Monday, May 17, 2010

Ah, the End

I graduated yesterday. Phew. Three years + 87 credits = 1 law degree. On a magnificent Sunday afternoon in Williamsburg, all the work, fun, and enlightenment of law school culminated in a wonderful commencement ceremony on the Sunken Garden, in the heart of the undergraduate campus of William & Mary. Sandra Day O'Connor gave the keynote address, advising the graduating class of 2010 to do public service and as lawyers, to "disagree agreeably," a fine piece of wisdom. Her speech and presence (she's the Chancellor of W&M) delighted us all, as evidenced by the bursting of flash bulbs when she took the podium.

There is much I will miss about this place, and about law school. First and foremost, the people. The friends I've made here are incredible people, and I am truly, decidedly excited to see how their futures develop. The moment commencement ended, we began fanning out all over the country, from D.C. to Dallas to L.A. to Portland, and many places in between. Of course a good chunk of us will stay in Virginia, even in Williamsburg for the summer to study for the Bar, as I will do. I will also miss the professors and other staff at the law school, who have added so much to this experience. Several professors have done so much for my friends and me that I can hardly express sufficient gratitude. Well, if you're reading, thank you.

So, what next? It's still up in the air. After the Bar, I'll work at a public defender's office in northern Virginia for at least ten weeks. Then there are several possible directions. I've interviewed for a job in Richmond that I should hear about soon, or I could find my way into a PD's office, or I could do something else entirely.

Wherever I land, I'm excited to be done, and to move on to the next phase of my life. Goodbye, Burg Law.

—Rob, J.D.

Saturday, April 17, 2010

Finally, a Bar decision

After many months of deliberation, a pros and cons list that took about a dozen states into account, and after interviews for jobs in New Hampshire, Colorado, California, and Virginia (with one more in Wisconsin yet to come), I have decided to take the Virginia Bar this summer. This was one of the hardest decisions I've ever had to make. California still holds much appeal for me, but the job climate is so bad there—and getting worse—that I can't move out there in good conscience, knowing that it's entirely possible I could pass the California Bar, one of the two hardest in the country, and still not find a law job. I also thought long and hard about returning to the Midwest, perhaps Illinois, but having gone to school in Virginia and knowing more attorneys here, I have a much better chance of making connections that will lead to a job. (If I were to get the job in Wisconsin, I would have to take the February Bar there.)

There are many upsides to taking the Bar here, in addition to the connections I've made, which could lead to job opportunities that I might not have elsewhere. Some have to do with location: Virginia is a beautiful, geographically diverse state, with ocean, mountains, rolling hills and plenty to do outside. It's right in the middle of the East coast, seemingly just a few hours from everywhere. The weather in southern Virginia is terrific most of the year. It's also close to D.C., so if I were to get a job in the District, after passing the Virginia Bar I could waive into the D.C. Bar and practice there. There's also the fact that Virginia has the death penalty, and one of my greatest passions in the law is capital defense. And of course, many of my law school friends will remain in D.C. or Virginia.

The two biggest downsides are one, that I'll remain 1,000 miles from my family and friends in the Midwest; and two, the Virginia Bar exam. The latter requires me to learn things like Secured Transactions, Trusts & Estates, and Virginia Civil Procedure. Ugh. But of course, I hope only to have to take the Bar once. The family and friends part will be harder. I will continue to miss lots of birthdays, holidays and everyday life events. Without getting too emotional about it now, I'll simply say that it will be hard, and that I did not reach this decision easily. There was no right decision, only a choice to be made, and I was the only one who could make it.

So I'm committed to another two and a half months at my townhouse in Williamsburg. Starting May 24, eight days after graduation, I'll attend Bar prep class in the same room where I took Civil Procedure nearly three years ago, with some of the same people. Each day after class I'll come home to study, as if it were my job. In late July, I will drive to Roanoke, put on a suit—still a requirement in Virginia—and sit for the Bar exam over two grueling days. Then I'll wait, as will we all, for nearly three months, until the results are posted. This is the path to lawyerdom, the part they never told me about on Law & Order. Ah well. I'm ready.

