Do Lawyers Like Being Lawyers?

consider this Spring 2006 study from the ABA

DISCONTENTED IN THE LAW
Supervised Lawyers Report Struggle to Balance Work and Family, Survey Shows

BY JILL SCHACHNER CHANEN

It’s no secret that law and job satisfaction don’t always go hand in hand, but a recent survey shows just how miserable some lawyers really are, especially those newer to the practice.

The reason boils down to work-life balance, according to a survey by the National Association for Law Placement Foundation. The struggle to find that balance is especially pronounced among lawyers in supervised or nonmanagerial positions, the survey found.

More than 70 percent of these lawyers report moderate to major problems handling family and household responsibilities and finding time for leisure activities. Close to half feel high levels of stress and fatigue. And about two-thirds say they are forced to sacrifice personal fulfillment outside of work in order to advance their careers.

two more...

1. We spent some time on statutory interrpetation in class, although we downplayed it for the final. If only our final was still ahead of us, I might use this "hypothetical:" does a the use of the word "force" in the September 2001 authorization of Use of Mulitary Force, authorizing "all necessary force," include wiretapping?


2. This semester we talked about the politics of courts now and again. Here is a post from our co-author, Princeton Emeriti Walter Murphy, on law and politics

Subject:
Re: FW: Walter Murphy on LAW AND POLITICS
From:
"Walter F. Murphy"
Date:Wed, 21 Dec 2005 13:32:53 -0700
To:xxxxxxx@yahoo.com
CC:Gillman Howard

Have been away and the debates have moved to other issues, but I would like to respond to Sean Wilson's comment re "politics" as overlapping/including religion, science, etc: The answer is a simple "of course." Aristotle saw politics as the "master science," concerned with helping citizens live noble lives. The most obvious overlap (competition?) is with religion. We can do a fairly good job of separating church and state but we can never separate law and politics, precisely why so many political theorists and public officials have tried to create a civil religion or make the head of state the head of church, as is still the case in the UK, Morocco, and, de facto, Iran.

As for science, many of our colleagues, Bob Gilpin most especially, have made science the focus of their scholarship. Issues such as cloning, stem cell research, ecology, public health and atomic energy are political, not merely "scientific issues," as is exploration of other planets.

We could say essentially the same thing about the other so-called fields that SW mentions.

We may think of ourselves as belonging to a water-tight discipline, but the distinctions among fields of the social sciences are largely imaginary and overlaps with the humanities (including theology, certainly moral theology) and the physical sciences is enormous. Indeed, I believe the distinctions among the humanities, social sciences, and physical sciences are, at best, artificial, a concession to our limited life times and intellectual capacities. The complexities of the world require specialization; but we'll never understand what we, as scholars, are doing if we adopt the mind set of the worker who said he was carving a stone rather than that of the man who said he was building a cathedral. Granted that most of us, certainly I, have to be content with an occasional well carved stone, but that stone is part of a much larger effort to understand and, we may hope, improve human life and its environments.

As for a distinction between law and politics, I repeat that law is a subset of politics in the Aristotelian (or Eastonian) sense. We, as professional scholars, should stop using a shallow, journalistic definition of politics. Even a decision by a lawmaker, judge, other official, or private citizen, to defer to other(s) represents, consciously or not, a judgment about the best way to organize and operate a society, to maximize our chances of living a good life. Why such a decision necessarily involves only "desire" and not reasoned judgment escapes me. That each of us may confuse the public good with private gain is obvious; that's why we have a duty to explain and criticize and perhaps take other action that our system opens up to us.

Peace,

WFM

cheers,

End of Semester Wrap Up

A few headlines and tidbits to post as the end of the semester wrap-up.

1. Is this why Harriet Mier was appointed?

Recall our discussion of Why Harriet? Was it merely cronyism? Or is it about the expansion of executive power that this administration has pushed since taking office?

From David Sanger's NY Times story about the NSA spying program comes this paragraph:

Bush said that every 45 days the program was reviewed, based on "a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland." That review involves the attorney general, Alberto Gonzales, and Bush's counsel, Harriet Miers, whom Bush unsuccessfully tried to nominate to the Supreme Court this year.

In the shadow of the administration's arguments in Padilla and Hamdan cases, maybe? Does Bush/Cheney care more about Roe or Executive Privilege?

