Electric youth

David Auburn’s Proof posits that mathematicians supposedly are at their peak of ability around 25. If you haven’t done some great math by then, supposedly you almost certainly never will. Michael began recording Thriller at 23. He asked rock star Eddie Van Halen, 27, to perform the guitar solo for “Beat It”. When Jim Morrison was 23, he performed “Light My Fire” on The Ed Sullivan Show; he died at 27. Madonna, who was born 13 days before Jocko, released her two biggest albums before she turned 29. John wrote “Help!” when he was 24. Paul wrote “Yesterday” that same year. He was 22. The Beatles broke up the year John turned 30. Steve Jobs founded Apple Computer at 21. When he was 30, he was ousted by the board. (Apple brought Jobs back when he was 41.) Bill Gates, who is eight months younger than Jobs, started Microsoft the same year Apple was founded. Walt and Roy formed Disney Bros. Studio when Walt was 22. Mickey Mouse appeared in Steamboat Willie in 1928, when Walt was 27. Michelangelo created David between ages 25 and 29 (but he painted the Sistine ceiling from 33 to 37). Picasso developed cubism in his twenties (but painted La Guérnica in his fifties). And that’s without bringing sports into it. (Rafael Nadal is 23; Roger Federer, 27. And there’s the whole thing about the NBA recruiting high school kids.) Oh, and Auburn wrote Proof in his twenties. Feeling a little unaccomplished? Me, too.

If you’ve read Outliers then you know that to be really excellent at anything, you need to practice it for a minimum of 10,000 hours. (Gladwell writes about The Beatles and Jobs and Gates and gives other examples.) If you combine Proof’s premise that whatever greatness you have will at least begin to blossom in your twenties with Gladwell’s observation that practice (and only practice) really does make perfect, then the huge salary gap between first-year associates at mega-firms and, say, new state public defenders begins to make some economic sense. Assuming no time off between college and law school, the youngest lawyers are about 25 when they finally pass the bar. Twenty-five is old to be doing anything for the first time; there’s not a minute to spare. To do immediate hands-on lawyering, you generally have to work as an assistant D.A. or public defender—jobs that pay so little as to make your parents wonder why you even went to law school. Instead of money, you get experience. Mega firms, on the other hand, pay young attorneys obscene salaries in lieu of experience. New associates “review documents” or watch senior associates fumble through their first depositions. Firms pay you to forego any dreams of spectacular individual achievement and become part of the hive. (Yes, yes, I know. Like the Borg. There, I said it.)

Thurgood graduated from Howard Law at 25. He won his first major civil rights case at 28 and was arguing in the Supreme Court at 32. If some giant Wall Street firm had offered him a kajillion dollars to do document review, would Brown v. Board have gotten off the ground? Wouldn’t that be like Michael Jackson spending his career singing and dancing in Broadway choruses?

The best thing law schools can do for their students is figure out how to graduate them earlier. Hell, if either Gates or Jobs had finished college, I’d probably be writing law review articles on something like a TRS-80 Model III with WordStar. Washington and Lee has already conceded that a third year of lectures is unnecessary. It scrapped the traditional third year in favor of experiential learning. (They promise their students “will be ready for practice from day one.”) At the same time, six-year B.A./J.D. programs are proliferating. Competition will continue to exert pressure to eliminate the third year. Frankly, I don’t see why you couldn’t produce a well-rounded lawyer in five years of higher education. That seems like plenty of book learning to me.

Facebookalomania

Bozeman, Montana, made headlines this week when someone discovered that “The Most Livable Place” (seriously, that’s its motto) was requiring job applicants to provide their Facebook, YouTube, Google, and other account passwords. The most obvious problem with this is that there’s no point. Doesn’t everyone in Bozeman know all the dirt on everyone else in Bozeman already? The other problem with this was that everyone in the free world with a keyboard denounced this as a threat to the American Right to Privacy®—the one enshrined no where in the National Archives. The Bozeman city attorney was quick with the reassuring comeback: “One thing that’s important for folks to understand about what we look for is none of the things that the federal constitution lists as protected things, we don’t use those.” So, what’s the problem, ACLU?

