With what little time I have left in my clerkship, I must confess that I am going to miss it. I certainly recommend it to anyone, and I believe it's reasonable to assume that anyone who took a clerkship would agree that it's a wonderful experience. I've written about clerking a few times over the past few months, so here are some more thoughts about it.
I could write many things about it, and perhaps I will write more over the next month and between the time I start the new job, but I'll hit on the high points since now is the time people are probably getting their applications together to apply for clerkships to begin in fall 2009.
Over the course of your clerkship, and hopefully early on, you (the clerk) will start to get a feel for your judge and the way cases are handled in your court. The workload probably accelerates this effort. I found the best way to learn the writing style of the court (and more importantly, the judge) was to read carefully other opinions that had been written in whatever area I was covering. Not only did that give me a good idea for the law, it gave me a good idea of what facts were considered important and how they were presented.
After a dozen or so cases and probably as many weeks, you should become more comfortable in spotting the underlying issues that are really being debated within whatever area of the law is. This is usually more clear in criminal cases, since there are 50 state jurisdictions and over a dozen circuits (plus a supreme court) that have probably already answered the question, albeit perhaps in different ways. I was always pleasantly surprised when I saw a brief intelligently cite to how other jurisdictions or circuits have resolved or handled various issues, and obviously my role as a clerk was to attempt to synthesize them into some workable and easily read format.
After eleven months of dealing with various criminal issues, I am certain I can put together a brief that would either affirm or reverse any criminal conviction (depending on what side I am on), or at least cause the court some pause in going with the other side. (This last comment is a joke).
At the halfway mark, you should be able to spot whatever issue and gauge relatively quickly the merits of the case. Given the volume, you probably have already learned this, and if you've set your RSS feed to whatever decision the US Supreme Court (or your fellow clerks) have written, you should be well aware that current issues always crop up pretty quickly in unforeseen ways. At the very least, if you have the opportunity to analyze some newly created precedent (good or bad), why not use it?
By the end, however, you'll probably be pretty anxious to get started on learning the ropes at a job where your role is less of a neutral arbiter and more of an advocate. Chances are a lot of your habits will carry over, and you've gained a perspective that is valuable to whatever firm you've decided to go with. You'll also be pretty used to the government hours, and I would venture to say that it's fair to assume that's one nicety you won't be able to take with you.
I'm sure I have some other thoughts rolling around in my head about this, but that's enough for now. If any other clerk has something to add, feel free to comment away. I'll save thoughts on the clerkship bonus, some updated application thoughts, and what not for another day.
Tuesday, August 05, 2008
Less than a month of the clerkship to go
Friday, August 01, 2008
Too fit to be president? Has our country become this lazy or has the media through its 24-7 coverage?
This headline makes the article almost worth reading for its ridiculousness. See WSJ's Too Fit to Be President? Facing an overweight electorate, Barack Obama might find low body fat a drawback. Now there have been some poorly marketed commercials coming out of both sides lately, and the only effect it is having is on the mental acuity of the nation. But this article puts the icing on the cake.
Regarding the McCain ad comparing Obama to a celebrity like Paris Hilton and Britney Spears. I agree with the majority of pundits that this is a very unfocused commercial and sends out mixed messages. I'll not consult my marketing and advertising notes for the exact reason, but I'll simply make a conclusory statement that it's ineffective.
If anything, it's playing into the undercurrent of this campaign that McCain is cranky since it reminds me of something nonsensical that my grandfather would say when he didn't like something but couldn't quite articulate why. There's nothing wrong with opinion; I just see this one being irrelevant. On the other hand, we have become a gossip hungry society complete with voyeuristic tendencies, so maybe it's more effective than I think. On the other hand, if these celebrities haven't been hurt too monetarily by their shenanigans, I doubt this ad will fare any differently when it's all said and done.
Regarding this WSJ article, is it attempting to argue something along this logical premise? Americans are fat and overweight and have positive associations with being fat and overweight. Obama is not fat and overweight. McCain is fat and overweight. Therefore Amerians prefer McCain over Obama. If this is the case, it makes no sense. Yes, maybe all of us overeat and should be in better shape. Who better to look toward than the president to set an example for the rest of the country. I remember when the Clinton-Lewinsky scandal broke and thought how many children are going to hear this story and how it was going to affect their moral compass over the years to come. I'm beginning to think, even in my own case, it had a deeper psychological impact than I initially thought. But after eight years of having a president who ran on the concept "hey, he's someone I could have a beer with" (not that that was bad), maybe it's time to have a president who is not so buddy buddy and is going to take the business of bringing America back up to speed in this world market a little more seriously.
