Clinics are great, but learning is better

This week many Georgetown Law students will apply to clinics, with dreams of arguing a case in court, shepherding an exciting new non-profit through its incorporation, or writing an eye catching policy memo. Some of them will even be accepted. Clinics are often heralded as the future of legal education, and their benefits are obvious, but they should not be overstated. They give students practical, hands on education. Instead of an externship, where a student is often given small research projects and the chance to observe, but rarely gets to make substantive decisions about legal strategies, clinics offer students the opportunity to take charge of a legal situation with the advice and guidance of a well-qualified professor.

Clinics are a unique learning experience with value to students, to the people the clinics serve, and to potential employers. But are they really the future of legal education? This question gets to the heart of what law school really is, and what it means to be a law student. Are you in law school to learn to be a lawyer, or are you in law school to learn about the law? The two are not mutually exclusive, of course. In learning to be a lawyer, you inevitably learn some of the law, and in learning about the law, you often learn something about being a lawyer. But neither are the two things the same. Learning to be a lawyer emphasizes advocacy skills, strategic thinking, and interpersonal relations. Learning about the law is as much about asking what the law should be, as it is about answering what the law is.

Clinics are a valuable tool, and I, myself will be applying to some of them in the hopes of a rich and rewarding learning experience next year. But law schools should not trip over themselves to provide a “practical” legal education while neglecting the more theoretical aspects of the law. The legal academy has long fulfilled the function of examining the law’s underpinnings; pushing and prodding it to find its weak points. If it abandons that task in order to overemphasize the skills of practice, it risks the production of a generation of Disco Ball lawyers: impressive on the outside, hollow at the core.

It is worth noting the cause of the shifting emphasis. The costs of legal education reach ever higher into the stratosphere, while the legal job market remains somewhat stagnant. Potential students become more and more wary of taking out large loans, and they look for schools that have the best reputations with legal employers. Those employers will favor schools that provide the best practical educations, since new employees with better practical training require less training from the employer, allowing the employer to make money from the new employee sooner.

All of this is logical and, to some extent, desirable. One of the functions of law school is undoubtedly to prepare its students to practice law. It makes sense, at a general level, to try to achieve that task as efficiently as possible, and doing so both spurs innovation in legal instruction and improves the efficiency of the bar. But taking too narrow a view of the educational mission is dangerous. With the rise of ediscovery and improving legal search engines, some legal tasks are becoming increasingly automated. One of the most important ways for lawyers to stay relevant is to focus on reason as well as process. Lawyers need to understand not only how the law works, but why it works that way. And to do that lawyers need to have a holistic view of the law; to see patterns that repeat in different areas; to know how it was put together, who put it together, and why; and to be aware of the parts that work and the parts that don’t work.

By all means, apply to some clinics. It’s a wonderful opportunity to get hands-on tutoring from some of the best and most knowledgeable professors and practitioners in the country. But remember, you have your whole career to learn how to practice. This is the only time you get to devote to asking the fundamental legal questions. Let’s make sure we continue to take advantage of it.

Scorin’ with Scura: March 19, 2013

Staring this week, The Court Reports section would like to introduce a new feature, discussing a different type of court…basketball!

Money ruins everything. Well, Big East basketball, at least.

If you grew up loving basketball in the Northeast in the past 30 years, you inevitably dreamt of playing in the Big East Tournament at Madison Square Garden. No one will ever know how many shots in backyards, playgrounds and YMCA’s were taken as the shooter imagined leading his team on a miracle run through college basketball’s best conference tournament in the mecca of basketball.

Saturday night saw the last game  of the Big East as we know it. Next year conference mainstays Syracuse, Pittsburgh, Rutgers, and Notre Dame will leave for the Atlantic Coast Conference, leaving the Big East’s future in doubt. The conference’s seven remaining Catholic schools (Georgetown, DePaul, Marquette, Providence, Seton Hall, St. John’s, and Villanova) will form a conference that may keep the “Big East” moniker and may also include some combination of Butler, Central Florida, Cincinnati, Creighton, Louisville, South Florida, Xavier, and UConn.

