When I started law school, I had moved to a new city and state, and I did not know anyone other than my classmates.  My high-school and college friends were several states away, as was my family.  Because everyone I knew was a law student, law school became all-consuming, and it was easy to miss what was going on in the “real world.”

A few months into my first year, I noticed a flyer inviting people to participate in the university’s equestrian team.  I had been riding since I was four years old, so the team seemed like a good fit for me.  I joined the team and became the only law student — the only member who was not an undergraduate, actually.  The team practiced one night a week, and those practices were important to me for a number of reasons. 

First, law school was completely foreign to me.  None of my relatives were lawyers; in fact, I did not even know any lawyers or law students (other than my own classmates) when I started law school.  So, during my first year, particularly during my first semester, everything felt foreign to me.  Riding, however, was something I had done almost all of my life, so that one evening a week when I practiced with the equestrian team, nothing was foreign; I was in an environment that was entirely comfortable.  I understood the expectations and could just relax and enjoy being in the barn and around the horses.

Second, team practice forced me to exercise, even if it was only one evening per week.  As we all know, being a law student (and frankly, being a law professor) can be a pretty sedentary business, so it was good for me to get out of my apartment and onto the back of a horse for a few hours each week.  (I also had to haul my saddle and other equipment on the city bus for the first few months, which was in itself a form of exercise, but that is a story for another day.)

Finally, and perhaps most importantly, being with a group of people who were not in law school (and who frankly had little interest in anything about law school) forced me to keep one foot in the world outside of the law.  Spending time with my teammates even one night a week helped me escape the world of torts, contracts, and property for awhile and remember that there was a lot going on that had nothing to do with school.

For those three reasons, the time I spent riding on the equestrian team was some of the most valuable time I spent as a law student.

Since I married a classmate following graduation, I don’t need to tell you how useful or enjoyable that was, except to report that I am still very happily married to Mark, also a member of the Class of 1978.

I have very fond memories of the potluck dinners shared by the women students of my class.  We weren’t a huge number — 28 of the 130 graduating students.  Remarkably, most of us would attend these ad hoc affairs every other month or so.  Mothers would bring their babies.  It allowed us to develop a bond that was pretty unique.  Besides the wine and food, we shared outlines (I understand good outlines are still a hot commodity), strategies, complaints, fears, and hopes.  It was, in fact, an informal collaboration that worked very well for me and I suspect many others as we struggled through those three tough years.

While women are no longer such a small group, I imagine these sorts of gatherings still occur among all the students in some manner.  It was for me an enjoyable, healthy way to deal with the anxiety and stress of the law school experience.  And at that time, with one-third of the first year students not making it to the second year, it was indeed stressful — perhaps more about that era of the law school later.

The Question of the Month is: What was your most useful or enjoyable extracurricular activity in law school?

In the Yale article Prosser traced the various exceptions that developed since Lord Abinger’s 1842 proclamation of the rule that tort liability would not aid one with no privity to a contract who was injured as a result of its breach.  His second article on the subject, some six years later is his final chapter in that story [William L. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791 (1966).

What initially attracted me to the Yale article was Prosser’s status as an icon.  I used his casebook and hornbook as a law student.  He was “Mr. Torts.”  But as I matured I found it offered so much more.  It clearly demonstrates that while some courts treat ancient rules as if they were holy writs, stare decisis is not a commitment to intellectual stagnation.  I believe that nowhere in the law is this truer than in Torts.  It also made clear that legal scholarship does not have to be a stranger to humor.  The two can coexist. 

Thus, in my own writing I always attempt to be a critic, albeit one who at times can point to humorous situations in the law.  In my teaching I attempt to call the students’ attention to how old law is not necessarily good law and always to be alert to areas where improvement is needed and to develop the ability to clearly articulate why that is so.

Llewellyn begins by asserting that “law” is one of our “loosest of suggestive symbols.”  “Law” ranges in his mind from such simple forms as statutes and appellate holdings to a range of socio-cultural control devices and institutions.  “I have no desire to exclude anything from matters legal,” Llewellyn says.  “I am not going to attempt a definition of “law.  Not anybody’s definition; much less my own.”

However, Llewellyn then goes on in the bulk of the article to emphasize a particular “focus” or “point of reference.” 

