The power of positive thinking

So, this particular study-abroad trip wraps up with a four-day Mediterranean cruise aboard the MV Aquamarine, a ship that is a few months older than I am and which in a former life cruised out of the Port of Miami. During yesterday’s class in the ship’s disco (unnervingly located underneath the basketball court), one student began to meekly whisper her answer to a question with the phrase, “I believe that …” This is something I emphatically discourage on the grounds that, if you speak that way to clients or opposing counsel or judges, they will naturally assume you don’t know what you’re talking about. (By the way, meek student was right on the money with her reticent answer.) A couple of other students later questioned my premise over beers since we’re all trapped together and there’s no where to go and nothing left to talk about. I didn’t have to respond because another few students forcefully rejoined and said more or less what I would have said if I could find the energy.

When we docked at Rhodes this morning, I headed straight to Starbucks guided by nothing more than my experience in American shopping malls. The Nike swoosh and the United Colors of Benetton pointed the way. Once I got to the international house of free wi-fi and coffee, I found that science and Gladwell are both on my side on this one. This also answers the question of why the best lawyers are not necessarily the richest lawyers.

In the home stretch

We had a death-defying bus ride yesterday over narrow roads through tiny villages to reach Καλάβρυτα. The swath of road is sliced out of a mountain range, and our giant tour bus grazed the edge around each hairpin turn. I arranged this unscheduled sojourn away from moral relativism and complacency with the substantial help of our Klingon guide and her fearless helmsman. Quite a ride. The kids were all appropriately terrified, except for the one who has taken it upon herself to videotape every moment.

“Will you please sit down so you don’t fall on the driver and kill us all?” one student asked the videographer.

“Are you scared? Maybe you should have stayed home if you were so scared.” Notwithstanding her sass, she sat down.

Just before our trek to the dark side, I discovered that the U’s law journal contests begin on Friday. (I know, I know. This shouldn’t happen.) Had we stuck to the prescribed schedule, there is no way anyone on my away team would make it onto a law journal because class is supposed to end on Monday. I’m not having that. We’re already ahead of schedule and, despite the stresses of moving around, the class is set to power through for the sake of the half-dozen or so law-journal hopefuls.

We’re making Elements even more mystifying

Our guide in Greece is deeply into Star Trek. I’m pretty sure she speaks fluent Klingon. She was able to reassure the kids that I’m right when I say Deep Space Nine drew parallels with the German occupation of France. We crossed over from Italy a couple of days ago. They told us it was a ferry. And maybe it is. But it’s also a freighter. We had to share it with two semis packed with cattle and with a band of pushy gypsies among other cargo and itinerants. I’ve never before had to board any transportation through a cargo bay behind a throng of teenage backpackers. Not even when I was a teenage backpacker. But that’s exactly what happened:

Things are better now. Today was party-boat day. The kids are heavily into the class, and a bunch of them were so engrossed by Justice Jackson’s recap on Nuremberg that they couldn’t help but do a little tan-and-read. And why not? I plan to grade their exams on a boat so they may as well prepare the same way.

Back on the homefront, it seems as though my prediction was on the mark and that the incoming class is still really, really large. In what is perhaps an effort to winnow it down a bit, the Powers That Be a few days ago sent the Incomings an email describing the varying approaches to Elements that different sections will face and inviting expressions of preference. Money quote:

There are, you can see, quite a few differences to consider: a substantial paper or a final examination, individual projects or common materials, single focus or changing topics, in-class development or supervised but largely independent work, etc. … This will strike some of you as a choice too complicated to work through easily.

Indeed. This may well be more effective than the $5,000 scholarship.

12-4-6

You no doubt know, thanks to D.O.M.’s exhaustive team coverage, that alumna Kathleen Williams, along with Florida circuit judges Robert Scola and Jerald Bagley, made it to the Final Three in the contest to become the next SDFla judge. Judges Scola and Bagley both teach in our litigation skills program, but went to BC and Rutgers respectively for law school. I researched how these schools stack up using my Westlaw account over the painfully slow Internet connection at our hotel on the outskirts of Rome. This place does not even show up on the maps the tour company provides the kids so they can find their way back. Our guide said the hotel would be in square “F-minus-two” if it were on the map. Still, there was a more or less adequate conference room for class (pictured).

And our guide did lead us at my request onto a train, the subway, and a public bus to see the site of a brutal Nazi reprisal for an act of Italian resistance. I’m not sure what happened to our big pink bus. It was a little bit like beaming down and finding the Enterprise has left orbit.

Anyway, this is the score of Article III judges by school:

12 Rutgers (Newark):
Robert Cowen, Third Circuit (senior)
Raymond Acosta, DPR (senior)
Renee Bumb, DNJ
Robert Kugler, DNJ
William Martini, DNJ
Freda Wolfson, DNJ
Harold Ackerman, DNJ (senior)
Joseph Rodriguez, DNJ (senior)
Eduardo Robreno, DPa
Barry Moscowitz, SDCali
Judith Barzilay, CIT
Thomas Auilino, CIT (senior)

4 Boston College:
Edward Harrington, DMass (senior)
Paul James Barbadoro, DNH (class of 1980, same as Judge Scola)
James Redden, DOr (senior)
Ellen Segal Huvelle, DDC

6 UM:
G. Wix Unthank, DKy (senior)
John Houston, SDCali
Federico Moreno, SDFla
Adalberto Jordan, SDFla
José Martinez, SDFla
Kenneth Ryskamp, SDFla (senior)

If we count Judge Gold, who got an LL.M. from UM, it’s seven. But I think that’s cheating.

Rolling with it

I know what you’re thinking. You’re thinking that teaching 45 law students about Nazi aggression and genocide on a giant pink bus as we tumble over Tuscany can’t be effective. You probably think that you can’t have school without fancy projectors, Macbooks, and desks. But trust me, schools operate under worse conditions than these. All you need is a love of learning. I mean, The Partridge Family rehearsed on a bus, and they had a No. 1 single in 1970. Tomorrow we are going on a field trip to the site of a Nazi war crime.

Taking it on the road

As if my job weren’t hard enough, now I have to do it on a bus. I spent four hours rocking Socratic on the IMT, the IMTFE, the ICTY, the ICTR, the ICC, and plain old regular domestic criminal law. Somewhere between Florence and Pisa we had a long digression about how the Nazis almost won the war and that WWII was a little different in scale and such from the wars that CNN has been showing since the class was born in the 1980’s. Which is why Churchill wanted to just line the Nazis up and shoot them rather than staging the whole Nuremberg thing.

After a five-year hiatus, I signed on to do the study abroad program again. I have the same feeling Judy Benjamin had when she joined the army after her husband’s heart attack: It’s not exactly what I expected, but eventually everyone will learn to do things my way and we’ll be okay. The difference of course is that Private Benjamin had no idea what she was getting into and I pretty much should have.

Anyway, all week it’s been gondolas, Nazis, cathedrals, hutus, leaning towers, Croats, and so on. Oh, and I saw the most surreal thing in Venice: this eerie sculpture of a frog dangling from a giant naked kid standing next to an armed guard. I don’t understand this art at all. It has me feeling quite unsophisticated.

Day of reckoning

Today was the deadline that the Dean Designate set for accepting the $5,000 scholarship to defer law school for a year. When I first read about it, I was worried that the offer would appeal primarily to those who might want to start the admissions process from scratch, knowing they at least had this in the bag, i.e. those who are most competitive. But the Powers That Be thought ahead. If you have a scholarship of some sort, you lose it by deferring. So, you wouldn’t have $5,000 plus whatever other scholarship you had. You would have only the $5,000. To even be tempted by the offer, you have to be among those admits paying full tuition. I have a feeling there are not going to be very many takers.

Muy loco judice

Thus, in the majority’s view, although the school officials had reasonable suspicion to believe that Redding had the pills on her person, they needed some greater level of particularized suspicion to conduct this “strip seach.” There is no support for this contortion of the Fourth Amendment.

Yep, that was Clarence writing all on his own a couple of weeks ago. He believes—quite strongly—that schools stand in loco parentis and that courts should not interfere with their enforcement of rules. So, looking in the underwear of two 13-year-old girls for prescription Ibuprofen raises no constitutional issue in his mind. This is not a surprise. It is just a baby-step from Thomas’ holding for the Court in 2002 that school districts could condition membership in the band on successful urinalysis testing. Justice Ginsburg dissented on the grounds—I swear this is true—that band nerds are least likely to do drugs. (She had little problem requiring school athletes to pee in cups back in 1995.) So, first they came for the athletes, then the band nerds, and now they’re reaching into little girl’s undergarments. Forced to pick between a world where some kids use drugs and one in which middle-school kids can be strip-searched, a majority of the Court finally began to come around to the idea that totalitarian enforcement methods may in fact be worse than recreational drug use.