Shortly after we cover Katz in criminal procedure and the whole the-Fourth-Amendment-protects-privacy heresy is firmly inculcated in the 1Ls, I explain how we’re going to spend most of the semester talking about privacy. In other words, they will be asked to think seriously about something that they routinely eschew and deprecate. I’ll then casually talk about stuff I saw on the Facebook pages of the very students sitting in the room: the dancing on the tables at Opa (how can people eat off those?), the drunken PDAs, the borderline-soft-porn obligatory beach bikini poses, the keg-stands, the occasional bong hit, the two thousand Halloween party pictures (only in Miami is “half-naked” considered a legit costume), their favorite books, movies, hobbies, and “causes”. And they’ll all get this panicked look on their faces, terrified that I’ll start naming names or maybe put some pages up on the projector (I swear one year I’m going to do that)—a reaction I don’t comprehend at all since they presumably wanted attention. That was in fact the whole point, no?

Remember the ’70s ritual of being invited over to dinner at someone’s house and having to look at vacation slides? And how the very phrase “vacation slides” became synonymous in TV sitcom parlance with torturous, self-involved tedium? Facebook is a perverse, twisted hyperextension of that captive-slideshow mentality. My own totally unsubstantiated theory about why Facebook and Twitter and all that other “social” crap is popular is that the paparazzi-fueled tabloid media have given everyone delusions of being interesting. Everyone wants to be a pseudo-celebrity, with her photographs, videos, friends, turn-ons, travels, etc., out there for everyone to see. But it’s like I used to tell my teenage cousin, who at one time would waste so many hours fussing with her page as to make one rethink child labor laws: “The only people who might read your page are people who already know you and perverts.” I suppose if you care what the Jonas brothers’ first names are or whether the Olsen twins killed Heath Ledger, then you’re soft-headed enough to believe that six hundred of your snapshots are similarly fascinating.

Whatever the cause, I think it heralds more or less the unraveling of Anglo-American civilization—especially now that this contagion has spread two generations up. When I interview potential research assistants, I don’t ask for passwords but I do check whether they maintain a Facebook page. (Yes, I have a log-on. No, I don’t want to be your “friend”.) I’ve met a tiny number of 20-somethings who realize Facebook is a waste of time and don’t have a page. Huge plus. Shows good judgment.

Oh, for whatever it’s worth, Bozeman backed down. I think they’re only showing weakness.

The term’s big case

It’s unthinkable that Bob or Felix or Thurgood would start an opinion with this: “The plaintiff in this case is a small utility district raising a big question—the constitutionality of § 5 of the Voting Rights Act.” What follows that insipid kindergarten-teacherish flourish is a meandering reflection on the Voting Rights Act‘s intricacies, its history, and its possible unconstitutionality. The only point of this tedious aside seems to be to signal that one day the Court might find the political courage to strike that law down—but not today. Then finally we get to section III, which offers some straight-up statutory interpretation that everyone (except Justice Thomas who wants to strike down the Act) can live with.

If you’re going to avoid a constitutional question, then avoid it. Don‘t go on and on about it.

Opinion spoilers

One of the ways to get law students to read cases more closely and more critically is to ask them to find the first sentence in each opinion where they are certain which way the court is going to go. Justice Stevens, for example, gave away Yeager v. United States in the first two sentences:

In Dunn v. United States, 284 U. S. 390, 393 (1932), the Court, speaking through Justice Holmes, held that a logical inconsistency between a guilty verdict and a verdict
of acquittal does not impugn the validity of either verdict. The question presented in this case is whether an apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts affects the preclusive force of the acquittals under the Double Jeopardy Clause of the Fifth Amendment.

If you ipse dixit Holmes right from the get-go, there’s no need to bother with the next sentence—“We hold that it does not.”

The faster you can name-that-tune a case, the more in tune—that was inadvertent, really—you are with how the opinion hangs together and with how persuasive or logical it is. Civil cases are often more opaque but not always. Sometimes they start out crystal clear, like this one that the Eleventh handed down a few days ago:

The issue in this appeal is whether the district court erred when it granted a surety’s motion for new trial after the jury found the surety settled a claim in bad faith.

Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., (11th Cir. June 16, 2009). A jury already decided that you’re bad. Why should we need to ask another jury? You’re bad. Case closed.

Some criminal cases can keep you guessing. But when the opinion begins with a pithy summary of the crime of conviction without any reference to any legal issue, the writing is on the wall for the defendant-appellant. Some recent ones where the court basically rules in one sentence:

Defendant-Appellant Donatos Sarras appeals his convictions and sentences for persuading his minor step-daughter to engage in sexually explicit conduct for the purpose of producing photos of such conduct and for knowingly possessing child pornography.