He acknowledges that written rules or precepts can help fix the attention of legal thinkers, but he thinks it’s more useful to consider law as it emerges from human contacts with courts, the legal profession, law enforcement, and other legal institutions.  This is “law-in-action” rather than “law-in-books.”  It is “law” on the level of “isness” rather than “oughtness.”  It is messier and less predictable, and Llewellyn understands why legalists might shy away from the conceptualization.  “Always the night of words will close again in beauty over the wild, streaked disturbance.”

In conclusion, Llewellyn suggests “law” need not come only from human contacts with legal institutions.  Beyond the legal institutions, after all, is the whole “social set-up.”  “Part of law, in many aspects, is all of society, and all of man in society.”  Thoughts of “law,” if approached from the right point of reference, can invite consideration of normative human behavior in general.  This, in turn, might even lead us to reflect on what we mean by “humanity.”

This is the subject of State v. Stewart, 420 N.W.2d 44 (Wis. 1988), which I teach in my Criminal Law course.  The case resonates with me on several different levels.

First, there are the personal connections to the case.  Not only am I regular rider of Milwaukee buses, but I often find myself downtown waiting in a particular three-sided plexiglass shelter – wondering if this was the scene of the Stewart heist.  Moreover, as someone who has lived all of his adult life in cities – often in or close to economically depressed neighborhoods — I have often been the subject of requests for change, and have sometimes feared for my own safety from especially persistent or belligerent panhandlers.  So, I can’t help but identify with Kodanko, probably more so than with any of my other Criminal Law victims.

And, putting myself in Kodanko’s shoes, I’m not sure if I would have felt that Stewart actually crossed the line from aggressive panhandling to attempted robbery.  (Interestingly, Kodanko himself did not report the incident to police, perhaps reflecting a certain ambivalence on his part, too.)  The evidence strikes me as equivocal.  There are certainly aspects of the encounter that smack of intentional intimidation, and I can understand why Kodanko later testified that he felt threatened.  On the other hand, no one ever touched him, raised a hand to him, or displayed a weapon.  Also, the way Stewart quickly backed down and then simply walked away to the restaurant across the street (where he could be easily found by the police) are hardly indicative of an intent to rob or a guilty mind.

Stewart was nonetheless convicted, and the Wisconsin Supreme Court affirmed this result.  The Supreme Court’s opinion is used to teach the elements of attempt liability.  And it’s hard to quarrel with the way the court analyzed each element; you can see why, taking each element separately, the trier of fact could have rationally decided that the element was satisfied by the evidence introduced at trial.  Still, I can’t avoid the sense that somehow the forest has been lost for the trees.  In a system that takes the presumption of innocence seriously, and that demands proof of guilt beyond a reasonable doubt, it strikes me that Stewart’s true intentions remain a little too uncertain to support a felony conviction.

And, indeed, there may not even be any “true intentions” to find.  This, for me, is the deepest level on which Stewart resonates, that is, as an illustration of the shortcomings of conventional mens rea analysis (particularly as embodied in the Model Penal Code). 

Criminal law is premised on the patently false assumptions that people act on the basis of rational deliberation; that actions are guided by durable, consciously perceived purposes; and that a trier of fact can reliably reconstruct those purposes after the fact on the basis of evidence introduced at trial.  In real life, we know that our decisionmaking is more intuitive than logical; our minds are constantly flitting from one idea to the next; our actions often feel disconnected from any conscious exercise of will; and our motives are multifaceted, dynamic, and often opaque even to ourselves (let alone twelve jurors).  To be sure, these irrational (or, perhaps more accurately, arational) tendencies are all a matter of degree, and, in some criminal cases, the defendant seems to have acted in a manner sufficiently close to the rational actor model that we can feel reasonably comfortable making use of the overly tidy culpability categories of modern criminal law.  Stewart is not one of those cases.  What was Stewart “really” thinking?  Trying to get some money?  Trying to have some fun with his friends?  Trying to rattle the cage of “the man”?  Was he acting on unconscious or semiconscious impulse, or did he have a conscious plan?  If he did have a plan, did it change from the time he reached the shelter to the time he started yelling to the time he reached for his pocket to the time he headed for the restaurant?  If his purposes changed, or were multifaceted, which should control for determining his criminal liability?  Was there in some sense a dominant purpose?  Based on a cold record twenty years after the fact, I have no idea what the right answer is to these questions.  More importantly, I suspect that Stewart himself does not know.