The true mark of leadership is that people are willing to follow because they want to and are inspired to, not because they are told to. Will either candidate's promises bear fruit? Probably not. But which candidate will inspire the next generation to chase after the American Dream? Right now I think there's only one. And his campaign is a little more focused and slightly less negative.
But maybe I'm overlooking something. I'll think about it as I am working out.
Read more!
Thursday, July 31, 2008
Cell Phone Termination Fees Illegal under California Law
I haven't read the case, nor will I have time to, but I saw a headline that sparked at least enough interest to read the article. See California Judge: Sprint's Early Termination Fees Illegal. I'm sure this will make for a much more interesting read on appeal (assuming they don't reach some settlement, which is equally likely), but the gist of it is that the contracts that basically put a $150-200 termination fee if you decide to get out of your cell phone contract early violate a California unfair practices law.
I agree with the decision in principle, on the basis that the contract itself is a contract of adhesion and since all cell phone companies basically have the same language, you really have no choice to avoid it absent not buying a cell phone or cell phone service. Of course, it only triggers if you break the contract also. Setting these issues aside, I would have to read the opinion and become admitted in California to be able to speculate about their trade laws. In either case, the ruling has capability (potentially) of becoming persuasive authority in a different case in a different jurisdiction. Time will tell to what extent this will actually happen.
In the meantime, I will continue with my cell phone plan, notwithstanding the fact that it's inherently a ripoff. But then again, nobody really needs a cell phone, right?
Tuesday, July 29, 2008
The Chinese Olympics
I can't say I'm overly excited about the Olympics. I should be, but I'm not. I have noticed, however, that there is much more news about the weather conditions and press access than the athletes themselves. Maybe that's part of it. At least the world will get a peek at the emerging Chinese market and see exactly what all the fuss is about. That may be worth watching more than the actual games.
Ah, the joy of not having to take a bar exam
A great many people across the country are sitting down over the next two or three days and taking the bar exam. I wish them well, and I will temporarily rest on my laurels because thankfully, I am not in the same boat. Read more!
Saturday, July 26, 2008
YouTube Divorce case ends rather abruptly
I followed this only in passing and only to the extent that it emphasizes my disinterest in family law. Nonetheless, I saw that the husband who was vilified by his ex-wife on YouTube was the victor in their divorce proceeding. While her rant became national headlines and entertainment news fodder, in the end, the neutrality of the law and the prenup did her in. See Husband Wins Divorce From Angry Wife in YouTube Video.
Tuesday, July 22, 2008
Web networking photos and the effect on litigation strategy
This headline jumped out at me the other day. See Eric Tucker, Web Networking Photos Come Back to Bite Defendants. Basically, these pictures are being used as evidence in various trials (likely personal injury cases) and, at least in my take of the article, are invoking from the jury (or better, the judge at sentencing) the opposite of what the defense is trying to portray: antipathy.
At this point, I doubt I'll see anything come up on appeal regarding this issue, and even if I did, it would more likely come in the form of a discretionary call by the judge, in which case it's an uphill sell. If anything, I would question the relevance of some of these pictures, but if it is relevant, then I'm not sure how one could (with a straight face) argue that it's more prejudicial than probative. (Think in Liar Liar: "I object! Why? Because it's devastating to my case!") The pictures don't seem to be used at trial though, and they need not be, they are being used as an aggravating factor at sentencing. It's pretty clever.
This presumably took place in a Rhode Island state trial. For example, the prosecutor in this case used the photos to establish a timeline of events: "Two weeks after Joshua Lipton was charged in a drunken driving crash that seriously injured a woman, the 20-year-old college junior attended a Halloween party dressed as a prisoner." To make the case for an appropriate sentence, the prosecutor then "used the pictures to paint Lipton as an unrepentant partier who lived it up while his victim recovered in the hospital." To the prosecutor's credit, the "judge agreed, calling the pictures depraved when sentencing Lipton to two years in prison." Of course, Lipton's defense attorney notes: "the photos didn't accurately reflect his client's character or level of remorse, and made it more likely he'd get prison over probation." Nevertheless...
