Friday, December 11, 2009

About me, if you're wondering

Please see my original post here.

It's been a long haul to law school.

I studied fine arts at Wayne State University in Detroit, Michigan. Ask me about Detroit sometime. I have lots of theories and a few stories but don't really understand the city. Detroit chased me out and I can tell you about that, too.

I always knew I wanted to be a painter. I started taking art classes when I was in elementary school. I kept studying art all the way to college and beyond. I graduated college with some honors and I planned to head to graduate school somewhere on the East Coast. In the meantime, I worked a series of low-paying and mind-numbing jobs and one really great position as a freelance art critic for a local newspaper. Those stories about Detroit kept eating at me.

41 South Street, Quincy, MA, 2nd floor apartment. It was mid-morning on a Saturday and I was turning off a hallway light: this was the moment when I knew it had to be law school. It happened that suddenly. This is neither metaphor nor allegory; it's just the facts.

They ought to give you a box at law school orientation to hold all of your old memories and freedoms. I remember learning the multiplication tables in elementary school and thinking that there was no going back. There was no forgetting how to multiply and there was no going back to being that kid who could only add. (Yes, I was that kind of child.) I don't remember how my mind worked before I learned about affirmative defenses and burdens of proof and mens rea and causation. Those stories from Detroit look different to me now. I wish I had had a box.

I'm studying law at Suffolk University Law School in Boston, Mass. I started a decade later than most law students do. I recommend that route, if it's doable. My academic brain was a bit rusty but my empathetic mind was ready to go. I also save a lot of time by not having to prove anything to anyone except myself.

I have great respect for my classmates who always knew they wanted to be lawyers. Starting down a straight path and continuing to its end is commendable. But a meandering route is also okay.
I am a frayed and nibbled survivor in a fallen world, and I am getting along. I am aging and eaten and have done my share of eating too. I am not washed and beautiful, in control of a shining world in which everything fits, but instead am wondering awed about on a splintered wreck I've come to care for, whose gnawed trees breathe a delicate air, whose bloodied and scarred creatures are my dearest companions, and whose beauty bats and shines not in its imperfections but overwhelmingly in spite of them...

Annie Dillard, Pilgrim at Tinker Creek

Image source


Please see my original post here.

The day after Professor Seidman's appearance in my Crim Law class, I'm still shaken. I wasn't surprised by much of what she said, because I knew most of it. Key points: most men are NOT rapists. Most men CANNOT be pushed to rape. Rapists are recidivists, committing an average of seven (7) rapes in their rape careers. See Kilpatrick, Dean G., Rape and Sexual Assault, . Research indicates that one out of every six women has been raped in her lifetime. Id. Numbers vary by population; more than half of all rapes are committed against women 25 and younger. Id. 25% of rapes happen on college campuses. See RAINN's statistic page at . The number of false rape accusations mirrors that of just about every other crime. See "Project Safe," from Vanderbilt University. But see the Fox News article "False Rape Accusations May Be More Common Than Thought" and recognize that bias can come from both sides. How many people do you know who have lied about a burglary (breaking and entering the dwelling of another at night with the intent to commit a felony therein)?

Professor Seidman had an interesting thought about attitudes toward rape. We find rape shameful, she said, because it involves sex (though, she added, "I would argue that rape has nothing to do with sex"). We're ashamed of the way we think about rape. I take this to mean two things. First, we're ashamed that we, in the 21st century, are embarrassed to talk about sex. Second, we've all taken in pieces of rape mythology and we're ashamed to admit it. Maybe she shouldn't have had that last drink. Maybe her dress was too tight. What was she doing going up to his hotel room? Why did she lead him on and then expect him to stop? What was she doing walking alone at night? Why was she acting sophisticated beyond her years?

I am surprised by the responses that came from some of my peers. In class, we discussed an alleged rape by Boston attorney Gary Zerola, as described in The Boston Globe. This is law school. 90 very bright individuals sat in that lecture hall. Some of them were appalled at the way Zerola's attorney, parroted by the journalist, blamed the (alleged) victim for the rape. Others suggested that it's the defense attorney's job to discredit the witness and any journalist would simply report the facts to his newspaper's audience. See The Boston Globe's article, "Woman describes alleged assault by lawyer," John Ellement, 2008. [The accused rapist, Gary Zerola, graduated from my law school, Suffolk University.] Ellement quotes the alleged rapist's attorney, Janice Bassil, in writing about the alleged victim "She liked to party," Bassil said. "She liked to drink. She liked to do drugs. She acted sophisticated beyond her years."

Then: "Ex-Prosecutor Acquitted of Rape Charge," John Ellement, 2008. Now I should take back all that stuff I wrote about the "alleged victim" and "accused rapist."