U.S. v. Sarras (11th Cir. June 16, 2009). I think I know how that one ends.

The main question presented by this appeal involves the reasonableness of the sentence of a young adult who was arrested in a sting operation that involved the armed robbery of a fictional stash house of cocaine and who later threatened a witness who testified against him.

U.S. v. Docampo (11th Cir. June 15, 2009). I was almost thrown off by “young” and “fictional”. Almost.

The main question presented by this appeal is whether a person who alters records that have been subpoenaed by a grand jury obstructs an investigation of Medicare fraud.

U.S. v. Hoffman-Vaile (11th Cir. May 27, 2009). Well, that seems almost tautological when you put it that way.

At the time of his arrest in 2004, Defendant-Appellant Gregory C. Kapordelis was an anesthesiologist who practiced medicine and had a home in Gainesville, Georgia. His sexual exploits with underage boys, however, took him far from Gainesville, across state lines and around the world.

U.S. v. Kapordelis (11th Cir. June 1, 2009). Technically, two sentences, but the stuff about him being an anesthesiologist was really just gilding the lilly.

Absolute genius

We have a new sex scandal, which is a big relief because no one’s mentioned Father Television for days. I mean, what are we supposed to talk about? Iran? North Korea? The new iPhone software that comes out an hour from now? To be honest, I’m not really interested in these sordid imbroglios except insofar as they provide occasion to reflect on the higher truths and greater ramifications of our choices. For this, we turn to our artists. So, I’m sitting in my office with Naughty By Nature’s “O.P.P.” set to loop. This song is absolute genius. It’s up there with The Beastie Boys’ “Brass Monkey” and Rogers and Hammerstein’s “The Lonely Goatherd”. (Is there any chance that “Goatherd” was written without the use of mind-altering drugs?) I was reading Hamlet over breakfast today and, I’m telling you, “O.P.P.” is every bit as good.

Sum of all human knowledge not as fun as IM

The other night I was up late writing a brief, and I heard this noise on the other side of the house. Surprisingly, it triggered a 30-year-old memory I didn’t even know I had of the sound of a window breaking. Only not a real window. And not a real sound. An electronic sound effect of a window breaking. I had a vague sense that it was from some game I played as a kid. Was it a video game? Which video game? No, wait. It was a board game. A board game? That doesn’t make any sense. How could a board game have had sound effects? In the ’70s? And so it went until it slowly came back to me. Obviously, I put the brief aside and began to google—N.B. I think this is not capitalized when used as a verb, right? Is there even such a thing as a “proper verb”?—because I had to track down this ’70s wonder toy. And behold: Some guy has a whole awesome webpage about it that even has all the sound effects. So I’m not crazy.

Back in say, 1985, if I’d wanted to find the same information, the only way to do it would have been to ask a bunch of friends whether they remembered anything like this. Or maybe go to a lot of garage sales. Or look in the card catalogue for a book on old board games. I don’t know. The point is it that I couldn’t do it at three in the morning without even moving from my chair.

Ensign Chekov, while macking on some alien, foretold the Internet on an episode of Star Trek and it sounded utterly fantastic: “What I do not know I find out from the computer banks. If, if I knew nothing at all, I could navigate the ship simply by studying what is stored in there. They contain the sum of all human knowledge.” And Star Trek looks like The Flintstones compared to what we have today. The more prophetic aspect of the episode may be that my students exhibit the same blasé insouciance toward this astounding agglomeration of knowledge as Chekov did: Yeah, babe, it doesn’t much matter whether I know how to aim the photons or whatever because I can always just google it. More than once every semester, we’ll come to some legal-Latin term or ancient allusion that in prior semesters has been unfamiliar to most. So, I’ll ask what it means and get 100 looks of polite perplexity peering over 100 laptops that are right then wirelessly connected to everything you could want to know. And they will sit there waiting for me to tell them what it means. Then I’ll do the Exasperated Eye-roll® that one of the SDFla judges and I have competing trademark claims on and say, “Why don’t you ask that box in front of you?”