The case involved David Oakley, who fathered nine children with four women and was impossibly behind on his child support payments.  Manitowoc County Circuit Court Judge Fred Hazlewood placed Oakley on probation following his conviction for refusing to support his children.  However, the probation was conditioned on Oakley having no more children until he could support the ones he already had.  A four-judge majority of the Wisconsin Supreme Court confirmed Hazlewood’s order. 

Commentators predictably discussed the decision’s ramifications for the right to procreate and the larger right to privacy. 

A few were also intrigued that all of the Court’s men were in the majority block while the three women on the Court dissented.  For my own part, I am most struck by the way all of the members of the Court, regardless of their positions on the constitutional law issues, appeared to agree in dicta that Oakley was the ultimate “deadbeat dad” and, by extension, a nefarious agent of poverty.  If we could only get the Oakleys of America to make their support payments and to live up to their responsibilities, the thinking went, we could relieve our society of an immense social problem. 

The characterization of Oakley and the analysis of poverty as a social phenomenon were too simple.  Born in prison, virtually uneducated, and never able to hold a job, Oakley exemplified an impoverished life as much as he caused poverty.  The embarrassing reality of poverty in America cannot be eliminated by making Oakley and people of his ilk pay up.  We instead need substantial income support for single-mother families, expanded public child care, and extensive training and employment programs.  But alas, it’s easier to point at individual failures and weaknesses than to address the immense inequities built into the very structure of our society.

I also liked State v. Miller, which asked the question of whether the Amish could be fined for failing to display the bright orange “slow moving vehicle” sign on their buggies despite the fact that its display was inconsistent with their religious beliefs. What I remember most about that case was that on the day of the oral argument, the Wisconsin Supreme Court hearing room was filled with Amish men with their dark clothing and long beards, listening intently to the arguments about the First Amendment. It was a very different scene than we were used to seeing (lawyers in dark suits, white shirts and red ties).  In writing that opinion, I watched a piece of video evidence which showed a very slow moving buggy going off in the distance at night time with white fluorescent tape on the back. The video seemed to last forever . . . but the tape remained very visible. Understanding how what seemed to be a simple factual case intertwined itself with the First Amendment led to a fascinating exposure to the beliefs of the quiet Amish culture. The Amish prevailed on that case because the tape was a reasonable alternative.

Finally, I want to talk about a case that I often refer to when teaching groups about the work of a supreme court justice and an impartial court. In the last ten years, there is a lot of discussion about the partisan nature of decision-making. Many people assume judges take their agendas to the court and then vote accordingly when the cases come up. I often get asked whether a particular judge is a “liberal judge” or a “conservative judge.”  The case I like to tell them about is State v. Matthew Janssen, which was originally heard in Appleton, Wisconsin. Appleton is a very politically conservative community. Mr. Janssen and his friends stole a number of American flags. He defecated on one of them, leaving a highly offensive note in its place. Well, as you imagine, the community was understandably up in arms about this horrible treatment of the flag. The state charged Mr. Janssen with a violation of the Wisconsin flag desecration statute. The trial judge, courageously and despite much public outcry, held that the statute was unconstitutional. The case was appealed to the Court of Appeals, where three judges affirmed the circuit court’s holding. The case then came to our court.

Justice Jon Wilcox was assigned the case and wrote the unanimous decision. Justice Wilcox, often classified as a “conservative” justice, obviously was personally conflicted in writing the decision. He wrote the unanimous opinion which held that the lower courts correctly concluded that the statute was unconstitutional. What is helpful for teaching purposes is that, a reader can sense Justice Wilcox’s pain  in reaching a decision that was legally correct but morally offensive to him. He wrote:

Having reached this conclusion, we pause to note the extreme difficulty inherent in writing a decision such as this . . . . Our final assessment of Janssen’s behavior is no different from our initial, instinctive reaction to the facts of this case: we are deeply offended. Janssen’s conduct is repugnant and completely devoid of social value. To many, particularly those who have fought for our country, it is a slap in the face. . . . But in the end, to paraphrase Justice Frankfurter, we must take solace in the fact that as members of this court, we are not justified in writing our private notions of policy into the Constitution, no matter how deeply we may cherish them or how mischievous we may deem their regard. . . .