2. The Dover, PA Intelligent Design case came down. Of interest to our studies was this portion of the opinion, submitted here without comment beyond noting that there are a lot of issue wrapped up here -- including the "dispute-centered" approach the judge seems to be taking:

Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board's decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

3. Access to Courts is a basic first step before we can address Rosenberg's argument whether Courts Matter.

From Roll Call, a subscription-service reporting on Capitol Hill:

Shortly before midnight on Sunday, the leaders agreed — after House and Senate negotiators had already signed the report and announced its details to the public — to insert controversial language that protects vaccine manufacturers from product liability claims in the event of a viral pandemic, such as one caused by avian flu.

Observers familiar with the procedural history of conference reports said that they were unaware of any precedent for inserting language after conferees had signed off on the report. A review of several Congressional Research Service guides to conference proceedings make no reference to any prior example.

Maybe its good policy (Perhaps spying on Americans is too)? Its not very democratic, however.

4. One student inquired about the Harvard Law Review Statistics used on the Final Exam. You can find them in PDF format on the Harvard Law Review Homepage.

the same issue contains a debate on proper interpretation: INTRODUCTION:
THE DEBATE OVER FOREIGN LAW IN ROPER V. SIMMONS 119 Harv. L. Rev. 103 (2005)

Finally, in addition to the Statistics, each November the Review publishes a "Foreward," an article by a prominent legal scholar. These often emerge as among the most important scholarly pieces of a generation. In 2005, the Foreward was written by Judge Richard Posner (MPEK reading 11.6. So what we have taken for granted all semester, is worthy of a prominent law review article.

FOREWORD: A POLITICAL COURT
by Judge Richard A. Posner [ Full Text ] VOL. 119 · November 2005 · NO. 1
119 Harv. L. Rev. 31 (2005)

Scholars discuss the work of the Supreme Court in two different ways. The less common is that of social science, with its emphasis on positive rather than normative analysis, its refusal to take at face value the “official” explanations for judicial phenomena proffered by insiders — in a word, its realism. To a social scientist, or to a law professor or other jurist who is imbued with the social-scientific approach, the Supreme Court is an object of observation rather than of veneration or condemnation. ...

The other way in which to discuss the Court’s work — and the way more familiar to lawyers, law professors, and judges — is to subject it to normative analysis conducted from within the professional culture. The analyst praises or condemns particular doctrines or decisions, or the reasons offered for them by the Court (textual, historical, pragmatic, and so forth) — more often condemns them, arguing that they are mistaken, unsound — more precisely, that they are mistakes of law, that the Court simply got the law wrong. This type of Supreme Court scholarship is a branch of rhetoric or advocacy — a continuation of brief writing and opinion writing by other means — but it is not wholly unrelated to the first type, the social-scientific study of constitutional law.

My aim in this Foreword is to be realistic, though without hewing closely to any particular social-scientific methodology; ...I shall argue that, viewed realistically, the Supreme Court, at least most of the time, when it is deciding constitutional cases is a political organ, and (confining myself to constitutional law) I shall develop some implications of this view, drawing in part on earlier Forewords, such as Hart’s.

Comments from Prior Post

Raised here, so you need not click through. Thanks to all commenters this semester.

Curtis N. said...

Here is a helpful little website for all of those people who hate registering their names and email addresses for online websites just to read the newspaper articles.

www.bugmenot.com

All you do is cut and copy the browser address of the news article which requires registration, and generally this database has a sign-on name and password already created.

I find it quite helpful.

-Curtis

11:13 AM
Delete
john redden said...

Modern-Day F. Lee Bailey

Today's New York Times buried this fascinating description of former Attorney General Ramsey Clark - why he is who he is, and why he has chosen to represent Saddam Hussein por gratis.

I thought the article raised some interesting questions about the power of courts and the purpose of law.

5:05 PM
Delete
Michael Cook said...