“Knowledge is of two kinds. We know a subject ourselves, or we know where we can find information upon it.” Sam Johnson wrote that. (Wikipedia has a page on him, if you’re curious.) Now that we walk around with entire libraries in our pockets, it’s easier to get along while knowing less. (E.g., the other day I was without my phone, and I couldn’t call a close friend with someone else’s. I didn’t forget my friend’s number. I’ve never known it. I’ve never had to.) Maybe, having been reared with the Internet at their disposal, the millennials have internalized what Chekov said. Now that practically everything is readily knowable, why bother knowing anything you don’t need to know? That was Holmes’ take (fictional Holmes, not juridical Holmes) on the whole will-this-be-on-the-exam issue when Watson was all aghast that Holmes didn’t know the Copernican theory: “‘What the deuce is it to me?’ he interrupted impatiently; ‘you say that we go round the sun. If we went round the moon it would not make a pennyworth of difference to me or to my work.’” The New Jersey Supreme Court was more sardonic and impassive than Watson: “A court will in general take judicial notice of and apply the law of its own jurisdiction without pleading or proof thereof, the judges being deemed to know the law or at least where it is to be found.”*

*Leary v. Gedhill, 8 N.J. 260, 266 (1951)

Captain Kirk was a square, not a hippie

If you were interpreting a statute called the Racketeer Influenced and Corrupt Organizations Act, wouldn’t you think that it targeted bad organizations? Would the fact that it were enacted as part of the Organized Crime Control Act further persuade you? Justice Alito’s opinion for the Supreme Court this week takes the “O” out of RICO, turning it into something like the Bad Groups Act. (The Black Eyed Peas should get life.)

[A]n association-in-fact enterprise is simply a continuing unit that functions with a common purpose. Such a group need not have a hierarchical structure or a “chain of command”; decisions may be made on an ad hoc basis and by any number of methods—by majority vote, consensus, a show of strength, etc. Members of the group need not have fixed roles; different members may perform different roles at different times. The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies. While the group must function as a continuing unit and remain in existence long enough to pursue a course of conduct, nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence. Nor is the statute limited to groups whose crimes are sophisticated, diverse, complex, or unique; for example, a group that does nothing but engage in extortion through old-fashioned, unsophisticated, and brutal means may fall squarely within the statute’s reach.

Under that careless and squishy definition of “enterprise,” a more venerable term than the majority appreciates, Alex and his three droogs, that is Pete, Georgie, and Dim, Dim being really dim, would be organized crime. So would the crowd at Woodstock. Poor Justice Stevens has to bust out his keyboard and peck out a rejoinder, pointing out that even Webster’s Third—which (no surprise) is Alito’s dictionary of choice—includes the pertinent definition if you bother to read the entire enumerated list:

It is clear from the statute and our earlier decisions construing the term that Congress used “enterprise” in these provisions in the sense of “a business organization,” Webster’s Third New International Dictionary 757 (1976), rather than “a ‘venture,’ undertaking,’ or ‘project,’” ante, at 6 (quoting Webster’s Third New International Dictionary, at 757). First, the terms “individual, partnership, corporation, association, or other legal entity” describe entities with formal legal structures most commonly established for business purposes. In context, the subsequent reference to any “union or group of individuals associated in fact although not a legal entity” reflects an intended commonality between the legal and nonlegal entities included in the provision. “The juxtaposition of the two phrases suggests that ‘associated in fact’ just means structured without the aid of legally defined structural forms such as the business corporation.” Limestone Dev’t Corp. v. Lemont, 520 F.3d 797, 804–805 (CA7 2008).

When I read one of his dissents, I imagine Justice Stevens as being forlorn to retire and just go fish or hang out or whatever—but knowing he can’t.

UM alum and the Southern District vacancies

Interim U.S. Attorney Jeffrey Sloman (JD ’83) is the only UM Law alum applying for his job. As expected, the Ivy League three—Curt Miner of Colson Hicks Eidson, David Buckner of Kozyak Tropin Throckmorton, and Wilfredo Ferrer of the Miami-Dade County Attorney’s Office—threw their hats into the ring. And, as you can see, they all have really cool hats. Having had cases opposite all three, I would have a hard time picking among them. Each would be superb.

We have four contenders trying for Judge D.T.K. Hurley’s seat. There’s our inimitable Federal Public Defender, Kathleen M. Williams (JD ’82). Kathy is a regular visitor to my classes, most recently making a special alumni appearance in last semester’s criminal procedure with two other former AUSAs, Magistrate Judge John J. O’Sullivan (JD ’85) and Judge Adalberto Jordan (JD ’87).

