Convictions: Slate's blog on legal issues

Blame Berkeley

Academic Freedom and Yoo

What I find perhaps most troubling for a deep believer in academic freedom is that Yoo's most infamous legal memos (in particular, the argument that congressional statutes cannot constrain the president's exercise of his powers as commander in chief) are blatantly, embarrassingly wrong under the law. 

I keep wondering what Berkeley (or Harvard or Princeton, etc.) would do if a professor of molecular biology had written a medical opinion while in government employ disclaiming the truth of evolution—and not only that, had continued to vigorously defend his rejection of evolution once returned to his full-time employment teaching university students a course in molecular biology. Is academic freedom the freedom not just to be wrong (which of course it is) but also to be, in this sense, false? Or perhaps academic freedom extends as far to continue the professor's employment but to insist that he retitle his course not Molecular Biology but rather something to the effect of Professor Smith's Imaginings of the Biological World?

Law, of course, is not science—as much as it might pain some of us to admit. It is difficult in the extreme to declare a legal proposition false with the same kind of certainty with which one can declare evolution a reality. But as one who clings (so to speak) to some belief in at least the semi-autonomy of law, it is at least painful to accept that one of the top law schools in the country embraces the idea that one of its professors could teach students a course in Introduction to Constitutional Law while advancing a view of the Constitution that is simply without support in text, history, logic, or life. Because law is not science, and because academic freedom is part of the kind of world I want, in the end I suppose I'll just have to learn to accept it. Would I pay for my kid to attend this law school? Not in a million years.

Family-Friendly Firms? What About Family-Friendly Faculties?

Watching the debate on family-friendly firms, I can't help but think that the conversation's focus is a bit too narrow. 

A midlevel associate at a large law firm who moonlights as a father and husband, I'm familiar with the difficulty of maintaining "work-life balance." (I use that goofy term under protest.) That said, I've found that pursuit of partnership is no more daunting than pursuit of an academic post. Let me explain.

As much as I genuinely enjoy my job, I will confess that from time to time I've longed to pursue an teaching position. Such a move, however, seems almost impossible to pull off without imposing substantial burdens on my family. Because a fairly substantial body of written work is now a prerequisite to applying seriously for academic posts, a young associate's path to the ivory tower now nearly requires a one- or two-year stint in a research fellowship, "VAP," or other pre-teaching program. 

Thus, pursuit of an academic post requires, above all else, mobility—the ability to move among perhaps three cities in three years. Combine that with the financial burdens of spending one or two years in fellowships/VAPs and the geographical flexibility favored in the AALS "meat market," and you get a nightmare scenario for a young father or mother.

Granted, my observations are not from experience; I've not subjected myself to the trials of pursuing an academic post. That said, I'd be curious to see the demographic data on the last couple of years' hires. I would bet that the last few years' new professors tend not to have kids older than 3.  I would love to be proved wrong, but I strongly suspect that I'm right.

These family-unfriendly aspects of the teaching-job market don't strike me as nefarious; they're fairly predictable. After all, there are only so many teaching jobs to go around, so of course they'll go to the applicants best-suited to endure the trials necessary to build up CV and move to the available jobs.

Of course, such are the very reasons why big-city, high-salary law firms are relatively family-unfriendly: There are only so many jobs to go around, and the attorneys willing to put in the hours and effort are the ones who will collect the prestige and paychecks. People looking for less job responsibility can find it in smaller cities or in big-city firms with lighter workloads (and smaller paychecks). 

I've managed to find a job that offers me interesting work, good pay, and a manageable workload. I could move to a firm that pays more and expects more, or I could move to a firm (like the one pitched to me by a headhunter recently) that offers a much lighter workload with a concomitant reduction in pay. Neither option has tempted me.

What's the comparable set of options when it comes to the entry-level teaching market? I've not yet seen it.

Due respect to our founders & to ourselves

Paying due respect to John Adams, Esq., the founder now coming to life in a teleseries, Adam rues the absence today of more than a "lucky few" capable of "deep political, philosophical, and legal argument."  An HBO subscription's outside my monthly budget; nonetheless, I've listened to the David McCullough book on which the series is based, to the Ron Chernow work on Alexander Hamilton that Adam also cites, to a work on Thomas Jefferson, on whom Orin chimes in, and to a number of other founders' biographies.  Thus I add to their thoughts my own "modest contribution."