The bottom line is that in the age of the internet, everyone should be cognizant of what is going up on you. I know they say you should run a google search once a year on your name, along with your credit reports and what not, but you can preempt this sort of trouble by either making your facebook/myspace profile private; untagging or contacting your friends who put up unflattering photos of yourself, or better, don't allow yourself to be photographed in a compromising situation. As Lipton's attorney wisely observes, you never know when they could come back to bite you: "If it shows up under your name you own it, . . . you better understand that people look for that stuff."
Saturday, July 19, 2008
Batman Dark Knight movie review
I saw the new Batman movie, and I'll say it was pretty good. Kind of long for me and (notwithstanding the suspension of belief already required), some of the storylines were pretty out there (sneaking an airplane into Hong Kong, for example, to extradite a foreign national). Regardless, I thought it was worth seeing, if not in the theater, definitely on your own HD tv. Will the Joker win an oscar? I highly doubt it. Was Heath Ledger a good villain compared to Jack Nicholson? I found their characters much different in a much different story, so it's hard to compare. They are simply different. Nothing good or bad about it.
What I found more interesting is the preview for a new Terminator movie next summer (Terminator Salvation starring Christian Bale), which takes place in the future. Since I have been talking about this for years (and have alluded to this suggestion once before), I think it has much potential, especially if they leave all the time travel stuff out of it. A trilogy though? It reeks of Matrix-esque nonsense. Hopefully it skips over Terminator 3's storyline all together. And given that Arnold is the governor and retired, it seems doubtful he will be in it. We'll see what happens. The preview can be found here (or through a regular Youtube search for Terminator Salvation).
Wednesday, July 16, 2008
JibJab posts a new ad
As any reader of this blog can figure out after a few entries, I appreciate intelligent humor above most other things that make me laugh (although I freely admit that I find many more things funny now than I did a few years ago). I speculated last year on the growth of user-generated content on the internet and its effect on political campaigns and the public generally. See User Generated Content and its Effect on the Political Hemisphere.
Well, sure enough, those clever cartoonists at JibJab have waded into the water again. Be sure to check out (if you haven't already), the newest spoof: Election 2008: Time For Some Campaignin'. The original Bush-Kerry "This Land" spoof is also available here. (The links take some time, probably due to increased bandwidth from today's release - but be patient).
CNN also has a condensed link in its report about it, which should be active for a few weeks anyway.
Read more!
Tuesday, July 08, 2008
Texas Joe Horn's "make my day" killing
I've only paid loose attention to this news story other than to get the gist of it. I see it now as an issue of "good state, bad state" (which varies depending on who you are talking to), but more of an issue of individual state rights. For context of my entry, see Commentary: Was Burglary Worth Killing 2 Men?, Texas Law Helped Clear Man in Prowler Shooting; Discussion from Anderson 360 with Jeff Toobin on the case; Texas Man Cleared of Shooting Suspected Burglars.
I recall seeing on the news that a case with near identical facts is before a jury in New York and the charge is manslaughter. Texas, however, applied their "make my day" law to Horn's actions and the grand jury refused to indict him. I spoke to my friend who lives in Texas about it and he told me that he was all for it and that the law works as a good deterrent. I can't disagree with that logic, and I'm sure the coverage of this case has worked to inform the general criminal population that if you go and rob someone, you may be exposing yourself to a deadly response. Most certainly in Texas; and most likely, in many other states as well.
States very on their approach to handling the results, which is to be expected and part of this state criminal system. Whether the law is right or wrong is a matter for that state's legislature, and to the appropriate degree, the courts. What I find fascinating about this particular story though is how quick the media was to pass judgment on so-called "vigilante justice" down in Texas as opposed to the more "civilized" parts of the country. They have done the same thing with variants of Meghan's Law and other child rape statutes. Hey, if one state wants to pass it and another doesn't, so be it. It makes for good national news though, but for substantive analysis, paltry fuel to the fire of state rights.
If you ask me, I'm siding with Texas on this one. I think there are ways to strike a proper balance, and perhaps Texas has since amended the statute to account for when shooting is appropriate. But in a quick second decision, however, I think the law is better served and justice equalized on a reasonable person standard. Obviously the reasonable people in that particular Texas grand jury thought he was in the right. Those in New York did not, and now it will come down to whether twelve of that defendant's fellow citizens feel the same way. As a lawyer, I have presume that the system will perform its function correctly and justice will be served, even if it's at sentencing. I'm sure that part won't make the news though, unless something goes haywire.