One more paper, one more exam, then 3L year is done.

Wednesday, April 7, 2010

9500 Liberty

During the summer after my 1L year, I worked on a criminal case in Manassas, Va., and part of my job involved poring over news articles, letters, and blogs, searching for incendiary comments about illegal immigrants. Such comments were not hard to find. After decades as a sleepy, distant suburb of Washington D.C., Manassas — located about 30 miles from the Capitol — and the rest of Prince William County had turned into one of the fastest-growing counties in the nation. The demand for cheap housing labor had brought thousands of Hispanic immigrants to the area so that by 2008, the group comprised nearly 20 percent of Prince William County's population.

Change that quick does not come without conflict. The new film, "9500 Liberty," beautifully details the battle waged between "Help Save Manassas," a grassroots anti-immigration group, and the immigrants and their allies in the community over the span of several years. The film follows the actions of the Prince William County Board of Supervisors, which due to pressure from Help Save Manasssas, enacted one of the most stringent anti-immigration policies in the nation.

Last night one of the filmmakers of "9500 Liberty," Eric Byler, came to William & Mary for a screening of this outstanding documentary. Byler and his girlfriend/co-documentarian, Annabel Park, are also co-founders of Coffee Party USA, a movement formed in response to the often incendiary antics of the Tea Party. The Coffee Party has nearly 200,000 fans on Facebook, and I've heard Annabel on the Washington D.C. NPR station and seen her on CNN. Last month, the Coffee Party held meetings in 44 states, with an aim toward introducing civility into our political discourse. In her interview on NPR, Annabel spoke of the common grounds (NPR's pun, not mine) the Coffee Party shares with the Tea Party — both loathe corporate influence in government. But unlike the Tea Party, the Coffee Party believes that government has a significant and perhaps even a positive role to play, if we the people will only get involved in it.

The film's website does not say when "9500 Liberty" will be available, but last night a professor of immigration studies at W&M said that she had seen many movies on this issue, and this one was "fantastic." I agree. Check out the trailer here.

Sunday, April 4, 2010

The existential plastic bag

Sartre wrote that we are condemned to be free, forced all our waking hours to make choices that will decide our essence as human beings. He also wrote of the absurdity of our existence.
ab•surd•i•ty | əbˈsərditē; -ˈzərd- |
noun ( pl. -ties): the quality or state of being ridiculous or wildly unreasonable
Yes, for life on this planet, that sounds about right.

So it was with great pleasure that I encountered "Plastic Bag," a remarkable 18-minute short film by Ramin Bahrani and narrated by the great German director Werner Herzog. The protaganist is no ordinary plastic bag, but one with an existential crisis of epic proportions. This is a beautifully shot, poignant film about the environment (particularly the horrendous plastic vortex in the Pacific), but it is also a fun exercise in existentialism. Enjoy.

LAW NOTE: In response to your comment, Tony, several U.S. cities have passed ordinances banning plastic bags as well, including San Francisco and Los Angeles, and several others, such as Madison, require that plastic bags be recycled. No state has yet banned plastic bags (Virginia's legislature has killed such a plan, unsurprisingly). L.A.'s ban, which is set to start July 1, will not go into effect if California imposes a 25-cent tax first. China banned plastic bags prior to the 2008 Olympics in Beijing.

Friday, March 19, 2010

That Disturbingly Pleasant War Criminal, John Yoo

The W&M Law chapters of the Federalist Society and the American Constitution Society, along with the Institute of Bill of Rights Law, were kind enough to invite war criminal and Berkeley Law Professor John Yoo to campus yesterday, the last stop on his book tour. I don't fault them for wanting him to appear. Of course the author of the torture memos drew a packed room of more than 100, mostly law students, for a Thursday lunch lecture. People who are largely responsible for the atrocities at Abu Ghraib and Guantánamo Bay have a way of drawing a crowd.