Regardless, an era of excellent college basketball is over, sacrificed at the altar of mediocre college football and the almighty dollar. The league that so dominated college basketball in the 1980s is gone. Rivalries are over and  tradition has been abandoned.

College basketball, of course, is not merely a monument to hustle and teamwork and the love of the game. It is infested with illegal booster money, player entitlement, and arrogant coaches and athletic directors who pocket millions while the students playing the games get paid nothing. The cloud of early departures of the game’s greatest players hangs over the game. Imagine how much more fun college basketball would be if players who left early were still in college. Kentucky alone could start a lineup of John Wall, Eric Bledsoe, Michael Kidd-Gilchrist, Demarcus Cousins, and Anthony Davis.

Despite the myriad problems plaguing the game, college basketball is as just as wide-open and exciting as ever. Those of you filling out brackets this week will have as much luck using the which-mascot-would-win-in-a-fight method as you would analyzing performance to pick a winner.

So what are we to make of a college sports landscape without Big East basketball? Not too much, I think.

It is sad to be sure, but the Big East has been slowly crumbling since Boston College decided to leave in 2003. And we’ve known that money drives college alignment decisions since the early 1980s, when the NCAA cannibalized the Association for Intercollegiate Athletics for Women (which had governed all women’s collegiate sports) to exploit the money in women’s basketball. Ultimately, this is just a disappointing reminder that if university  presidents can sacrifice something you love for a dollar, they will.