During one class period awhile ago, Justin asked about the fate of Jose Padilla; a Washington Post reported briefing on Padilla by Attorney General Gonzales can be found at:
...
i am unable/don't know how to post the link to the website...

but you can go to Washington Post.com and search for "Attorney General Gonzales Holds Briefing on the Indictment of Jose Padilla" on November 22, 2005.

enjoy

11:05 AM
Delete

Paper 4 once again

On 11/30 the Supreme Court heard oral argument in a case involving a New Hampshire law restricting abortion. this case would provide numerous angles of analysis: a new justice line-up (O'Connor will likely not participate if her vote matters); the consideration of precedent (does precedent have to be overturned, to be made ineffective?)

see articles for isntance in the LA Times, the NY Times, and the Washington Post. Above the Post's post, when I looked at 3:35 11/30, is an article about Alito pushing to overturn Roe in 1985. Of course, that was in a political job, seven years before Casey.

Free Culture is Dead?

In considering interpretation, one author likened the constitution to a score, and society and the court to a conductor. I drew on the example of the Grateful Dead -- a jam band that always delivered different intepretations.

The Dead was also famous for allowing recording of its shows, and the internet allowed the easy trading of these files. Until....

The New York Times November 30, 2005
Deadheads Outraged Over Web Crackdown
By JEFF LEEDS

The Grateful Dead, the business, is testing the loyalty of longtime fans of the Grateful Dead, the pioneering jam band, by cracking down on an independently run Web site that made thousands of recordings of its live concerts available for free downloading.

The band recently asked the operators of the popular Live Music Archive (archive.org) to make the concert recordings - a staple of Grateful Dead fandom - available only for listening online, the band's spokesman, Dennis McNally, said yesterday. In the meantime, the files that previously had been freely downloaded were taken down from the site last week.

Dissent has been building rapidly, however, as the band's fans - known as Deadheads - have discovered the recordings are, at least for the time being, not available. Already, fans have started an online petition, at www.petitiononline.com/gdm/petition.html, threatening to boycott the band's recordings and merchandise if the decision is not reversed. In particular, fans have expressed outrage that the shift covers not only the semiofficial "soundboard" recordings made by technicians at the band's performances, but also recordings made by audience members.

To the fans, the move signals a profound philosophical shift for a band that had been famous for encouraging fans to record and trade live-concert tapes. The band even cordoned off a special area at its shows, usually near the sound board, for "tapers" - a practice now followed by many younger jam bands.

Paper #4

The Due Date of this paper is now no later than class, 12/8/05. If you want to receive it back by the last day of class, Friday 12/9, I will need it by class on 12/6.

The topic(s)have been broadened. First, if you go to one court, rather than two, that will be fine. Second, you can write on a topic of your choosing, which then need not be about a visit to a court.

Potential topics:

1. select one of the earlier paper topics. Class member JW asked about the torture memo, for instance. Sure, do it. Keep in mind, as with all papers I want evidence of engagement of our material, and you might find helpful reading 12.1, US v. Nixon, on constitutional interpretation and executive privilege. Or, see the post below, where classmate JR pointed to a debate in Legal Affairs about executive power.

2. Why is sony legally allowed to install a rootkit. Wired also covers this stuff, as does the EFF or Electronic Frontier Foundation -- when I posted this link, several of the main headlines / stories on the page were about Sony.

3. Electronic Freedom / Privacy more generally can be explored. consider for instance, both legislation -- the development of law -- might serve some people? I am thinking about our post-9/11 computer world, as discussed both by Wired and by a visitor to campus this week. From Truman Today:

Bryan Cunningham will present ...seminars entitled “Information Security: From the White House Situation Room to the College Classroom” Nov. 30 as part of a Collegis Leadership Series.

Cunningham will also speak at 6 p.m. in the Student Union Building Alumni Room. Students, faculty, staff and the public are invited.

He will discuss a comprehensive and cost-effective approach to network security for educational and other entities potentially subject to federal law, state information security breach disclosure, and federal and state regulations. He will discuss effective strategies for mitigation of legal risks for executives for breaches of network security.

He also had something to do with Homeland Security.

4. Critically discuss A Civil Action.

5. Write a critical appraisal of this course: what should a course in Law and the Judicial Process address? How should it be addressed (what types of readings, what types of assignments?). Effectively, an extended course evaluation, or else planning of a future course.

6. Do research on some topic of your choosing, perhaps inspired by earlier readings. There is more recent work than Danelski's on Chief Justices and opinion assignment, for instance. Or, do a little research on Burger and Rehnquist and turn my few powerpoint slides into a paper, assessing those two Chiefs on Danlelski's two types of leadership. You would likely want to look at a few books that discuss their leadership abilities and styles, and use that as yoour evidence. And do not forget JSTOR accessible through Pickler home page -- "Find it --> Articles --> JSTOR."

7. What do you want to do? Run it by me. Make sure that you have a question that is enough to sustain a 5-6 page paper. My mantra is "engage the material:" show use of stuff related to our class.

Statutory Interpretation and Gate-Keeping

This article from Findlaw
is a somewhat bizarre example of how statutory interpretation matters: Does a videotaped sexual encounter, later emailed, fall under a statute that governs wiretapping? An appeals court overturned the dismissal of a lawsuit under the statute.

Doe will still have to prove that the recording had a soundtrack and that she had an expectation of privacy in any oral communications that ended up on the tape, but nothing she has pleaded in her complaint will preclude her from meeting these requirements, the panel said.

More on Alito

Two stories report Alito views on rights of the accused. Not terribly surprising, given the position of his party on these issues over the past couple decades.


From the Washington Post

'86 Alito Memo Argues Against Foreigners' Rights
Work for Justice Dept. Points to Views That May Affect Anti-Terrorism Rulings on High Court

By Jo Becker and Amy Goldstein
Washington Post Staff Writers
Tuesday, November 29, 2005; Page A04

As a senior lawyer in the Reagan Justice Department, Samuel A. Alito Jr. argued that immigrants who enter the United States illegally and foreigners living outside their countries are not entitled to the constitutional rights afforded to Americans.

In an opinion that offers insight into the Supreme Court nominee's view of an area of law that has gained new significance with the Bush administration's policies to combat terrorism, Alito gave his approval to an FBI effort in the 1980s to collect from Canadian authorities fingerprint cards of Iranian and Afghan refugees living in that country.

From the New York Times

Alito Memos Supported Expanding Police Powers

by DAVID D. KIRKPATRICK
Published: November 29, 2005

WASHINGTON, Nov. 28 - As a lawyer in the Reagan Justice Department, Samuel A. Alito Jr., the Supreme Court nominee, played an active role in advancing the administration's efforts to expand law enforcement powers and limit restrictions on prosecutors, documents released Monday by the Justice Department show.

The 470 pages of documents, which consist mainly of memorandums Mr. Alito wrote as a deputy assistant attorney general in the office of legal counsel in 1986 and 1987, generally address routine matters or highly technical legal issues. In several of the memorandums, however, Mr. Alito makes a series of arguments espousing a broad view of law enforcement authority and a skeptical view of proposals to protect individuals from legal investigations.

The Times article appropriately cautions us about the Role Alito was playing then, which is not the same as the position for which he has been nominated:

Mr. Alito, who is now a judge on the United States Court of Appeals for the Third Circuit, wrote the memorandums as a lawyer enacting the policies of the administration, not necessarily expressing his personal legal opinions.

Providing Legal Services

Here is a website on legal services outsourcing, called Economical Services:

India is the leading destination for outsourcing. India has gained a competitive edge as an outsourcing hub for a number of reasons, including the widespread use of English and availability of large pool of professionals at internationally competitive rate. Outsourcing to India gives overseas attorneys the clear competitive advantage over other legal service firms in terms of cost, quality and turnaround time.

What Heinz and Laumann hemisphere is that in?

Constitutive DecisionMaking

Here's a post from the National Journal on Torture. It reminded me of the constitutive school: our choices "become us."

Usually this is said in regards to the US, as a nation:

"The reason I believe that torture corrupts the torturers and society," Gerber says, "is that a standard is changed, and that new standard that's acceptable is less than what our nation should stand for. I think the standards in something like this are crucial to the identity of America as a free and just society."

Interestingly, this article also talks about this at the individual level:

"If you talk to people who have been tortured, that gives you a pretty good idea not only as to what it does to them, but what it does to the people who do it," he said. "One of my main objections to torture is what it does to the guys who actually inflict the torture. It does bad things. I have talked to a bunch of people who had been tortured who, when they talked to me, would tell me things they had not told their torturers, and I would ask, 'Why didn't you tell that to the guys who were torturing you?' They said that their torturers got so involved that they didn't even bother to ask questions." Ultimately, he said -- echoing Gerber's comments -- "torture becomes an end unto itself."

Gotta go watch Resevoir Dogs and play some GTA-2!