These cases with school employees becoming drug enforcers disturb me more than any others I have to teach. I have a hard time imagining the sorts of places that spawn these horrid litigations—places like Safford, Arizona, (pop: 8,932 and falling) and Tecumseh, Oklahoma, (pop: 6,098) and Vernonia, Oregon (pop: 2,340). I suspect (or hope) that federal education funds are tied to proof of solid anti-drug credentials. Otherwise, America’s small-town schools are just crazy.

Can you imagine growing up in some isolated place where you and all your friends have to hand your homeroom teacher your urine? It makes the tiny town from Footloose look permissive. What is even more chilling is that when I ask the hundred-odd first-years in crim pro whether they had to pee in a cup at their schools, about half of them raise their hands. Children are growing up in America thinking that it’s perfectly normal for schools to require urine samples. The ’70s were nothing like this.

Judge bans ignoramus’ Holden Caulfield fan-fic

Fordham law professor and U.S. District Judge Deborah Batts granted recluse J.D. Salinger an injunction against some Swedish guy’s novel about a 76-year-old Holden Caulfield. The fan-fic author was quoted by the Times: “Call me an ignorant Swede, but the last thing I thought possible in the U.S. was that you banned books.” Dude, you are a totally ignorant Swede. Why don’t you go try to sell a Mac-clone computer, you derivative biter, and see what we do to you then?

Part C.1.ii of the decision is where Judge Batts has to explain why the Swede’s sacrilegious stab at a sequel is in fact not at all parodical. Demonstrating that the offending novel was not transformative required a careful look at the original and the knock-off, and Judge Batts demonstrates why critical thinking is, well, critical. To support this factual finding:

Furthermore, it is equally apparent that J.D. Salinger was aware of, and indeed emphasized the fact that Holden’s uncompromising authenticity was at least partially responsible for his failure to ‘grow up’ and become a fully-functional adult with the capacity for mature relationships.

Judge Batts cites several passages from Catcher including Holden’s thoughts on “a profession he would enjoy”:

[A]lthough “[l]awyers are alright” he would not want to be one because “[e]ven if you did go around saving guys’ lives … [h]ow would you know you weren’t being a phony? The trouble is, you wouldn’t

Yes, indeed. This is what you imagine federal courts do, rather than just processing Title VII and drug cases like cans of tuna.

And, of course, it’s the right result. I mean, is nothing sacred? Thankfully, it (so far) never occurred to anyone to attempt The Breakfast Club II or Ferris Bueller’s Spring Break. If you mess with a classic, you’re more than likely just going to end up making New Coke. What Joseph Heller did to Catch 22 when he wrote Closing Time in 1994 is a perfect example of such a traveshamockery. If you’ve never read that sequel, then lucky you. Forget I even mentioned it.

Act now! Operators are standing by

Today is lasagna day at Bugatti in downtown Coral Gables. By 12:10, the sidewalk outside will look like the Bailey Building & Loan during the panic, thick with folks clamoring for a serving of the once-monthly entrée. No promises, though. Bugatti sometimes runs out.

Our situation is a little trickier. The news is out now that we had a huge number of admits submit deposits for next year. How huge? Yesterday, the incoming received an email from the Dean Designate offering a credit of $5,000 to those who defer law school for a year and do good deeds. The Powers That Be set up a question-and-answer page on the website with the particulars. I know, I know. I’ve been holding out on you. But only because I was hopeful that a plan to deal with this might be in the works. These are delicate and tumultuous times.

Since we can’t just say, “We’re out of lasagna; try the chicken parm instead,” this plan seems at least as good as George Bailey’s—and that all worked out in the end. More or less. Encouraging public service is a good idea, as well. Speaking of which, Kathleen Williams (’82), Judge Mary Barzee-Flores (’88), and Magistrate Judge Robin Rosenbaum (’91) made the interview list for the vacancy on the Southern District of Florida bench. Interim U.S. Attorney Jeffrey Sloman (’83) will interview to keep the job on a non-provisional basis.