As our way of showing discontent, a handful of us from the W&M Law ACLU wore t-shirts (see photo) and handed out Glenn Greenwald's comprehensive guide to John Yoo's War Crimes to those who attended the lecture. In case you don't want to read the entire article, here's a sampling of John Yoo's work:
If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions.
And here's Greenwald's tidy, accurate analysis:
John Yoo's Memorandum, as intended, directly led to -- caused -- a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush's White House counsel, Alberto Gonzales, and Dick Cheney's counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes.

If writing memoranda authorizing torture -- actions which then directly lead to the systematic commission of torture -- doesn't make one a war criminal in the U.S., what does?
Yoo, in his disarming way, diffused any possible tension by beginning with a story about his appearance on The Daily Show, and spending the remainder of the lecture discussing his new book on evaluating our greatest and worst presidents. In a room full of peers and professors, to accuse Yoo of the worst crimes imaginable — crimes he is almost certainly guilty of — would have garnered almost universal scorn. Still, I feel a pang of disgust with myself this morning. Instead of making such an accusation yesterday, I asked Yoo what would bring about an end to the war on terrorism, and which branch of government can and should make that call. He said that this is perhaps the toughest legal question, and suggested that much legal work remains to be done on how conflicts with non-state actors (i.e., terrorist groups) can come to a successful conclusion. (His answer, by the way, is that the President or Congress—not the courts—can and should make that call, but when and how that will happen remains a mystery.)

But it seems to me that a more difficult question looms: when will someone—whether a president, a member of Congress, or a third-year law student—muster the necessary courage to confront a war criminal like John Yoo and force him to accept responsibility for the reprehensible acts that have led directly to our diminished standing in the world? And will such a confrontation ever bring about the kind of justice we should expect here in the United States?

Sunday, March 14, 2010

Spinning the Globe

When I was a kid I used to love to play "spin the globe," always imagining that I would someday go to the places where my finger landed — Ivory Coast, Afghanistan, Palau, Uruguay. The more exotic sounding, the better. I'd alternate between putting my finger along the Tropic of Cancer and the Tropic of Capricorn before I closed my eyes and spun, not wanting to land in the Northwest Territories, Siberia, or Antarctica. Iowa was cold enough. The game was so central to my sense of adventure that when I left for college, I asked my mom for a new globe to take with me to my dorm room.

When I moved halfway across the country to Virginia I left my globe at home, but it turns out I could use it, this time for real. It has almost come to this — within weeks I will decide which Bar exam to take, and in so doing, will pick the state in which I will live and (hopefully) work for the foreseeable future. Like many of my law student compatriots across the country, I will likely graduate without employment:
Although numbers are not available yet, many members of the class of 2010 and 2011 may graduate without a job, and those who are lucky enough to find employment likely will collectively have lower salaries than their predecessors. In short, the job market is more challenging than it has been in many years, as well-paying jobs are in short supply.
ABA Commission on the Impact of the Economic Crises on the Profession and Legal Needs, "The Value Proposition of Attending Law School,"

Having chosen a career, public defense, that theoretically allows me to go anywhere in the country, I am bound only by a few practical considerations: one, how much more I am willing to go into debt; two, whether I want to do death penalty work; and three, whether my desire for close proximity to family overrides my interest in capital punishment.

First, the debt part: law students graduate prepared to study for the Bar exam, but not prepared to take it. Shortly after graduation — either the following week or literally the next day — we begin taking Bar review courses, usually at a cost of about $2,500. These courses are the ultimate teach-to-the-testers, giving us the form and the substance we need to please the lawyers who'll soon be grading our Bar exams. During this two month Bar review time, from mid-May to late July, none of us will be working. Then, after we take our respective Bar exams the last week of July, comes another break while the state Bar associations grade the exams. During this time we are neither law students nor lawyers — just graduates, hoping for a license. Depending on where you take the Bar, this state of flux can last from about six weeks (North Carolina), till about Labor Day, to nearly three months (California), almost until Thanksgiving.

For those of us who don't have jobs and have a hard time finding them because we're not licensed to practice, this can be an extremely costly wait. To offset those costs, I can choose a state where I know lots of people and can live on the cheap, such as Virginia or in the Midwest. The alternative is California, where it would be incredibly difficult to live cheaply, and I would incur thousands more in debt while waiting for gainful employment.

Second is the death penalty, which makes me passionate about practicing law. For that, I can stay in Virginia or go to California, or to Illinois, or to any number of places in the South, like North Carolina, Texas, or Alabama. (There is also one bonus to staying in Virginia: because I came to law school here, this is where I have the most law-related connections. I am not guaranteed a job, by any stretch, but I have as good or better a chance at finding one here than anywhere else.) I cannot go to places like Wisconsin, Minnesota, or Iowa, however, and expect to do death penalty work. These states don't have capital punishment.

But they are fine places to live, which brings me to the last consideration: proximity to family and, by extension, quality of life. Virginia, California, and the Midwest all have their pros and cons, but the Midwest has that unique distinction of also being home to my family (not to mention a lot of important friends, though I can say the same now about having many close friends in Virginia). Illinois, then, would seem to be the only place that has both the death penalty and proximity to family. It also has Chicago, an extraordinary city and the home of my beloved Cubs and Bears. The only problem is that I have precious few legal connections in Chicago. But I could still go, volunteer, and hope that I land on my feet.

Well, there is my globe-spinning thinking laid bare. Sweet home, Chicago?

Monday, March 8, 2010

Lessons in Futility: Senator Warner's Job Fair

Pavlov would have had a field day with law students. The other day a fellow law student and I discussed our respective addictions to checking our email. That particular compulsion stems not only from self-indulgence, though — this institution has conditioned us well. We check our email dozens of times a day, if not constantly (thanks to Gmail Notifier) so that we don't miss class assignments, updates on some law school happening that needs urgent attention (e.g., registering for classes), or the latest job opportunity. In an economy some have dubbed—OK, Above the Law has dubbed—"the worst legal economy ever," we can't afford to miss an entire career fair that grows from mere announcement into actual existence in a matter of five days.

So there I was this morning, panting and drooling to the sound of the potential employment bell, fighting the strange confluence of Palin bumper stickers, cigarette smoke, and absurd traffic along US-17 North through Fredericksburg, Va., on my way to a federal government job fair. Virginia's junior U.S. Senator and former governor, Mark Warner, trumpeted the job fair in an email last Wednesday:
U.S. Senator Mark Warner is hosting a job fair on Monday, March 8th, for Virginians looking for work in the federal government.  The event is free and open to the public.

More than three-dozen federal agencies will participate, including: the Federal Aviation Administration, the U.S. Fish and Wildlife Service, Defense Intelligence Agency, FBI, IRS, the Office of Personnel Management, FEMA, the Peace Corps, the Transportation Security Administration, the Department of Labor, and the U.S. Secret Service.

Here are the details:

DATE: Monday, March 8, 2010
TIME: 9 a.m. - Noon 
LOCATION: Univ. of Mary Washington - Stafford campus 
College of Graduate and Professional Studies, University Hall 
125 University Boulevard, Fredericksburg, VA
For more information, and to RSVP, visit:

Honestly, it sounded too good to be true. In this economy, who wouldn't want a cushy job working for the federal government? One guy I talked with in Fredericksburg this morning said he'd told his duly-employed son to come home for the occasion, in the event that he could land better, more secure employment. The dad later called back and listened to an "I told you so, Dad" speech. But I'm getting ahead of myself.

After having several discussions about the job fair, I tentatively decided to go, even if it meant going alone. Then yesterday, a second email from Sen. Warner's office arrived: "There has been an overwhelming response to this event.  In anticipation of close to 5,000 attendees, the hours have been extended from 9 a.m. to 4 p.m. and additional parking locations have been added." I began to get a sinking feeling about my chances at this job fair but still felt that going was the prudent thing to do. So I went.

I found the Stafford campus of Mary Washington College around 9:30 a.m. this morning, surprised that it took me 45 minutes just to get through Fredericksburg. As I waited to turn left off US-17, I noticed a few things: a Walmart to my left, several police cars strategically placed to direct traffic, and a man wearing a suit and holding a sign that said, in black permanent marker, "More parking @ Walmart." Three minutes later, as I trolled the Walmart parking lot searching for a spot, I would discover that at 9:30 a.m., half an hour after the start of the job fair, the man in the suit's sign was already outdated. I parked in a residential area, just beyond Walmart.

Already the masses of people had become obvious to me, and I quickly identified with them. We came in all shapes and sizes, all ages, all races, our business suits alternately expensive, cheap, and worn. There were optimistic undergraduate women and dapper gray-haired men who could just as easily have been Wall Street executives. But mostly there were lots of middle-aged men and women—black, white, Asian, well-dressed, shoddily dressed, carrying suitcases and canvas bags in various states, from top of the line to beyond repair. They all walked in one direction, with determined looks on their faces. My sinking feeling from yesterday had morphed into futility. I was not getting a job today, I knew that before I came, but I had thought that I might get to speak with some person who at least worked for the federal government.

Then I saw the line. Starting at the entrance to the Mary Washington building, it wrapped around one line of cars, then another, then another, then one more. One person estimated the number of people at 2,000, and it seemed close enough to me. But estimating that number, difficult as it seemed, would prove less futile than standing in the line itself. (The final tally was more like 7,000, according to the Virginia Business Journal.) I reached the end and took my place next to a middle-aged man in a wool suit full of holes which seemed to have come from a cat; a bright-eyed senior from George Mason, who wore four-inch heels and her best pearls; and a woman who professed to having two master's degrees, in English and anthropology.

As I gazed at the ecclectic crowd, my sinking feeling morphed into one of surreal futility. The guy and the wool suit and I had a similar sensation — that a person could have made quite a bit of money simply by walking around the parking lot with a cart full of coffee and other goodies. For a moment, we both longed to have thought of that ahead of time. A minute later, he bid adieu and left his place in line. I soon followed, roughly five minutes after I had come to the end of the line. I wished the undergrad and the Ph.D student the best, and walked toward Walmart.

Inside, as I searched for a beverage, I found more scenes of surrealism. The store was virtually empty, save for a few like-minded souls wearing suits and a "manager's meeting," described to me by a cashier. The Walmart managers were meeting to discuss their plan of action for the long day ahead, a day with a parking lot full of cars owned by people waiting in a long line — across the street. In the juice section, I met the dad I described earlier. He and his wife told me of their own economic woes — the woman ran a struggling photography business, but said they would persevere. I told them my situation, said I'd be fine, and they wished me luck. I left the store heartened. Of course everything will be fine.

Just outside the door, a gathering of old men, some of them embittered by the day's events so far. One had a new, juicy bit of information: one of the federal government employers, sensing the hopelessness of the long day ahead, had stepped outside to inform the people in line that only a few of the employers were actually accepting resumes, and that our best bet was to go online to apply for jobs with these federal agencies. To, that unobliging harbinger of hopelessness that we'd all visited at one time or another — long before we drove to Fredericksburg.

On the drive home, after reading Alice in Wonderland to put surrealism in proper perspective, I called Sen. Mark Warner's D.C. office. I had a pleasant conversation with a young male staffer and told him of my experience, and of the overwhelming sense of futility the day had wrought. He empathized in a genuine way, commended me on getting a law degree, and asked what message he could pass along to the senator on my behalf. I told him that, aside from finding employment, I worry most about getting health insurance after graduation. COBRA premiums run about $250 per month through the university, and that's just not something I can afford. I told the staffer that I hoped his boss would continue to support health care reform. He thanked me, and I felt that the day had not been quite so futile. It was barely after noon, the sun was shining, and spring break had just begun.

Sunday, February 28, 2010

Ode to Spring, Break, and the Light at the End of the Tunnel

It's late February and Virginia still clings to winter like a pop radio station clings to Gloria Estefan: it hasn't done much for this place, no one cares for it, and yet it just won't go away. Lately the wind's intensity here has rivaled that of the Great Plains at times, though it will never have a Midwestern wind's endurance. The snow here has finally melted but flurries taunt us in this week's forecast. The rhythm is going to get you. Come on, sunshine and green.

(Before I go further, I should say that the title of this post is a tribute to my Cornell friend Aaron in Los Angeles, who writes a blog called Odeable Edibles, "A slapdash flight into a world of poems that should not exist." Check it out.)

The end of law school is now clearly in sight. On the other side of Spring Break, which starts next weekend, is the last half of the last semester of the last year. New editorial boards have taken the helm of William & Mary's four law journals, a new executive board has been elected to the Student Bar Association, and the administration has released the class ranks that determine who will join the Order of the Coif, that fraternal order of law students not unlike Phi Beta Kappa for undergrads. My own involvement in the law school has dwindled in its breadth, if not its depth. For the first time this year I will not be joining the Student Hurricane Network's now annual Spring Break trip to New Orleans. Fourteen others will, however, and of that I am glad. The ACLU leadership has finally changed to optimistic, energetic 1Ls. I was once one of those (now I'm just optimistic and energetic). I am lucky to be a student representative on a law school committee examining Legal Skills, one of our school's signature programs. It seems that now, every law school must look inward to make its students more prepared for a difficult legal job market. These days I also find pleasure in giving tours to prospective students, finally able to explain this place to strangers with some confidence. They ask fun questions like, "How do the students treat each other? Do they really tear pages out of each other's textbooks?" and "What's it like to live in Williamsburg?" I tell them the truth: we're good people, a decent community. No, we don't tear out pages; we share outlines. The competitive moments do come, but they're primarily reserved for exam days and Moot Court tryouts. And living in the Burg is a pleasant experience, thanks to the historical charm and the other people who live here.

It's difficult to say whether anxiety or relief pervades my classmates, so close to the end. I fluctuate between the two moods myself, depending on how much sleep I get. When I squeak by with four or five hours, I stress the future, wondering when I'll finally know where I will take the Bar exam, whether I'll have a job before graduation, and when I'll be able to tell my parents that their investment in me was a good one. When I'm fortunate enough to get seven or eight hours, I cast worries like those aside, and push through my day with a sort of debonair delight, realizing that I may never again enjoy a time like this. All the uncertainty aside, here I am, on the cusp of graduating from a laudable institution, amongst friends and future leaders of society, enjoying good health and good company on a daily basis. There is much I am thankful for.

Thursday, January 28, 2010

On the filibuster, and the SOTU

Here's my recent post to the W&M American Constitution Society blog, on "Mitigating the Filibuster." Without the Republicans' abuse of the Senate's arcane rules, President Obama would already have signed health care reform and climate change reform into law. Period.

As for the State of the Union last night, I thought it was an excellent speech. Obama made his priorities clear and reaffirmed his belief in the principles that we elected him for — that the American people are resilient, that Washington must change the way it governs, that we must end the war in Iraq, and that government must provide a better social safety net for the least among us. Since his election, a new priority has emerged of necessity: that government must do a better job of regulating the financial system. Our growth in the 2000s was largely the result of speculation and the housing bubble. The growth went largely unnoticed for the average American, who saw his wages decline during that period. We can't keep building on a house of sand. He was also right to say that without the stimulus package, we would be in much, much worse shape than we are today.

I disagreed with him on a few points. A three-year spending freeze on discretionary spending is unrealistic, won't do much to cut the deficit, and is essentially pandering to the Blue Dogs in the House. He basically quoted that part from a speech that John Boehner gave last year, but I'm sure Republicans will still find a way to criticize him for it. He's also wrong about the Citizens United decision, the one that allows corporate spending on campaigns. The outcome's going to be bad, at least in the near term, but you can't criticize a Supreme Court decision simply because you don't like the outcome. The conservative justices got the law right — the First Amendment protects the right of people who incorporate to speak about political candidates. Any legislation that Congress passes in response will be a waste of time, and will probably get struck down.

