and four others signed on; Alito wrote a dissent that three others signed on to. There is a certain power in that for both sides. Aside from the fact that a single majority opinion will provide clear guidance to the lower courts (unless it was poorly written), I don’t really know what that means—I just know it means something.

So maybe that sort of back-of-the-envelope, compartmentalized over-analysis from multiple perspectives without even thinking to do it is what it means to think like a lawyer. Or maybe not. I doubt I’ll ever know.

I’m listening to some wretched 80’s Cher song I’ve never heard before while on hold with another lawyer’s office. I can’t tell you the name of the song because I’m trying not to listen so the lyrics don’t get stuck in my head. Shouldn’t I be able to bill at least double for that?

Blawgs (law-related weblogs) are not generally great places to look for tips on romance. The much-read conservative blawg The Volokh Conspiracy discusses an economic analysis of long-distance relationships. For some reason it reminds me of an article I read in college called something like “Looking for Love When There is No One on Your Right.” That article was about the difficulties ultra-conservatives have finding love matches.

Looking ahead to this week, I thought that with a smidge of work on Sunday, I would be able to catch-up by the end of business Friday. I’m not so sure anymore. I was in court longer than expected on Monday. I had a 4-way conference after court on Tuesday, and I didn’t get into the office until after 3:30. A few files took up the bulk of the day. By the end of the day, I’d knocked half the items off my to-do list, but it ended up twice as full as when I started. Now I see why so many big-firm associates are cokeheads.

It used to be that when the Supreme Court made a decision, there would be an opinion explaining the decision of the majority, a decision, and maybe a concurrence or two. I remember a case in which their were ten opinions: one per curiam, i.e., for the Court, and one for each justice. If anyone can remind me of which, I’d really appreciate it.

Anyway, justices now divide their opinions into parts (Part i, Part II-A, etc.). They do this so that other judges can join part of their opinion rather than the whole thing. This has gotten out of hand. The following is a run down of how the justices voted on the Texas redistricting case that was announced today:

Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts II-A and III, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined, an opinion with respect to Parts I and IV, in which Roberts, C. J., and Alito, J., joined, an opinion with respect to Parts II-B and II-C, and an opinion with respect to Part II-D, in which Souter and Ginsburg, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Breyer, J., joined as to Parts I and II. Souter, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined. Breyer, J., filed an opinion concurring in part and dissenting in part. Roberts, C. J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Alito, J., joined. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Thomas, J., joined, and in which Roberts, C. J., and Alito, J., joined as to Part III.

Litigants in the state of Illinois have an interesting right at the trial court level. Each party has the right to have their case transferred to a new judge for no reason at all. 735 ILCS 5/2-1001(a)(2). To do so, the party must file a motion before the trial or hearing has begun and before the judge has ruled on a substantial issue in the case. If a person is added as a party after a substantial ruling, the new party can still move for a substitution of judge.

The motion is really simple. You allege that the Honorable So-and-So was assigned to the matter, that there has been no hearing or trial, and that there has been no ruling on a substantial issue. Then you ask for a reassignment and you’re done.

On the day your motion is heard, you go before the judge your trying to get away from. Generally, the question of whether their has been a substantial ruling is not controversial, so it is granted. Then you go to the next highest judge, i.e., the presiding judge of the division (if the court is divided into divisions) or the Chief Judge (if the judge you are changing from is the presiding judge or if there are no divisions). That judge reassigns you to a new judge. Finally, you go before the new judge to tell him or her that you have been reassigned to that courtroom and to apprise the court of the basic facts of the case.

Second Massachusetts post in a row. As you probably all know, the Supreme Judicial Court of Massachusetts struck down the restriction that marriage only be contracted between one man and one woman. Predictably, the court upheld the requirement that marriages contracted in Massachusetts between people from out of state be valid in their home state. In doing so, they left open the question of what to do when the foreign jurisdiction does not explicitly restrict marriage to one man and one woman.

This question will be answered before too long. The Superior Court, Suffolk County, is considering whether a lesbian couple from Rhode Island, which does not have the one-man, one-woman restriction, should be issued a marriage license.

To my view, this challenge is step 2 of 5:

1. Find a state to recognize gay marriage;
2. Get that state to issue licenses to out-of-staters;
3. Get the home states to recognize the validity of the license;
4. Use that to encourage states to repeal their Defense of Marriage Acts and by statute to provide for marriage; and
5. Launch serious (and seriously funded) constitutional challenge.

My best guess is that step 2 will soon be crossed off the list.

Next fall, lawyers will argue the question of whether the EPA must regulate carbon dioxide before the Supreme Court. Ironically, large amounts of CO₂ will be expelled in the process. The case is Massachusetts, et al. v. EPA, 05-1120. In a nutshell, several states, Illinois included, want the EPA to regulate CO₂ emissions from automobiles. The EPA says that it doesn’t have the authority, and that it wouldn’t even if it could. The lower courts have agreed with the EPA, and the D.C. Circuit Court of Appeals opinion is here. The debate boils down to this: is CO₂ a pollutant? In a way the question is interesting. The planet needs the stuff to survive, but excess CO₂ is, well, not so good. In the end, it’s bothersome that the EPA and the Alliance of Automobile Manufacturers are on the same side of the case. It should be AAM v. EPA, not Mass. v. EPA.

I know two people going through the excruciating ordeal of fulfilling the examination requirement for admission to practice as an Attorney and Counselor at Law in the state of Illinois. At some point, any lawyer, law graduate, or law student’s bar-exam related train of thought will make a stop at how pointless law school is. Law school doesn’t prepare you all that well for the bar and almost not at all for practice. It is defended as a place where one learns to “think like a lawyer.” This is supposed to be complete around the end of the first year. That leaves two years of questionable value.

Tens of thousands of dollars later, there are only a few thousand more to spend. There are the ones that matter: tuition for the bar review. Unlike law school bar review (a weekly ritual wherein law students get drunk enough to forget their names (but not the Rule Against Perpetuities) and hook-up (but the first to recite the Rule doesn’t get any for a week (no interest is good which is not certain to vest or fail to vest within a life in being at the time of the making plus 21 years). Damn, lost again)), the bar review course (I recommend BarBri) gives you the substantive information you need to pass and invaluable tips on what to expect when you get there. All the same, the studying sucks. Hardcore. If I recall correctly, even watching the Real Property and Criminal Law lectures was enough to induce a man to gouge his eyes out and shove them in his ears. Or fall asleep. Whatever. I could never sleep in class.

At some point, I really had something meaningful to say. I kinda got lost though. Anyway, it’s hi-fucking-larious that other people have to go through the tortuous (and tortious) nonsense I had to.

For the first time in a long time I ran out of things to do today. For the moment I am caught up. I might take Wednesday off. Friday will be interesting, though. In addition to the usual crush of trying to get everything done before the weekend, I have a real estate closing at 3:00 that’s about eight days after the contract was signed. That is lightening speed. That could make Friday really interesting, because when you close fast, issues come up at closing that would normally be finished long before. I’m hoping not to be late to the Grant and Toni Birthday-thon.