[Photo credit: Steve Schlackman (JD ’10)]

Miami-Dade Circuit Judge Mary Barzee-Flores (JD ’88), formerly an Assistant Federal Public Defender in Kathy’s office, has applied. Magistrate Judge Robin Rosenbaum (JD ’91) and SEC attorney Robert K. Levenson (JD ’96) are also in the running. This would be the fourth seat in the district for UM Law, after Judge José Martinez’ (JD ’65), The Chief’s (JD ’78), and Judge Jordan’s.

Iconic U

The other day I called UM’s printer to order new business cards. They told me to hold off because the university was about to create a new graphic identity. Since I used the iconic U rather than the university’s ugly logo (right) on my mock-up, I was afraid that they were implying that the U was to be banished. It wouldn’t be the first time they try. A few years ago, Nike designed some inscrutable thing that it was feared might replace the Split-U. Anyway, good news. The university is embracing the U in the new logo.

After living with it for a day, I’m not sure I’m a fan of the new design. Of course, I couldn’t be happier that the U is going to be plastered everywhere. I did graduate from here back when we won national championships in the Orange Bowl and all. But it seems that we spent an inordinate amount of money to convince the decision-makers of what the alumni already knew—that we all like the Split-U. Here’s what the university said in its email today:

Our bold new look is perhaps the first time an academic and health institution uses a symbol of its celebrated athletics program.

The new identity was developed by the University Communications staff with assistance from Lipman Hearne, the national firm that consulted with the University on the award-winning communications for the $1.4 billion Momentum campaign. We conducted research on the new identity last spring, including focus groups in three major cities and an alumni survey. All affirmed the positive attributes of our split-U “spirit” mark—which is perceived as diverse, modern, confident, and bold—and the benefits of adapting it as a mark of pride for the entire institution.

Sounds expensive, doesn’t it? The problem I have with the new look is that it does not utilize an arresting typeface that works with the U. Instead, it consists of nothing more than “UNIVERSITY OF MIAMI” typed out in Century Schoolbook. Century Schoolbook is ubiquitous. It is used in hundreds of elementary- and high-school textbooks and in Supreme Court slip opinions. In fact, anything filed with the Court must be in Century Schoolbook. The font is great for text, but it’s not a great titling font. There are better choices out there for an institution not committed to designing its own signature font. And I don’t understand the logic to the identity. Why did they lowercase the second “of” but not the first? Am I alone in finding this distracting? More to the point, why are they using capital letters in a font designed for text rather than titles? And why is the U way down there?

Moreover, the consultant’s handbook prescribes that stationery and business cards will employ Frutiger (a/k/a Adobe Myriad Pro), which is what Apple uses for its text. Because of its iPod and Mac association, the font has (for now) a modern feel. But it is also, thanks to Apple, everywhere, and its use by any concern other than Apple risks appearing derivative.

Typography is a serious matter. While I doubt anyone is going to clamor for the return of the logo we had, I’m not blown away by its replacement. At least the U won out.

Deaning isn’t like terrorizing Apple engineers

“What kind of person could you get to run a small business if you told them that when they came in they couldn’t get rid of people that they thought weren’t any good?” Apple CEO Steve Jobs dropped that rhetorical question two years ago at an education summit in Texas as a criticism of teachers’ unions. “I believe that what is wrong with our schools in this nation is that they have become unionized in the worst possible way,” Jobs said. “This unionization and lifetime employment of K-12 teachers is off-the-charts crazy.”

Alex Acosta’s appointment as dean of FIU’s College of Law gave the bar and the academy occasion to reprise the “practical experience” vs. “scholarly credentials” debate. This happened during UM’s very recent dean search(es) as well when Raoul Cantero’s name surfaced as a potential candidate. Each school is now spinning its pick along the same lines. UM touts our new dean as “a nationally known leader in legal education” while FIU touts its new dean as having “connections at the national and local level.” This all makes as much sense to me as, “Tastes great!” “Less filling!” No one really picks a dean (or a beer) for these reasons.

Asking to be dean of a law school strikes me as being a bit like wanting to herd cats. Neither any amount of practical experience nor any number of celebrated opaque law-review footnotes is going to prepare you for it. Worse, Acosta is going into the deanship, I understand, without tenure. Of course, even with tenure, a dean can be toppled at any time and then they often leave. For someone who had little to do with higher education, Steve Jobs understands this better than you might think.

I am not, by the way, making any kind of an argument against tenure. Tenure means freedom to push the boundaries of one’s abilities and intellectual curiosity. So that you understand how I feel about mine, here’s a little vignette that encapsulates my years of practice leading up to my current gig: