Not a 1L anymore

Now that I have finished my 3rd semester, it is time for some reflections on what I have learned. Its strange, I have already written 3,000 words today for a final exam, but I don't feel like this counts as typing words. I suppose its not so strange.

Administrative law was a study in psychology. Many express frustration with the slow pace of congress. Congress is designed to move slowly. There are endless procedures and obstacles in the path of any bill. It seems that the threat of unemployment is the only force powerful enough to get congressmen to agree with each other long enough to pass something through the immense gridlock of procedure. Administrative law is not really about procedures. It doesn't really matter whether there are enough votes, filibusters, or notice and comments. At the end of the day, if the head of the agency wants something to happen, then it will happen. In a sense, administrative law is run by dictators; it is the efficient, smooth, well-oiled machine that the general public thinks congress should be.

As such, the study of administrative law is the study of dictators. Human psychology plays a large role. Why does statutory language get interpreted based on the statute's purpose in the hands of some, whereas in the hands of other, the language is plumbed for its literal, textual meaning? Why are certain industries able to garner influence in agencies more than others? What constrains the actions of these dictators? What do they fear? All of these questions are far more significant than the process by which new rules are subject to comment, or what regulations are subject to OIRA review. This is where the human drama happens. This is where the different branches of government engage in Mortal Kombat!

Corporate law is akin to Constitutional law. This result is not at all what I was anticipating when I signed up for the course. I thought that there would be a lot of math, and a lot of greedy corporations having to battle SEC regulations. This is not the case, at least not in the introductory course I took. Instead, I learned that a corporation is like a country. It has a constitution, elected officials, and delegated administrators, all of whom share a separation of powers and owe different duties and obligations to one another. This is just like a bill of rights in constitutional law, in which those in power must set boundaries on just how much they can get away with before a court will declare them to be stepping on their brethren's toes. Its a made up fantasy world with its own set of rules and laws--a lot like World of Warcraft, actually.

8th Amendment law is a mess. I was confused about the death penalty before I took the class; now I know where I stand, even though there is much about my newfound position that I do not understand. But in a way, that is good, because its revealed some inconsistencies in my own psyche. For example, I can now tell you a million reasons why the death penalty, as administered in the US, is deeply flawed. It is an unfair, racist system that arbitrarily, incorrectly, and unnecessarily imposes death as a way of ironically asserting justice over those who arbitrarily, incorrectly, and unnecessarily impose death on others. Yet, at the same time, there are people who I instinctively feel should be executed. I remember feeling like it was perfectly normal and natural that Saddam Hussein should be put to death. The Chesire killer in Connecticut is another news story that makes me think that execution must be the natural consequence of someone who thinks its acceptable to behave as they did. The execution of mass murderers hardly strikes me as "cruel and unusual," since they are only receiving a fraction of the death they caused in the world. This is what I feel in my gut. And yet, I know in my head that execution is barbaric. That it is retribution. That it is hypocritical. And that criminals are more than just the crimes they committed. There are extreme cases where I feel the death penalty is warranted, and there are extreme cases in which I feel the death penalty is abhorrent. How do I reconcile these two extremes? What do they mean for those cases in the middle that seem both necessary and abhorrent? I have more questions than answers when it comes to the death penalty, and yet I feel like I have greater understanding.

The Right to Competent Counsel

Been a while since my last post. I'm sorry. 2L year now. Same as the first. A little bit wiser, but a little bit worse.

In Strickland v. Washington, the supreme court held that in order for a death sentence to be reversed on account of inadequate counsel, the defendant must show 1) defense counsel's legal strategy at sentencing was unreasonable and 2) the defendant suffered some prejudice as a result of this unreasonable strategy.

The first prong seems self-explanatory, but I recall the professor saying that the court will accept any strategy, as long as the attorney claims to have had a plan at the time.

Meeting with a Professor

Wow, what an amazing person.

First of all, we addressed the motivation problem. Because I am indecisive, I do not always have a personal interest in finding the best arguments to defend my positions, as many of the professors seem to expect. But there is anther option--self-improvement. When I sit down to review a case or understand some doctrine, its not because I care about the case/parties/doctrine. Rather, its because I care about myself, and about making the most of a unique intellectual opportunity. Don't sell yourself short. Understanding the arguments and issues in a case or statute makes me a better lawyer. It means that I will be getting more out of a class, getting more for my money. And in turn, that will allow me to be more effective in the future at whatever I choose to do with my degree. Even if I never become a criminal lawyer, I still will become a more critical thinker if I engage with the rationale for a law instead of just obsessing over the best outline or proper statement of the black letter rule. And even if I am not going to be called on, that does not mean I can not be engaged in the lecture. I should be keeping a running commentary in the notes, tough not to the exclusion of paying attention to what is going on. This is an opportunity to develop thoughts and opinions. Remember how good it felt to realize that I don't support the Castle Doctrine?

Next, we talked about self-discovery and getting off the set path laid for you by society to pursue your own interests. There is room for success in any area of the law, and the courses you take will not necessarily box you in or out of a career. As long as you get a first job, there is room for movement within the field. The professor had a goal of not crying after her third day of her clerkship, and the memory and fear of failure led her to exceed the judge's expectations by the end of the year. Sharply pointed questioning, and the anticipation that every single argument you make will be rebutted leads to a thoroughness of preparation that requires a response to every concern.

Pedagogical Procedure

I need a method for this coming semester's madness. I have the benefit of a semester's experience, and one thing I learned is that consistency wins the race. If I had been doing the good things I was doing at the end of the semester all throughout, then I would have performed much better on finals. What worked? What didn't?

The test I did best on was the one I had the most time to complete, and the test I did worst on was the one I had least time. In addition, the course that I spent the least amount of time preparing for outside of class was the one that I did worst on. Unfortunately, the course I did worst on was also the easiest and the one I felt that I understood the best. But apparently, I did not understand it as well as I thought I did, because when the time came to explain what I knew, I had trouble articulating my ideas in a logical and coherent manner.

The takeaway is that I must not only understand what I have read, but I also must practice explaining what I understand. At first impression, this seems like it means that I will have to do more work. But I'm not so sure about that. Under the "read it until you understand it" method, I spend a lot of time re-reading and trying to think about the context, as well as struggling with the poor wording of the text. I think that if my reading was done with more of written end-product in sight, it would be easier to skip over the unimportant details to narrow in on the truly relevant information. At the same time, briefs are a monotonous and ineffective use of study time, because they are not written with the benefit of class clarification. In Contracts, I wouldn't know what the rule was to take away from a case, or what issues were important, until after I had the benefit of the professor's questioning. By the end of the semester, I would type up the class notes and reformulate them into an outline format by incorporating the structural organization and contextual background of the hornbook and commercial outline. I believe that this is the most effective way to study:

1) Find the assigned reading in the hornbook and read the relevant section.

2) Make an outline of this section.

3) Read the case; type the issue/rule/reasoning (no more than a few sentences) into the correct place on the hornbook outline.

4) Note in class what aspects of the hornbook the professor explains. Modify case summary so that it is in line with professor's explication. Flesh out elements of hornbook outline that professor alludes to in class.

5) Read E&E cover to cover. Work ahead. Start taking practice exams by April 1st.