We have rules about what women should do to prevent rape. Women should not walk alone at night; women shouldn't drink too much; women shouldn't lead men on; women should not wear tight clothes or low-cut blouses or sexy underwear. See Myths Encyclopedia, .

Feminism n. Belief in the social, political, and economic equality of the sexes. I've not heard much about how men are taking risks when they wear tight jeans. How many drinks is too many for a man? Can a man flirt with a woman and still expect to walk free at the end of the night? Should that man walk alone if he does walk free at the end of the night? (I'm focusing here on heterosexual rape, though I know male rape survivors.)

Hey, you victim-blamers: I'm not buying what you're selling. Get out of my way.

Law School and Discussions of Mental Incapacity

Please see my original post here.

In 1937 the Massachusetts Supreme Judicial Court referred to a mentally ill woman as "mentally deranged," and "ugly, violent and dangerous" but still found that she could form the requisite intent to commit a battery. McGuire v. Almy, 8 N.E.2d 760, 761, 762 (Ma. 1937). The defendant was mentally ill and struck her caregiver with a chair; she was subsequently successfully sued for battery. Id. at 760. Mental illness, in torts, does not negate intent. Id. at 762.

A schoolteacher took a leave from work after suffering a "nervous breakdown" [sic: words from 1969]. Ortelere v. Teachers' Retirement Bd. of City of New York, 25 N.Y.2d 196 (N.Y. 1969). Ms. Ortelere's doctor diagnosed psychosis; a court found voidable a contract into which she entered while still in emotional and mental distress. Id. at 205. Contracts are voidable when one lacks the mental 'capacity' to form them. Id.

These cases, discussed briefly in my law school casebooks and classes, opened up opportunities to talk about all sorts of ramifications regarding legal intent and defenses in reference to the mentally ill. They created fantastic opportunities to discuss subjectivism vs. objectivism; mutual assent; ability to form intent; and maybe even what it means to be frail (as most of us are, sometimes) in a society that presumes that we are, at all times, strong. The discussions did not get that far, and it's a shame. We only skimmed along the edges of what could have been a deep examination of where incapacity meets volition and what could be considered so disabling as to render a person incapable of contracting (or capable of battery). (Hey, I know it's law school, and I know it's first year, but we're still people living in a society that tries--or should try--to protect those who need protection.)

As Cara points out on Feministe, "stereotypes about disability/mental illness are constantly utilized in attempts to expose the 'fakers' and...the fact that they’re used in this way by people in positions of authority only reinforces the idea that the stereotypes must be true." Such stereotypes sometimes lead to narrow thinking and the assumption that "I'd know if someone was crazy." In America, around one in four individuals has a diagnosable mental illness at any time. When you're sitting in class, and the professor briefly mentions a mental incapacity defense, do you know that a person beside you or behind you or two rows away may be sinking into her chair or his own head? Or he may be sitting tall, knowing that he's living with mental illness and doing just fine, thank you.

Law students become lawyers and lawyers run the country. Attorneys become senators and governors and presidents but also take clients every day through court systems to shape policy and law. That's what I call running the country. And you know what? A large number of those lawyers have some form of mental disorder. They're not incapacitated and they're capable of forming contracts and they probably don't meet most of the stereotypes you have about the mentally ill. Hey, guys, the ReasonableMan--average but not mistake-prone--absolutely does not exist. Please get used to it now; then get to the business of changing the world.

Brought to you by the letters F and R

Please see my original post here.

[Feminism & Rape]
My CrimLaw professor is the most gently feminist/egalitarian professor I think I've ever been in class with. He doesn't shout his views because he just walks the walk, quietly and steadily and all the time.

On top of the basics of criminal law (actus reus + mens rea + causation + no defenses), Professor Cooper's class has included a lot of policy discussions. I didn't know about jury nullification. Jury nullification is a little-known ability for a jury to return a verdict contrary to law. Professor C introduced the Butler view without taking a stance either way. See Professor Paul Butler's "60 Minutes" interview on the black community's obligation to utilize jury nullification (and be aware that Butler's views are very controversial):

Do you know why the basic theories of punishment don't work? I don't entirely, either, but I know that they very often don't. See 'Inside Lorton Central Prison' by Robert Blecker. Stanford Law Review, Vol. 42, No. 5 (May, 1990), pp. 1149-1249 (discussing the ways in which traditional modes of punishment fail the felons and society). But see also Robert Blecker's Among Killers, Searching for the Worst of the Worst (stating that the death penalty is warranted in extreme cases). I'm grateful to Professor C for encouraging the class to think about policies behind facets of criminal law.

So there's all of that. Then last week we moved on to our rape unit. Professor C introduced the unit by alerting the class to the fact that many of its members are either rape survivors or had been falsely accused of rape. "So give your opinion," he said, but do so carefully. He stopped cold-calling and instead took volunteers for class discussion. There's a special place on Mount Olympus for professors like Cooper.