It's an understatement to say that the achievements of these fellows were awe-some, in the deep meaning of that word.  In so doing, however, we ought not to discount our generation of attorneys.  Many of us came to law school broadly schooled in the arts and sciences of human endeavors like politics, literature, logic, biology.  Perhaps it is only a lucky few of us who've studied Latin, as the founders typically did.  (I thank my father for my own good luck in that regard.)  But many of us have far more than a passing acquaintance with still-spoken languages other than English -- and that is more, McCullough's book revealed, than Tout Paris would've said of John Adams or, for that matter, of Ben Franklin.

So why the dearth of depth in legal argument and practice?

Surely some blame may be cast on contemporary legal culture.  1st, there's the way that we learn and practice.  Endeavoring to extract precise "holdings," law today tends not to privilege deep thoughts that may lie in the text, subtext, or context of prolix judgments.  That, in turn, tends to give little cause for consulting any dog-eared schoolbook we might've carted with us from one move to another.  2d, as Adam notes, there's the time that we're expected to devote to this narrower-scoped legal practice.  Electronic gadgets have made our work truly 24/7.  It's hard to keep up on Aeschylus -- check out Robert F. Kennedy's off-the-cuff quote of that ancient Greek the night that Martin Luther King Jr. was killed -- when the BlackBerry's beeping.

But let's not forget some important caveats.  1st, Adams, Hamilton et al. were the "lucky few" of their times; far more early Americans lived out lives of far less achievement.  2d, many of these men owed to others their leisure to think as well as act, to pen prose even as they practiced law.  John Adams owed much to Abigail Adams, who, McCullough wrote, well managed the farm and household in Braintree in order that her husband might focus his energies elsewhere; in turn, all the Adamses owed much to domestic servants.  Abigail's father kept slaves, and of course slaves were forced laborers on the lands of many other founders.  Theirs was an economic arrangement this country did well to abandon.

Even as we hold our founders' achievements in awe, then, we must remember their full, complex, and not always laudable stories.  And we should not sell ourselves short.  Sure, we should make more use of our own breadth and depth of knowledge.  At the same time, we should take much comfort in the rich diversity, in class, sex, age, ancestry, and experience, of all of us who today think about, write on, and practice the law.

John Adams, Esq.

Tonight, HBO offers Episode Four in the gripping seven-part mini-series, John Adams.  No doubt, each viewer takes something different away from the series; here is my modest contribution.

What I enjoyed in the early episodes was seeing such deep political, philosophical, and legal argument coming from a practicing attorney. 

Today, of course, our world is much more stratified:  the lawyers practice law, the professors engage in abstract legal/philosophical debates, and the politicians debate in the arena of government.  Rarely do players cross from one sphere to another, and even less commonly do they occupy multiple spheres at once.

What a far cry from the founding era!  John Adams not only entered the political arena while practicing law full-time, he even maintained his practice until December 1777, when he participated in his last case at the bar.  (According to The Legal Papers of John Adams, his last case was Penhallow v. The Lusanna, a prize cause in the Court Maritime of the State of New Hampshire.  Unbelievably, that case reached the U.S. Supreme Court in 1795.)  According to the preface to his collected Legal Papers, he briefly considered returning to full-time practice after his presidential term ended, but never did.

The best example of the founding-era lawyer-writer is, of course, Alexander Hamilton, who despite a full-time practice found the time to write his Federalist Papers -- his contribution to one of the most cogent arguments of political theory in modern times -- on the side!  (As biographer Ron Chernow once said at a book fair, "he was moonlighting the Federalist Papers!")

No doubt, both legal practice and the legal academy have changed since the founding era, and it's far-fetched to think that an Adams or Hamilton could have nearly the same impact on legal debate from a full-time practice as they did in their respective moments of achievement.  Legal practice is perhaps too time-consuming and lucrative; legal teaching and writing is perhaps too stove-piped and insulated and segregated.  The lucky few who exist in both worlds are the exceptions, not the rule.