United States v. Appelbaum and other recent circuit decisions

WikiLeaks defendants were denied their disclosure request due to government interests in not tipping off additional suspects.United States v. Appelbaum, No. 11-5151, 2013 U.S. App. Lexis 1746 (4th Cir. Jan. 25, 2013).
The Electronic Communications Privacy Act of 1986 criminalized “the unauthorized access of the contents and transactional records of stored wire and electronic communications.” At the same time, the Act also allowed law enforcement to obtain electronic records after obtaining a warrant under the applicable rules and a reasonable suspicion standard. The government does not need to notify the individuals when obtaining such records.
After obtaining a warrant, the government required Twitter to release three users’ (accused of criminal conduct in relation to WikiLeaks) “names, usernames, personal contact information, connection records, financial data, length of service, direct messages to and from email addresses and Internet Protocol addresses for all communications” within certain dates. The suspects filed a motion to unseal the request for documents (the “request”). The magistrate judge denied the request, and the district court and the Court of Appeals for the Fourth Circuit both affirmed.
The suspects argued that both the First Amendment and the common law subject the request to a right of public access. The Fourth Circuit held that such a right applies only to judicial records. Thus, the common law presumption of access applied. However, the Fourth Circuit found that the First Amendment did not create a presumption of access, since neither prong of the two pronged “tradition and logic” test was met: there was no tradition of access since the law was only passed in 1986, and logic dictates that public access does not play a significant role in the investigative process.
Finally, the Fourth Circuit determined that the common law presumption of access was overcome by a significant countervailing interest. In making that determination, it considered the public’s interest in having access to the documents in a high profile case, but found it to be outweighed by the Government’s interest in avoiding tipping off additional suspects of the investigation. 
United States v. Flores-Machicote, No. 11-2243, 2013 U.S. App. LEXIS 1565 (1st Cir. Jan. 23 2013).
Victor Flores-Machicote pleaded guilty to possessing a firearm as a convicted felon. The crime carries a possible sentence of up to 10 years in prison. The probation department prepared a report recommending an incarceration of between 33 and 41 months. At sentencing the parties jointly recommended a sentence of 33 months. Instead, the district court imposed a sentence of 60 months. Flores-Machicote appeals the sentence, arguing that the procedure followed in invoking the upward variance was inaccurate and that the sentence was substantively unreasonable. Acknowledging the limited role of appeals courts in reviewing sentences under an abuse of discretion standard, the First Circuit rejected both arguments, affirming the sentence.
Procedurally, Flores-Machicote contended that the judge failed to treat him as an individual, instead focusing on perceived shortcomings of the local criminal justice system and the high murder rate. The appellate court agreed that the judge is required to rely on the characteristics of the defendant and the crime to justify an upward variance. The district judge, although he did comment on the shortcomings of the local criminal justice system, also focused on the defendant’s record, which included numerous drug convictions and a conviction for misappropriation of a vehicle, each resulting in a relatively lenient sentence. The court also noted that it is appropriate to give community factors some consideration in sentencing, especially since deterrence is an avowed goal of the criminal justice system. Finally, the First Circuit rejected the claim that the sentence was substantively unreasonable, citing the defendant’s extensive criminal history coupled with the need for deterrence in a high crime area.
Americans for Safe Access v. DEA, No. 11-1265, 2013 U.S. App. LEXIS 1407 (D.C. Cir. Jan. 22, 2013).
Although marijuana has now been legalized in several states, it is still classified as a Schedule I narcotic by the DEA, which maintains that “marijuana has no currently accepted medical use.” Therefore, it is mostly illegal to produce, sell or use marijuana under federal law. Several groups and individuals petitioned the DEA to reclassify marijuana under the Controlled Substances Act of 1970, and appealed in response to being denied. The Court of Appeals found that at least one individual, Michael Krawitz, had standing to bring the appeal, counter to the government’s argument.
Krawitz, a U.S. Air Force veteran, successfully argued standing because the DEA’s classification of marijuana deprives him of services that he would otherwise receive free of charge from the VA. As a condition of pain management treatment, VA officials asked him to sign an agreement to not use medical marijuana. Krawitz refused, barring him from receiving treatment he is otherwise entitled to. Additionally, Krawitz currently must consult with a non-VA physician in order to participate in Oregon’s medical marijuana program.
Although they did agree that Krawitz had standing to appeal, under the arbitrary and capricious standard the court found that substantial evidence supported the agency’s factual findings, which in turn reasonably supported the decision not to reschedule marijuana.
United States v. Morrison, No. 12-4269, 2013 U.S. App. LEXIS 1068 (Jan. 15, 2013).
The defendant, William James Morrison III, was convicted of being a felon in possession of firearms. Morrison appealed, arguing that the search that turned up the weapons violated his Fourth Amendment rights. A police officer had observed Morrison make an abrupt (though legal) U-turn while driving and decided to follow Morrison’s vehicle. While following Morrison, the officer noted that his automobile’s 30-day paper registration was old, weathered, and unreadable and decided to stop the vehicle. Upon approaching, the officer noticed a large black case and a firearm in the backseat. After running Morrison’s license, the officer was alerted that Morrison was a convicted felon, and thus his possession of firearms was illegal.
Morrison contended that the initial stop was unlawful because it was based solely on the legal U-turn. The Fourth Circuit disagreed, however, because the stop was also based on the unreadable temporary license plate. Thus the stop and subsequent search were both lawful.
United States v. Maryea, No. 11-2239, 2013 WL 150316 (1st Cir. Jan. 15, 2013).
In Maryea, the First Circuit grappled with role of the courts in enforcing the Speedy Trial Act. Defendant Lynette Maryea was convicted of one count of conspiracy to possess Oxycontin, Suboxone, Lorazepam, and Ativan with intent to distribute. Maryea participated in a scheme to smuggle the painkillers to her boyfriend inside a New Hampshire correctional facility. Maryea purchased the drugs by filling forged prescriptions, then delivered the drugs in latex gloves to “trustees working within the laundry department” at a nursing home located next to the jail.
Maryea had spent time in a psychiatric facility for the treatment of bipolar disorder, and complained at trial of back and neck pain requiring medication. A co-defendant requested a continuance to resolve a related state law case, which the District Court granted. Maryea opposed severance, but moved for dismissal on the basis of a violation of the Speedy Trial Act, which guarantees that a defendant will have a trial to determine guilt within a particular period of time, while excepting particular delays from the calculation, including delays requested by a co-defendant. The District Court denied Maryea’s motions for dismissal. During trial, Maryea was injured in a car accident. The court ordered an independent medical evaluation to ascertain the injuries and whether the “continuing effects of those injuries, if any, will prevent her from meaningfully participating in the ongoing criminal trial and assisting with her defense.”
Maryea made two principal arguments on appeal. First, she argued that the reasonableness of the continuances should be judged with respect to her (as opposed to her codefendant) for Speedy Trial Act purposes, and the continuances at issue should have been determined to be unreasonable. Second, she argued that the district court should have explicitly ordered a psychiatric evaluation.
The First Circuit rejected both arguments. Assuming, without deciding, that the “Co-defendant Clause” of the Speedy Trial Act (which permits “a reasonable period of delay” at the request of one co-defendant) was subject to a reasonableness limitation, it found the delays requested by the Maryea’s co-defendant reasonable because Maryea did not petition for (or indeed want) severance, and the reasons for joint trial in this case were compelling, since the co-defendants were charged with perpetrating a single conspiracy.
The court noted that a judge must inquire into a defendant’s mental capacity to stand trial if “there is reasonable cause to believe a defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent …” and that a new determination may be necessary when there is a “significant change of circumstances.” The First Circuit found those requirements satisfied by the competency evaluation conducted at the beginning of trial and the medical examination and court questioning after the accident. 