Class discussion on rape was difficult for a lot of people for a lot of reasons. Women spoke with strained or shaking voices. Or women spoke with ferocity. Or women spoke quietly but sure-footedly. Sometimes students' emotions got ahead of their words and we could hear their frustrations as they struggled to say exactly what they meant. Professor C let them work it out. The men who spoke mostly wondered why a man would continue if a woman said no, even if she said so quietly. (Yay for feminists!)

I want to protect every survivor in the room against any bit of blame. Look: women's bodies sometimes revolt against their minds, but it's their minds that matter. A no is a no, regardless of how quietly it's spoken. If a man continues in the face of a 'no,' he does so at his peril. Fear doesn't manifest itself in the same way in all situations. Sometimes women are so afraid that they do nothing. We say we don't blame the victims, but we do. We do.

Students make provocative statements that some of us can't not respond to. (I'm really sorry I shouted in your class, Professor C. I really am.) Arms wave, students gasp. In it all Professor Cooper pushes students to the extents of their views. (What if she said X? What if she said X and Y? What if she said X and Y but in a tone that sounded like Z?)

Professor Cooper has invited an expert in rape culture and law to the next class. I'll let you know how it goes.

(Feminism & Rape)

The world was a song

Please see my original post here.

You guys, this may be a bad sign.

I had a dream last night. That isn't the bad sign, although this is the first dream I've had in a long time that wasn't a nightmare and it may be a bad sign that since law school started I've only had nightmares.

But that's not THE bad sign. Last night I had a dream that I wasn't in law school. It was summertime and I was outside, standing in the sun, talking to some very nice adults who weren't carrying books. We talked about absolutely nothing to do with the law. That's right; nothing about the statute of frauds, no discussion of rape or homicide, no talk of open memos or writing out hypos, and absolutely nothing about personal or subject matter jurisdiction. In my dream I was wasting time and I didn't feel guilty. (See, that's one thing about law school. There's always more reading to be done, and if I pause to do anything that's not school-related I get panicky and flooded with guilt. Taking 15 minutes to blog even kills my psyche. I'm going to have to spend an extra half-hour with my flashcards tonight to make up for this indulgence.) See, e.g., Holy. Crap (holding that when exams are near the stress gets worse).

I had this dream, and it was a good dream, and I was happy in my dream, and I wasn't flooded with adrenaline thinking about all the work I had to do and wondering if I'd survive the next cold call. But here's the other thing: in this dream my mind was...blank. Sure, I woke up in a state of relaxation that I've not experienced since August. And sure, my body was relaxed and my tension headache was gone. And, sure, I was standing in sunlight, outside, during the DAY. Once I got over all of that, though, I decided that [maybe] this law school thing was [maybe] a good idea [maybe]. Most of the time, it's not fun. Most of the time, I'm filled with anxiety. Most of the time, I wish I had spent an extra hour studying the night before (see above). Some of the time, I wonder if I actually do want to be a lawyer. (I do.)

But most of the time, it's all right.

Image source.

The best thing I did...

...was to back away from perfectionism. I had great intentions. I started the semester with a clean apartment and exquisitely briefed cases. (Read the case once; read it again; brief it; read it again.) Last night I briefed four cases in less than an hour. ReadBriefReadBriefReadBriefReadBrief aaaaand save. Property book away; on to Civ Pro. CivPro done; on to study aid.

In the beginning, I thought maybe I'd try for top in my class. As exams near I realize I will be happy with an A, B, or C(the curve is a B). Hey, a C is good enough, right? Is it good enough for me? I don't know. And I'm too tired to decide right now. I have outlines to review and study aids to read.

But law school has definitely become the priority. My apartment is a wreck. My summer clothes are in piles on the floor and pairs of shoes have divorced and moved on to find different mates. I need to empty my trash but the trip to the dumpster takes too much time and energy. My plant died. I probably should have been watering it. My open memo materials are spread from the top of my printer, across my desk, onto my tv stand, and down on the floor. Whatever. I know where it all is when I need it.

Law school average is still pretty good. Here's hoping it'll all come out in the wash.

dead plant (not mine)

Image source.

Please see my original post here.

Holy. Crap.

Please see my original post here.

Suddenly, all of my classes are hard. How can I possibly memorize all the types of property interests? In personam jurisdiction is melding with subject matter and arising under and International Shoe and I'm not entirely sure what happened to Pennoyer v. Neff. Good lord; how am I going to remember the distinctions between first degree and second degree murder? Please, someone explain the common law statute of frauds to me and when the heck am I going to have time to rewrite my open memo? Exams start in less than a month and I'm out of food but I have no time to go grocery shopping. Do you know how tired I am?

If you're getting ready to start law school, don't fool yourself into thinking you know what it's going to be like. You have no idea. But even on my worst days I'm glad to be here.