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PERRIN LOVETT

~ Fiction, Freedom, and The West

PERRIN LOVETT

Tag Archives: judges

Eulogy for a Decent Judge: Hon. Marvin Shoob, 1923 – 2017

13 Tuesday Jun 2017

Posted by perrinlovett in Legal/Political Columns

≈ 1 Comment

Tags

Courts, judges, law, Marvin Shoob

I just read that retired Federal Judge Marvin Shoob died. He was 94. And he was, in my opinion, a thoroughly decent jurist and a gentleman.

Marvin Shoob, the embodiment of an independent federal judiciary and a jurist who consistently protected the powerless and disadvantaged, died Monday at his home in Atlanta. He was 94.

Shoob retired in February 2016 as a senior U.S. District Court judge after 36 years on the bench.

“It has been an honor and privilege to serve as a United States district judge,” Shoob wrote in a letter, announcing his retirement. “For this opportunity, I am most grateful.”

The AJC recounted some of his more famous decisions, decisions that don’t all necessarily square with my legal outlook:

Among his most noteworthy decisions, Shoob ruled licensed firearms owners could not carry guns into parts of Hartsfield-Jackson International Airport; Fulton County had to improve conditions at his overcrowded, dangerous jail; Cobb County had to remove its Ten Commandments display at its courthouse; and Georgia had to place residents with development disabilities into community settings, not making them institutionalized — a ruling upheld by the U.S. Supreme Court in 1999.

I disagre(ed) with all of these except for the jailhouse case. That’s okay, as minds can differ, and do. However, it is not the disagreements I remember, but my single case before Judge Shoob, my only case ever in the Northern District.

My guy was sued in the N. Dist. over a copyright issue. Due to his misplaced reliance on the lies of a certain unnamed mega-transnational insurance company, he found himself with a default judgment. He also found himself in a court far from home and far from where the alleged transgression supposedly happened.

Judge Shoob did three things for us: First, he “opened default” as a matter of fairness; he believed the maxim that “justice abhors a default”. It was the decent and legal thing to do. Second, he transferred the case, at our request, to the Southern District – where it really belonged. Home field advantage is real and never hurts. Third, he put a verbal whipping on the opposing counsel, who had been until that point … haughty to say the least.

Once back home, we wrapped the case (a really ridiculous but eye-opening matter) up with a neat little settlement. That was … seven, eight? years ago??? Without Judge Shoob’s interventions, the case might still be in court.

Come to think of it, he’s the same federal judge that slapped down Georgia’s illegal “implied consent” law, not too long ago, as a violation of Due Process. Another sound decision for freedom.

marvin-shoob

Rich Addicks/AJC.

God’s speed, Marvin Shoob.

Judging Judges and the Law

28 Tuesday Jun 2016

Posted by perrinlovett in Legal/Political Columns

≈ 1 Comment

Tags

America, Antonin Scalia, Constitution, Courts, government, Harvard Blue Book, judges, law, law school, lawyers, Richard Posner

“Judge not, that ye be not judged.” Matthew 7:1 (KJV). If being a judge means proclaiming judgment, then would it be judgmental to judge judges? You be the judge of that.

Federal appellate judge Richard Posner, the veritable father of “law and economics” is accustomed to passing judgment, in and out of court. He recently told Slate his views on the demise of modern American law schools and of the Constitution, one in conjunction with the other.

He warned that law school faculty is out of touch with the actual practice of the law. They are. Says Posner, “I think law schools should be hiring a higher percentage of lawyers with significant practical experience.” He’s right and continued:

And on another note about academia and practical law, I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries—well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today.

He’s right there too. Other than paying it lip service no-one in government – not judges, not Congress, not the President, certainly not the bureaucracy – none of them heed the Constitution whatsoever. I may disagree with Posner’s interpretation approach to the subject but we can agree with the end result. Nino Scalia was the last man to hold the Constitution in awe and he is gone. It’s just what you eventually get from a strong central government, like that one birthed by the Constitution.