Top Ten Profession that Need Replacement Refs to Sub for Them So They will be Appreciated

What is this strange piece of yellow fabric? Photo courtesy of compujeramey’s photostream on DJs. Replacement Refs don’t have iPods, right?

9. Late night college campus shuttle service drivers. The driving is easy, it’s not punching the drunken students that’s hard.

8. Members of Congress. Actually, I just want to replace the Members of Congress. At press time, the Vegas line had replacement refs favored by 1.5 legislative achievements over the current Congress. Of course, the bills changed personal fouls to 27 yards and instituted “Golden Tate Day” as a national holiday.

7. Bass players. They tell me it’s harder than it looks.

6. Trash collectors. Although, they should just threaten to strike all the time. How long would it take after they stopped collecting trash before everyone volunteered to pay more taxes to end the strike? Trash collectors could all be millionaires.

5. Dentists. And to think, you hate going to the dentist now.

4. Student newspaper humor editors.

3. Law professors. Sometimes they’re annoying, sometimes they’re scary, but it would be worse if you took Torts from two guys in striped shirts who couldn’t agree what the “B” stands for in “BPL.”

2. New Jersey full-service gas station attendants. Do you have any idea what kind of chaos would ensue if we allowed just anyone to pump gas?

1. Attorneys. Everyone hates us. But imagine the justice system if all lawyers and judges were incompetent. The part with the most money would win every time! Wouldn’t that be ridiculous?

Presidential Debate Drinking Game

The SBA, in conjunction with a number of campus groups (including the Law Weekly) is hosting a debate watch party on October 3rd. We here at the Humor Section have developed the official Presidential Debate Drinking Game. Recommended beverages: water, sparkling water, or vitamin water. Let’s get hydrated!


Take a small sip

Obama brags about killing bin Laden.

The answer does not correspond to the question.

Romney says “job creators.”

Obama mentions Bain Capital.

Either candidate says “middle class” or “national debt.”

Drink for a one-count

Either candidate mentions “Obamacare” or “Romneycare.” Drink double for “Obomneycare.”

Obama blames something on Bush.

Romney says “tax cuts” or “big government.”

Either candidate pretends we’ll be able to pay for Medicare or Social Security ten years from now.

Drink for a two-count

Someone says “47 percent,” “one percent,” “99 percent,” “Wall Street,” or “Main Street.”

Romney mentions the stimulus.

Obama takes credit for the success of GM.

Romney disparages teachers’ unions.

Obama praises teachers’ unions.

Drink for a three-count

Romney gets called out for releasing less years of tax returns than his dad.

Romney says “death panels.”

Obama says “dressage.”


Whenever the crowd boos or cheers, drink throughout the duration of the boo or cheer.