I found the reaction of the Republicans to a few key parts of the speech absolutely amazing. They paint Obama as a tax and spend liberal but when he said — quite truthfully — that his administration has not raised taxes once, but in fact has cut taxes 25 times, the Republicans sat on their hands. They don't like lower taxes? Hmm, that's funny. When he said that the biggest banks (not all the banks, just the ones that got TARP funds) should have to pay a fee until the rest of the bailout money is repaid, the Republicans sat on their hands. Really!?! The banks shouldn't have to repay the bailout money? Also, why do Senate Republicans (except Judd Gregg) oppose the creation of a bipartisan commission on reducing the federal deficit? I thought it was clear last night that Republicans will oppose Obama even if he proposes initiatives that are consistent with their ideology.

Also, he was right to tell Democrats not to "run for the hills" just because of the special election in Massachusetts. They do still have huge majorities and if they pass a jobs bill, and the economy keeps growing, they'll keep most of those majorities in November. He's also right to keep calling for more transparency. It's Congress that's sitting on its hands. They should post all earmark requests online, so that we know which members are increasing the deficit, by how much, and for which projects. And it's about time we repeal Don't Ask, Don't Tell. What a moronic policy, keeping people in the closet. Finally, health care reform will get done, as it should.

Friday, January 22, 2010

A Big Week for Old Media

The world of media is changing so fast even the New York Times, the paper of record, can't always keep up. This week three developments marked significant shifts in the future of the media business model. All three could benefit the struggling daily newspaper industry, or at least what's left of it.

The first is perhaps the most obvious, because it comes from the newspapers themselves. The New York Times this week announced that it would begin charging nonsubscribers for frequent access to its website, starting in 2011. This is bad news for frequent news consumers, bloggers, and probably even cite-checking law students, who all rely on easy access to the Times' incredible archive of reliable information. But it's probably good news for the newspaper itself, which will see an immediate spike in revenue. With ad sales and circulation declining, the Times Company's decision to charge for access to online content will temporarily anger readers (like me) but undoubtedly will help the paper retain its invaluable news staff. This isn't a panacea for the newspaper industry, but others will watch to see if the Times' decision helps stop the bleeding. If it does, other large newspapers still standing in 2011 will likely follow suit.

Second, the Wall Street Journal claims to have confirmed rumors that Apple will unveil its long-anticipated iSlate tablet device next Wednesday. If it sells half as well as the iPhone, this device will revolutionize the way we access digital information. Few people enjoy reading large quantities of text on computer screens, iPods, or Blackberries but increasingly, not doing so leaves a person in the dark. Most of us need to access digital information with great speed and frequency, so we do it in spite of these reservations, and our preference for paper. I'm not suggesting that books will disappear, of course, only that Apple is filling a need. The iSlate is great news for newspapers because it decreases the need to distribute the paper versions of their product, cutting circulation costs without losing readers. (As an aside, the iSlate could also be fantastic news for college and law students. Think of the potential for digital textbooks to drive down costs.)

The third development is more subtle, and comes packaged in what seems like bad news: the U.S. Supreme Court held yesterday, 5-4, that people using the corporate form have the same free speech rights in political campaigns as the rest of us. Since Congress passed the McCain-Feingold Bipartisan Campaign Finance Act, for-profit and non-profit corporations, as well as labor unions, were limited in the ways they could donate to and speak about political candidates. The Act exempted media corporations, meaning that a giant corporation like Fox News could say whatever it wanted about a candidate up until Election Day, while a non-profit group like the ACLU had no such ability to endorse or criticize a candidate. Media corporations, now on a level playing field with other corporations, have mixed views about the ruling. The Wall Street Journal hailed the ruling as a victory for the Constitution and free speech rights, while the New York Times (long a supporter of campaign finance reform) assailed it as a "blow to democracy". Whatever your feelings, until Congress makes a change, corporations are free to start buying political advertisements. Who will get all this money? The old media. The same New York Times Company that criticized the ruling will undoubtedly accept these advertising dollars. The Times editorial board may continue to support campaign finance reform but the Times Company's board of directors surely will not stop this new flow of money.