However, Posner need not worry about the academic nuances of Constitutional study. That just doesn’t exist anymore. As I noted back in 2013 the one thing left out of Constitutional Law in law school is … the Constitution. To the academics it’s just a list of inexhaustible government powers and a few, pet privileges they call “rights”. It is what it is, what it has become, what it was.

In fairness to Posner, he’s fair across the board when condemning tradition. He’s been trying to abolish reliance on Harvard’s Blue Book for a generation. That one, unlike the Founder’s scribbles, is strictly observed in law school or was when I was there (been a little while). True to disjointed form, almost no practicing lawyers and fewer and fewer trial judges actually observe Harvard’s citation system – they just cut and paste from screen to screen. It makes sense; if the Constitution is out and the laws are never far behind in obsolescence, what’s the point in properly noting them?

One thing is certain – U.S. law schools and the legal system need a severe overhaul soon. On that, we can pass judgment.

It Depends…

16 Saturday Mar 2013

Posted by perrinlovett in Legal/Political Columns

≈ 1 Comment

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advice, Atlanta, cases, civil procedure, clients, copyright, court, default, DUI, education, experience, expert, facts, honesty, judges, jury, law it depends, law school, lawyers, Philadelphia movie, research, settlement, skill, State, Tom Hank's, trial

On any given day I receive requests for legal advice – from clients, friends, and strangers.  Half of the time I am not truly familiar with the subject and usually not that interested.  Lawyers are trained to qualify any response they give to such questions as to their lack of specific knowledge.  They can be sanctioned for malpractice for giving advice which is incompetent.  Thus, I usually make it known that any answer is largely my off the cuff opinion, that I am not giving official advice unless retained to do so, and that any further explanation will require research.  This generally gets rid of most inquirers.  Usually their questions aren’t important enough to spend money answering.

My civil procedure professor in law school told us the answer to any legal question, initially, is always, “it depends.”  As a first year student, in a class that doesn’t begin to make sense until the end of the semester, this statement was perplexing.  It is entirely correct though.

confused

(Uhhhhh…weeeellll.  Google Images.)

“It depends” is a fancy, professional way of saying, “I don’t know.”  Most attorneys don’t know the answer to most legal questions, even in areas they specialize in.  To begin with, the law is such a vast, confusing, and constantly changing field, it is completely impossible to know everything about anything.  That senior lawyer with the “encyclopedic knowledge” of the law from the Tom Hanks’ movie, Philadelphia, resides on the silver screen and nowhere else.  Next, the facts presented by a particular person’s circumstances may differ from any other set of facts conceivable.  Think of laws as wrenches and facts as pipes; a lawyer is like a plumber, applying different wrenches to different pipes.  Most importantly, cases in court will ultimately have conclusions which cannot be foreseen, let alone guaranteed.  Any lawyer who guarantees an outcome is a liar and should be avoided. 

I have won cases I knew I was going to loss.  I have lost cases when I should, by all rights, have won.  Judges are as fallible as any other human beings and juries are like living roulette wheels.  Jurors are often influenced in their decisions by things completely unrelated to the case they’re reviewing.  As a prosecutor I once lost a DUI case just because the jury did not like the way my arresting officer presented himself on the witness stand.  They agreed the law applied to the defendant and the defendant’s actions qualified under the law as clear indications of guilt.  However, the officer kept yawning on the stand and the jury felt he wasn’t interested in the case and didn’t try to convince them of the State’s position.

Jury-Images-1

(Not a good day in court.  Google Images.)

That particular officer was well-seasoned and knew his job.  Unfortunately for me, he had just come straight into court from the night shift and was focusing most of his energy on staying awake.  I did not foresee that and there was nothing I could do about it.  As a consolation prize, I did win on the related minor parking charge.  The judge informed the very happy defendant he had dodged a bullet.  Chance leads to many dodged bullets in the law, and bullets that sometimes find innocent victims.

Usually an experienced attorney, once familiarized with the case in full, has a pretty good idea as to what will happen.  The attorney can relay this confidence to his client.  However, for the reasons I just gave, no attorney should ever declare even the most trivial matter a slam dunk.

In my article Legal Education I noted that law schools primarily teach worship of court decisions and legal research methods.  While it’s impossible to know all the law, it is quite easy for a skilled practitioner to look up and educate himself on any given subject.  I’ve had clients call, upset about “research” charges on their bill.  I always stand by these fees, so long as they are reasonable for the given case.  Doctors do extensive research before they cut a patient in surgery.  Lawyers are no different.

Like doctors, lawyers sometimes feel the need to associate expert counsel to assist with a really complicated area of the law.  Once a client came to me in a tizzy over a copyright infringement case which had been filed against him in federal court.  As the case was in a district where I do not normally practice, and after a cursory review of the maze of intellectual property laws, I concluded justice required me to hire another attorney from a giant Atlanta firm for assistance.  This was a very costly decision for the client.  In the end, though, the money was well spent.  I would draft the responsive pleadings to the best of my ability and with the client’s in-person co-operation.  Then I would email the drafts to the expert for touch-up and filing. 

As a result we were able to re-open the case and have a default judgment set aside as unjust.  Then, we removed the case to my area (where the client lives and operates his business).  There’s something to be said for home-field advantage.  We even got the “foreign” district judge to issue a scathing censure against the opposing counsel for his obnoxious behavior in the case!  That had the dual effect of making me and my expert look good and it took the slimy steam out of the other guy.  He was fired shortly thereafter.  In the end, we wrangled out a terrific settlement for pennies on the dollar out of the whole ordeal.  It was good work of which I am still proud.

Don’t be taken aback if your attorney reveals she isn’t familiar with the topic you present.  Such revelation is the mark of honesty.  Be ready to spend time and money on an investigation which may end up disappointing you.  It’s better to be told your case does not have merit or is unwinnable in the beginning, rather to discover such at a trial.

Remember, the advice I’ve given here is merely legal education for the lay audience, not exact legal advice.  If you have a specific case, you should consult a specific attorney.  Based on the subject and how your facts fit the law the outcome may be difficult to predict and will require some degree of research and work to resolve.  As for what I could tell you right now?  It depends.

Constitutional Law

13 Wednesday Mar 2013

Posted by perrinlovett in Legal/Political Columns

≈ 3 Comments

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16th Amendment, abortion, activists, America, anarchy, Anti-Federalists, Articles of Confederation, attorneys, Bill of Rights, case-law, Coca-Cola, commerce clause, Congress, Constitution, Constitutional Law, Courts, dissent, Dred Scott v. Sandford, drones, due process, equal protection, Federal Reserve, First Amendment, freedom, General Welfare Clause, Germany, government, Jacobson v. Mass., Japan, John Marshall, judges, law, law school, legal education, Liberty, liberty interests, Max Tucker, McCulloch v. Maryland, Michael Bloomberg, murder, National Security, Natural Law, Necessary and Proper Clause, New York, Ninth Amendment, ObamaCare, patriotism, philosophy, professors, Rand Paul, republic, rights, Roe v. Wade, science, scrutiny, Second Amendment, slavery, States, stict construction, students, Supreme Court, tariffs, taxation, taxes, Tenth Amendment, The People, United States, voting, War Between the States, Washington, wheat, Wickard v. Filburn, World War II

This article is an extension of my recent columns on The Constitution, https://perrinlovett.wordpress.com/2013/03/08/the-united-states-constitution/, and Legal “Education,” https://perrinlovett.wordpress.com/2013/03/12/legal-education/.  One would think that the matter of Constitutional law would have been covered in my article on the Constitution itself – unless one also read my treatise on law schooling.