Finish the bottle

Anyone mentions climate change. Don’t worry, it won’t happen.


“Beasts” Packs a Unique Punch

Hushpuppy conquers all. Photo courtesy of Fox Searchlight promotional photographs.Falling icecaps. Unleashed ancient beasts. Katrina-era New Orleans. Although “Beasts of the Southern Wild” has a story, it is understood equally well as a collage of impressionistic scenes. The film is, in turns, gorgeous and grotesque. The shot captured on the poster, of Hushpuppy (the film’s six-year-old protagonist) running with sparklers while fireworks light up the sky, is a nearly-perfect celebration of celebration. And I would put the film’s final shot right up with the final shot of “Shawshank Redemption” for both beauty and capturing the film’s spirit. In between we get poverty, child abuse, and disemboweled wolves.

Ostensibly the movie is about Hushpuppy and her relationship with her father before and in the immediate aftermath of Hurricane Katrina. They live in a small (fictional) community called “The Bathtub” in the Mississippi delta south of New Orleans. The Bathtub, a place that has “more holidays than the rest of the world put together,” prepares for Katrina mostly by insulting the residents who leave. The town must then deal with the consequences of the storm.

Really, though, the movie is about fear. Fear of change. Fear that the world is coming apart at the seams. Fear of losing the things, the people, the life you know. Quvenzhane Wallis is fantastic as Hushpuppy, conveying both that fear and the determination to deal with it. With her undershirt, rolled up jeans, and way-too-big rainboots, Hushpuppy is an instantly iconic character.

The movie is not perfect. It trades in Wallis’s cuteness in a way that sometimes verges on exploitative. It hits its emotional points hard and repeatedly. But “Beasts” speaks to its themes elegantly and in a unique way. The Bathtub feels lived in, and while most of us law students may have little in common with Hushpuppy’s life on the surface, the fears she feels and the way she deals with them are universal.

“Beasts” is the first feature from director Benh Zeitlin (full disclosure: Zeitlin and I are both alumni of Wesleyan University, although we have never met). It was made for less than $2 million, starring first-time actors, and finished just two days before the Sundance Film Festival, where it won the Grand Jury Prize. 

Back to Baseball: A Rain Delay and Strasburg

Stephen Strasburg reeling back and letting rip. Photo courtesy of dbking’s photostream on am a Red Sox fan. I have been a Red Sox fan ever since I decided that my dad’s New Jersey roots were not going to dictate my baseball fandom. Boston’s 12-inning victory over the Yankees in Game 4 of the 2004 ALCS is probably my favorite sporting event ever. It is hard to watch the Red Sox this year. They’re dysfunctional, their ownership is more interested in English Premier League Football, and their manager called the September roster the worst in the team’s history. They traded their best player, franchise pitcher, and latest big ticket signing for a couple of mediocre prospects, and I thought it was a good trade. When you couple this year’s team, last year’s collapse, and the loss of the team’s identity as a lovable loser over the past few years, I have become increasingly disinterested in baseball.

But for one night in August, the Nationals drew me in. Stadium floodlights illuminated the rain, so the white sheets falling from the sky matched the white sheet being dragged over the infield. Waiting for weather to change is an interesting experience. Waiting for the weather to change with 20,000 people is a semi-religious experience. To stay at a baseball game while it’s raining is an act of faith. It’s not unlike the process of becoming a sports fan; you invest yourself in a uncertain outcome having absolutely no control over the process.

After the rain came, I took advantage of two-for-one hotdog night and watched Stephen Strasburg dominate the Atlanta Braves, striking out ten and allowing only one run over six innings. The Nats rode Strasburg and Jesus Flores’ three run homer to a 4-1 win.

Baseball long ago ceased to be America’s pastime. It’s intricacies, quirky personalities, and slow pace were better suited for the era when the only competing form of entertainment was radio. America is now drawn to the immediacy, brawn, and spectacle of the NFL. Nonetheless, there is something weirdly patriotic about watching a baseball game in Washington, DC, especially when the team is good, and especially in an election year.