Not a bad week for old media.

Thursday, January 14, 2010

The beginning of the end, and televising the Prop 8 trial

My final semester of law school began this week. It feels a bit surreal to know that, to know that in a few months the people I've grown accustomed to seeing in the halls will be on their way to jobs at law firms across the country, clerking for judges, or moving back in with their parents (as I may do myself, sorry Mom and Dad). But here we are, not quite sure why we're taking classes like Selected Topics in Corporate Governance, Natural Resources Law and Legislative Redistricting, except that we need the credits to graduate. My schedule is a healthy mix of practical lawyering skills and abstract curiosity satiation:
  • Philosophy of Law: Is there a moral duty to obey the law? What is the essence of a law
  • Domestic Violence Clinic: seeking protective orders for victims of domestic abuse
  • Law & Literature: essentially a book club in which we read four novels, and meet with food and wine at a prof's house to discuss them
  • An externship with a local public defender's office: hoping to do a ride-along with the police department!
  • Trial Advocacy: running through all the steps of a mock trial
  • Select Topics in Criminal Justice Seminar: comparing how different common law countries handle criminal justice issues differently, such as police interrogation, equal protection, punishment, sentencing, etc.
Many of us are still job-hunting, of course. Having read an article that says this is the worst legal job market since the Great Depression, though, I'm not stressing too much about it, except that I'm not quite sure where to take the Bar exam. Oh well. Good things come to those who wait.

I want to comment on a frustrating decision the U.S. Supreme Court handed down yesterday. A pair of California lesbians filed suit in federal court, challenging the constitutionality of Proposition 8, the 2008 referendum that made same-sex marriage illegal in California. The women's lawyers are David Boies and Ted Olson, two of the most experienced Supreme Court advocates in the country, who just happened to argue both sides of Bush v. Gore back in 2000 — against each other (Olson argued for Bush, Boies for Gore). Olson, a well-known Republican conservative, believes that people like him should start accepting gay marriage, and he feels passionate enough about it that he's willing to take this case all the way to the Supreme Court.

The federal judge presiding over the trial, which started Monday, agreed with the plaintiffs' request to put each day's proceedings on YouTube after court ended for the day. This was an unprecedented step for a federal judge, and a fantastic one. We expect openness from the executive and legislative branches of government (C-Span and C-Span 2 are good examples) and though we don't always get transparency, we're at least frustrated by it. The judiciary, however, has gotten away with largely shutting us out, and we don't even make them apologize for it. We give federal judges the ability to open civil trials by putting broadcasts of the proceedings online. (Criminal trials are quite different, because of defendants' rights, and would command a more careful set of broadcasting rules.)

The defendants objected to the webcasts (why? are they afraid they'll look bad?) and eventually appealed to the Supreme Court, which on Monday issued a temporary stay, preventing the webcasts until it had time to make a more informed decision. The Court issued that "more informed" decision yesterday, blocking the YouTube webcasts for the remainder of the trial. The Court did not say, however, that broadcasting is a bad idea, or that it would offend some constitutional right of the defendants (it wouldn't). The Court merely said that the federal judge may have violated a federal statute by not providing enough time for public comment on his decision to change a local rule and allow the broadcasts.

If this decision seems downright silly, it's because the judge did allow a couple of days of public comment and during that time, he received nearly 139,000 comments. Of those, all but 32 were in favor of televising the Prop 8 trial. Would more time have yielded more negative comments? Probably. Would it have yielded exponentially more positive comments? I think it's likely. The public favors openness.

The Supreme Court's (unsigned) decision blocking the broadcast of the trial was 5-4, with the conservative members in the majority and the more liberal members dissenting. I'm optimistic that in time, the Court will change its mind about broadcasting federal civil proceedings. When it comes time to decide the merits of this issue, I hope that at least one of the conservative justices will change his mind.