Oddly, in my experience, the Constitution itself is not required reading for Constitutional law classes. Rather, some imported parts of the document are set forth in the text-book used by the professor. This strikes me as intellectually dishonest and unwise, akin to using a dangerous power tool without first reading the directions. Herein, I briefly cover the usual course material from such as class. The professors, many of whom have never been in a court, let alone argued for or against the Constitution, regurgitate the rulings of different courts regarding a limited number of subjects. While there is an occasional discussion of the reasoning behind the opinions, they are generally viewed as sacred, unswerving law. Rare instances where history has determined the rulings to be invalid (i.e. Dred Scott v. Sandford, 60 U.S. 393 (1857)– slavery is okay pre war between the States) are swept under the proverbial rug, written off as mistakes made due to the prevailing thoughts of the cases’ times.

tribe conlaw

(Prof. Laurence Tribe’s ConLaw Book.  Google Images.)

As I have written elsewhere, no reference to Natural Law is made and no critical thought is given to the “why” behind the laws. As Max Tucker wrote recently, any student who dares to pose dissenting views or arguments is detested noticeably by the other students and the faculty. Rarely, student are given the opportunity to delve into the deeper meanings of the cases they study. I was fortunate to be able to write a short essay on the effects of Scott, in which I decried its universal sadness and the role it played in the schism in our nation circa 1861. Part of my essay was read aloud to the class by our professor – another rarity, a former practicing attorney. My points were well accepted. Of course, I had the benefit of over a century of progress on my side. Other topics, which require hypothetical deconstruction, are roundly ignored.

As with all other areas of the law, Constitutional law has degenerated into a study of the constantly shifting case-law which arises under the Constitution.  By the way, I always capitalize the “C” in Constitution out of reverence for the document and its place in our Republic (I do the same for “Republic” too).  I have explained my philosophical troubles and doubts about the Constitution but, due to my sworn allegiance to it, I am honor-bound to defend its ideals.

Case-law study is important and has a valid place in the legal practice.  After all, most attorneys make a living pushing various issues in courts through individual cases.  Each provision of any law is subject to some interpretation as part of its application to the circumstances of the real world.  The trick of “strict construction” application of the Constitution is to adhere as closely as possible to the text and plain meaning of the old parchment.  I follow strict construction as my approach to most laws, in and under the Constitution.  The first fork of any analysis is to determine if the issue scrutinized is compatible with the underlying law.  If the two are compatible, then the analysis shifts to application of your set of facts to the law.  If there is an incongruity, then it is necessary to decide whether the law is improper or if the facts are insufficient for action.

Here’s a brief, over-generalized example, ripped from the recent headlines!:  Mary lives in New York City; she is an avid consumer of Coca-Cola beverages, particularly in large volumes.  Mary went to the corner store in Hell’s Kitchen and ordered a 40-ounce frozen Coke treat.  She was informed by the clerk that a drink of such heft was just outlawed by the wise and magnanimous mayor of NYC, Michael “Soda Jerk” Bloomberg.  Mary, offended and hurt, contacts an attorney in order to take action against the mayor and the city.  Her attorney files a lawsuit seeking an injunction or some other remedy to force the city to curb its policing of soft drink size.  Upon reviewing the case, a judge decides that NYC’s ordinance is too vague to be enforceable and strikes it down accordingly.  Mary happily continues on her guest for obesity.  This represents proper application and analysis of the law and the facts – in this case Mary’s freedom to drink liquid sugar in peace.

Had Mary had a more pressing cause – say a desire to legally and permanently rid herself of a troublesome in-law and she requested her attorney file a similar action to invalidate New York’s statute against murder, her attorney would have likely declined the case.  If he was a fool, and filed an action anyway, the attorney would lose as any court would side with the law irregardless of Mary’s malicious desires.  While it is proper to allow peaceful people to purchase and consume products of their desire, it would be improper and an affront to Natural Law, to allow someone to kill another person without good cause (i.e. self-defence). 

These examples are extremely simple, but they demonstrate my core points.  The problem in the law has arisen from the over deference to certain laws as applied to the real world.  Today, the Constitution is not interpreted as strictly dictated by its own terms or by my previous explanation of the powers it grants.  As I noted before, a few select clauses have been given immortal omnipresence to the extent the entire document has been rendered a nearly lost cause.  All of these clauses give extra, unintended authority to the government to regulate and control everything.  Through various cases over the years, the courts have essentially made up the law or, at least by their interpretation of the laws, have allowed over-reaching actions of the government to stand as legitimate.

Popular of late is the criticism of “activist judges” who take on the role of a legislator in their quests to rewrite the laws of Congress.  Some courts have gone so far as to divine new rights and powers mentioned nowhere in the Constitution.  Roe v. Wade, 410 U.S. 113 (1973) is a poster case for such activism.  In Roe, the Supreme Court opined that abortion of unborn children is a right of pregnant women.  This right stems, allegedly, from the women’s “liberty interest” in their own bodies.  While not found in the text of the Bill of Rights (or elsewhere), this right does exist and should be protected.  However, the right, like all rights, has limits.  The high Court did not adequately consider the rights of the unborn children to be secure in the integrity of their own bodies during its decision.  Instead, the Court issued an incomprehensible psuedo-scienticifc approach to determined when a life becomes a life.  Medical science has definitely answered any related questions in favor of the unborn.  However, as is, about 1 Million children are murdered every year thanks to the Roe decision.  This was a case of improper balancing of competing interests under the umbrella of the law.

I do not roundly condemn “activists.”  Sometimes it is advantageous for a jurist to heavily scrutinize the law if the law actually impinges on protected rights.  The New York soda decision is a good, if oddly worded, example.  Problems happen when judges do not universally review the impact of a law, standing or undone.  It is also impermissible in a Republic for a court to institute new law – the domain of the legislature only. 

I will herein briefly explain a few of those key clauses and ideas of the Constitution which have given the federal government unlimited power over your lives.  These are the basis for Constitutional study in law schools.  In summary it suffices to say that they can and do anything they please, without hinderance.

The General Welfare Clause

This clause purportedly allowed Congress to use its defined powers for the betterment of all people.  It has been held it “has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.”  Jacobson v. Massachusetts, 197 U.S. 11 (1905).  However, in conjunction with other provisions, the clause has been used to justify countless spending sprees directed towards the profit of a select few, often at the expense of the People.

The Commerce Clause

Congress has the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress.” Constitution, Art. I, Section 8, Clause 3.  Rather than regulating commerce between the listed entities, this clause has been egregiously abused to empower Congress to regulate anything which can conceivably occur wishing any of the stated territories.  The poster case of the clause is Wickard v. Filburn, 317 U.S. 111 (1942) in which the Supreme Court declared that wheat grown by a farmer may not necessarily be used privately by the farmer because such use (bread baking) might negatively affect interstate commerce, the ability of bread companies to sell the farmer bread.  While defying belief, this case and its ilk are recited as if dictated by Jesus by law professors coast to coast.  The Commerce Clause saw minor setbacks in the 1990s but it remains as the basis for most criminal and civil statutes enacted by Congress.  Arguing against commerce connections in court is as successful as herding alley cats.  I know this from personal experience.

The Necessary and Proper Clause

This clause, known also as the “elastic clause,” appears in Article I, Section 8, Clasue 18.  It provides that Congress can authorize the steps required to implement their other enumerated powers.  The Anti-Federlists argued against this provision, fearing it would allow the central government to assume endless power in the name of affecting those valid programs instituted under the named authorities.  Turns out they were right.  In conjunction with the Commerce Clause, the Necessary and Proper clause has been used to justify federal intrusion into everything.  It was necessary and proper to prohibit farmers from utilizing their own crops to preserve commerce, and so forth.

National Security

“Patriotism” is regarded as the last refuge of a scoundrel.  Frequently, it is the first.  There exists an idea that an allegation that a legal measure is warranted in order to preserve security or defeat some enemy regardless of any other factors.  Frequently, the government will assert this as a defense in a court case in order to avoid any discussion of the underlying subject matter (torture, internment of citizens, etc.).  This tactic usually stops the case dead in its tracks.  In a true emergency such a policy might serve a valid purpose.  However, as we now are told we live under perpetual threat of all sorts of impropriety, the argument is used as a universal repeal of our rights.  History indicates that “emergencies” never go away.  For instance, 68 years after winning World War II, we still station troops in Japan and Germany.  We also have a portion of our incomes withheld prematurely for taxation purposes – this was supposed to be a temporary war-time measure of WWII.  History also shows that a government will do anything to maximize its power under a security “threat,” including the manufacture of threats from nothing.

Taxation

“That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create….”  Chief Justice John Marshall, McCulloch v. Maryland, 17 U.S. 316 (1819).  Governments have proven themselves able to destroy just about anything, they create next to nothing.  Originally, our government was funded by tariffs and import fees and simple requests to the States for assistance.  The advent of the 16th Amendment gave Washington awesome power to take as much money as the need from the people’s labors.  The illegal Federal Reserve scheme allows them to create additional monies at will.  The courts have constantly upheld the power of taxation even when Congress didn’t know they were implementing a tax.  See: The Obamacare decision, Slip Opinion 11-393, June 28, 2012.  Taxation gets its own law school class – where it is worshipped like a god.  Dissenters are frowned upon as heretics (I know…).

A Few Rights

Over the years, several levels of scrutiny have been assigned to several pet rights.  I am suspicious of each of these levels and will not bore you with their application.  For the most part they apply rights based on classification of persons and against the backdrop of government “interests.”  It is interesting that usually deference is given to a particular law; the law is presumed Constitutional absence some showing that it is an abuse impermissible under one of the abstractly devised levels of scrutiny.  I would prefer deference to the Liberty of the People, with the government left to prove conclusively their law does not infringe that right or that any infringement is necessary in order to secure greater liberties for all.

Most Constitutional law teaching about “rights” center on the First Amendment.  There is usually a class devoted singularly to the subject.  The First is worthy of great attention.  However, too often the cases studied thereunder tend to regard outrageous acts.  Rather than securing rights to fundamental speech for example, such as protesting abortion, educating potential jurors, and protecting free speech during an election, the courts have wasted much time protecting things like naked dancing and wearing offensive sloganed t-shirts. 

Voting rights, due process, and equal protection in general have also received great review.  However, given the steady deterioration of fundamental due process and equal protection, it is obvious there is a systemic bias towards the government over the free people.  For example, Rand Paul’s protests aside, next to nothing has been done in response to the President’s plan to murder Americans in America using drones and no legal process.  The scheme is likely to survive (hopefully unused) due to deference to vague assertions of “national security.”

The rest of the Constitution is left in the dark void of undecided law.  It is either taken for granted that such matters will be resolved in due course by the courts or simply that the provisions have no effect.  In law school I was bluntly told that the Second, Ninth and Tenth Amendments didn’t exist.  I found this hard to believe.  Now, with several positive court cases to lean on, the Second has been given some legitimacy though many “scholars” still remain grounded in the ancient, misdirected past.  On Tuesday, March 19, 2013 I will attend a symposium on the Second Amendment, replete with reference to these lost interpretations.  I have several questions sure to generate discussion and maybe laughter among the gathering.  Join me if you will.

If you teach Constitutional law, incorporate the actual text into your class. It could be a prerequisite, covered at the beginning of the semester and then referred to during the subsequent discussion of cases.  Attorneys need to familiarize themselves with the text of the Constitution, everyone else should too.

Together, each of us acting as we may, we may be able to slowly restore a rational teaching and application of the Constitution.  Perhaps someday we will return to the looser confines of the Articles of Confederation, allowing the member States of the Union (closer to their respective citizens) to affect policies towards the People.  With an eye towards ultimate freedom, I can envision an even less restrictive society.  I am reminded that “anarchy is better than no government at all.”  I’m not sure society is ready for that level of responsibility yet.  Someday…

Legal “Education”

12 Tuesday Mar 2013

Posted by perrinlovett in Legal/Political Columns

≈ 6 Comments

Tags

ABA, bar exam, case-law, changing the world, Constitution, education, Gospel, John Adams, judges, law, law school, lawyer jokes, lies, LSAT, Max Tucker, Muddling Through College, Natural Law, Neal Boortz, profession, racket, Scotland, Thomas Jefferson, trade, U.S. News and World Report, unprepared

This post follows Muddling Through College.  It is intended as a truthful assessment of what life in law school is like and the relationship between legal education and the practice of law and society in general.  As with my undergraduate article, I realize that my experience is dated by a good decade.  Actually, it’s been a pretty bad decade – especially for the legal industry.  Therefore, again, I have tried to incorporate “modern” materials herein as well.

I once heard attorney-turned radio talk show host, Neal Boortz state that when he began practice law in the early 1970s, the law was still a profession.  He then said when he left the law in the early 1990s to pursue radio full-time, the law had degenerated into a trade.  Several times I recall him saying the happiest day of his life was the day he put his status with the Georgia State Bar in the inactive category.  I will update his cycle now – the law has further degenerated into a racket.

The average attorney is greeted by society with all the warmth and affection people normally reserve for a visiting termite.  I hear lawyer jokes every week.  Most are pretty damn funny.  I am one of the few attorneys not offended by these jokes.  Most attorneys do get offended even if they don’t show it.  The reason is that most know the jokes have a great basis in truth and they don’t want to admit the facts.

Mr. Boortz once said, speaking of attorneys, “No other group has done more to help and to damage our society.”  He’s right.  Lawyers were behind the Revolution, the Declaration of Independence, The Constitution, the civil rights movement, and numerous other causes for freedom.  You never hear lawyer jokes in a criminal court.  In a jail holding area or cell block, we are greeted like rock stars.  However, pick any oppressive, illegal, dishonest, or otherwise unsavory law, business, or relationship and you’ll find lawyer DNA all over it.  As a judge I once clerked for said, “It’s amazing how bad most attorneys are.”

The bad begins in law school.  There are about 200 law schools in America which have received the ABA’s seal of approval.  There are more which operate by special rules within their respective states.  U.S. News and World Report ranks and categorizes law schools every year based on a set of semi-relevant criteria.  Schools fight hard to place high on the list.  I don’t see the point.  Judging by the performance of their graduates, all the schools seem equally bad.

prof law

(This cat never practiced law and won’t teach you anything.  Google Images.)

Max “I Hope They Serve Beer in Hell” Tucker wrote an awesome article, http://lewrockwell.com/orig14/max-t1.1.1.html, on reasons NOT to attend law school.  Read it!  I agree with every single thing he said.  By the way, I fell under the Want To Change the World category.  I learned its damn near impossible to change a neighborhood, let alone the world.  And, most people don’t want any change – they enjoy their serfdom.

After four (or 6, 8, etc.) years in college one must score decently on the LSAT and submit a rigorous application in order to gain entry into even the lowest ranking law school.  Once there, one is suddenly trust into an environment that eerily resembles high school.  That’s the law school effect, everyone reverts to teenager-ish behavior and attitudes.  Nothing is actually taught in law school except how to look up information and fill out forms.  You can learn a thing or two in a specialized elective class but nothing therein will appear on the dreaded bar exam of any state.  Given the sad state of the profession, dependant on the exam’s function as a brutal hazing to enter the fraternity, you would think law professors would concentrate on the subjects covered by the bar and the methodology employed for the tests (Byzantine).  They do not.  In fact, after graduating you MUST take a private prep course in order to have any chance of passing the test.  I theorize that any well-educated person could take such a class and pass the bar.  I was not supposed to tell you that.

The majority of instructional time is instead devoted to instilling reverence for the system.  Courts, judges, and their opinions (case-law) are sold as the Gospel.  Rebels like me are interested in core concepts behind the law and the betterment of humanity.  The average student simply accepts the drivel and becomes a system cog.  As I have stated elsewhere, the average lawyer does not know and does not care why we have law or where the law comes from.  Natural Law may as well be officially forbidden by the ABA.

Once one passes the bar and gets that first legal job another enormous short-coming becomes alarmingly clear.  Law schools do not prepare anyone to practice law.  A friend of mine, a Federal Magistrate Judge once asked me, “Remember when you got out, and knew nothing?”  New attorneys are thrown to the wolves.  Half can’t hack it; I think 50% is the current percentage who leave the law sooner than later.  The other 50% live in a nightmarish state, dreaming of getting out. 

In the old days, and in a few foreign countries (Scotland comes to mind), students of the law would apprentice with an existing attorney or law firm for a number of years in order to prepare for actually practicing law.  They would simultaneously “read the law” on their own to gain a full understanding of core concepts.  After satisfying their mentors, the apprentices would be admitted as attorneys, with or without examination.  That’s how Thomas Jefferson, John Adams, Abradamn Lincoln and Cicero did it.  Today, only California, Maine, Vermont, Virginia, and Washington still allow “reading” and I imagine it is discouraged.  This process denies law schools reason to exist and deprives budding young lawyers of their $100,000+ school loan debts.  Students might also emerge ready to practice if allowed to study under a competent attorney.  I’m not supposed to tell you any of this.

I have applied for several positions, academic and administrative, at a variety of law schools of late.  I am hoping my experience will give me an advantage.  One would think it was.  I make a particular point to explain that I want to help as many young people as possible actually prepare for the racket….er…profession.  Oddly, many law professors have never practiced law a day in their lives, many aren’t even members of a bar.  It makes sense, in a way, as law school has absolutely nothing to do with practicing.  That evil bar exam (truly a horror worthy to justify the myths) has nothing to do with school or practice either.  Like the schooling, it’s just there – an unavoidable obstacle to tackle.

Law students become attorneys disillusioned, in debt, unprepared, and in today’s market, with slim job prospects.  Most new attorneys today, who can find a job, earn less than $60,000 per year.  The big bucks go to the elite few who land jobs with major law firms.  At those firms, newbies (with all the problems I mentioned) can start at $150,000 or better.  For that pay, they have to “bill” 2500 hours a year.  Billing 2500 means working 4000; that means working 80-100 hour weeks, every week, for about $30-$40 per hour.  Tucker gives examples of jobs that pay that well, don’t require all the time and hassle, and don’t necessitate wasting 3 years in law school.  Remember, those are the best of the best jobs.  Most big firm associates wash out quickly or else end up in mental institutions or under bridges.

lawyer

(Welcome aboard, young associate.  Google Images.)

Ponder what I have written here if you think you want to join the lawyer club.  Some people are meant to be attorneys and will do well at their chosen work.  Most will drudge on miserably until the retire, die, or go nuts.  Some, like me get out.  Well, I’m trying to get out.  Leaving the law can be like leaving a street gang.  You have to walk a gauntlet to exit.  Please pray I make it.  As for you, avoid the whole racket if you can.

PS: I issue a challenge to all attorneys and law school faculties!  Change the system!  Concentrate on the theory and the practice of the law itself and dispense with the case worship, the obsolete mysteries, and the false illusions of nobility.  For you, read Alan Watson’s The Shame of American Legal Education, 2d ed. (Vandeplas Publishing, 2006).  Watson, of Scottish legal training, nails the problems of the American system.  Let’s change it.

Perrin Lovett

perrinlovett@gmail.com

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