The Nationals are good. As of Saturday, they have the best record (89 – 56), best run differential (total runs scored – total runs allowed, at +132), and least overall runs allowed in baseball. Which is what makes this whole Stephen Strasburg thing so weird.

Last weekend the Nationals shut down Stephen Strasburg, their best pitcher, for the season. He is not injured. Strasburg missed most of last season after having Tommy John surgery (which, roughly speaking, repairs a ligament in his elbow). The Nationals decided to shut him down this year in order to limit his workload and preserve his arm strength heading forward. This is unprecedented precisely because the Nationals have a chance to win the World Series this year. There is a decent chance that the Nationals are sacrificing that chance in order to extend and improve the career of one of their players.

I am not an expert in elbow ligaments or the overall arc of pitching careers. But baseball, and sports in general, are about moments. I experienced a moment at Nationals Stadium in August, and they have an opportunity to do something special this year. It’s a shame to see that go to waste.

Wear an Undershirt: What I Learned at EIW

“You don’t look exactly like everyone else that I’m going to see today…honest. Please have a seat.”Two weeks before classes started, most of the rising 2Ls participated in Early Interview Week (a.k.a. EIW, a.k.a The Most Surreal Experience of Your Life). It involved a series of twenty minute interviews with some of the biggest, best, and most IP-centered law firms in the country. In the interviews, you pretend to be absolutely positive about exactly what kind of law you want to practice and where you want to live for the rest of your life. Furthermore, even if you like the firm, they’re from your hometown and you want to go back there, they actually like your resume and your grades are good enough, it still doesn’t matter if you don’t hit it off with the interviewer. So no pressure.

As a service to the 1Ls, I have decided to share what I learned at EIW.

Not all law firms are the same.

Firms vary across such metrics as office size, location, and prestige. Apparently, there are things called “practice areas,” which allow firms to brag about having one guy who’s really good at some obscure thing without using his name. Also, “Latin American M&A” is not a type of Brazilian cocktail.

Wear an undershirt.

EIW takes place in Washington, D.C. in the middle of August. You will sweat buckets. Don’t try to stop it. Just avoid getting sweat stains on your one good dress shirt. And maybe bring some Altoids to mask the smell.

Somebody should make a short film out of this.

There are hallways where a number of people literally sit silently in little chairs outside hotel room doors looking straight ahead, then rise and knock in unison. You then proceed to have a twenty minute convresation that could be pivotal to the course of your future sitting in a hotel room next to a bed in which your interviewer may or may not have slept the night before. It’s the weirdest thing I’ve ever seen, and I went to Catholic high school.

How to tell my life story in twenty minutes.

Well, it’s funny you should ask how my summer was; it was great, for a couple of reasons … . Well, there’s a good story explaining why I transferred … . Well, in the time between college and law school I really learned a lot about myself … . Well, it all started in ninth grade when we did a reenactment of the Jesus trial … .

Order the six-inch.

You’re way too nervous to eat an entire foot-long.

People laugh at anything when they’re stressed.

What do law firms looking at my resume and McKayla Maroney have in common? They’re not impressed. While normally that would elicit, at best, an exaggerated groan, during EIW people thought it was hilarious. Write some terrible jokes and you can pretend to be Mitch Hedburg for the week.

If you’re getting off on the third floor, don’t stand at the back of the elevator.

Seriously. It will be packed, and you’ll have to push past everyone, who will silently hate you for not taking the stairs.

How to deal with crushing rejection.

Nothing says, “We just didn’t like you as a person,” quite like, “We were impressed with your qualifications, but are unable to invite you for additional interviews.”

Roll with the punches.

You can’t control whether other people like you. Sometimes interviews that go terribly will lead to call backs and interviews that go splendidly will lead to a swift “No.” If you discover midway through the afternoon that there’s a tiny wet spot on your shirt from lunch, don’t panic: if they won’t hire you because there’s a wet spot on your shirt, you probably don’t want to work for them anyway. Although they do pay money.