That unpopular decision made me very proud to be a member of that Court. Despite personal feelings, politics, or desires, the justices did what they had been elected to do. They applied the law, despite public opinion. That is what being a judge is all about.

The first of my favorites is considered in my Torts class.  It is Quesenberry v. Milwaukee County, 106 Wis.2d 685, 317 N.W.2d 468 (1982).  It arises in the discussion of the duties of owners and occupiers of land to those who come upon the property.  It is referenced to show how, at times, state legislatures see fit to modify common law rules.  The case dealt with a provision of the Wisconsin Statutes in effect at the time of an accident (then § 29.68) that barred recovery for injuries received while engaging in “recreational” activities on lands of another. 

The plaintiff broke her leg when she stepped into a hole on a golf course fairway.  She alleged that the hole was not easily visible.  In holding that the statute was not applicable to the plaintiff’s case, the court construed the legislative intent for the statute to apply to “the type of activity that one associates being done on land in its natural undeveloped state as contrasted to the more structured, landscaped and improved nature of a golf course.” 106 Wis.2d at 693, 317 N.W.2d  at 472.  This case also allows noting to the students that the Wisconsin Legislature subsequently amended the statute (now § 895.52) and in so doing stated that the new “legislation should be liberally construed in favor of property owners to protect them from liability” and that it “is intended to overrule any previous Wisconsin supreme court decisions interpreting section 29.68 of the statutes if the decision is more restrictive than or inconsistent with the provisions of this act.” 1983 Act 418, § 1.  It helps for the students to be aware that, at times, member of the legislature do read court decisions interpreting legislation and can act to overturn interpretations they do not like.  I close the discussion of the case by noting that I am unaware if Quesenberry was one of the cases the legislature was unhappy with.  I also note that when I first read the opinion I sent a letter to its author, Justice Day.  Therein I said that either he was a scratch golfer or never played the game because the vast majority of golfers spend most of their time on the “natural undeveloped” portions of golf courses.

The second “favorite” is Gross v. Lloyds of London Ins. Co., 121 Wis.2d 78, 358 N.W.2d 266 (1984), which is considered in my Insurance course.  In August 1982, at The Experimental Aircraft Association’s annual fly-in at Oshkosh, an unoccupied aircraft owned by the insured rolled into the tent occupied by a young woman. She was severely injured by its operating propeller. The plane owner’s insurer investigated and determined that the woman’s damages greatly exceed the policy limits of $100,000 and that their insured’s liability was clear.  It unsuccessfully attempted to settle the case for that amount with the woman’s attorney. It then attempted to tender the policy limits into court so as to be relieved from any further duty to defend its insured.  The Supreme Court held that because the insured had not received notice of the change in the duty to defend provisions of the policy, the insurer’s tender of policy limits into court did not relieve it of the duty to defend.  It further held that “for an insurer to be relieved of its duty to defend upon tender of the policy limits, the ‘tendered for settlements’ language must be highlighted in the policy and binder by means of conspicuous print, such as bold, italicized, or colored type.” 121 Wis.2d at 89, 358 N.W.2d at 271.  Then Justice, now Chief Justice, Abrahamson concurred in remanding the case to the trial court, but she argued that it should be remanded for an evidentiary hearing as to whether the insured knew before the fact that the insurer could terminate its defense effort.  She noted that an appellate court cannot make a finding of fact.  She also said she “cannot join the majority in its adoption of a ‘readability’ and ‘notice’ rule for binders and insurance policies. These are matters for the legislature and the commissioner of insurance.” 121 Wis.2d at 91, 358 N.W.2d at 272.  I also advise my students that the case caused me to write a letter to Justice Abrahamson in which I stated that for the first time I could remember I agreed with one of her opinions in a case dealing with a subject I teach.  The letter came back a few days letter with a penned note at its foot: “My God, I must have done something wrong!  S.”

In County Materials, the Seventh Circuit, among other items, analyzed whether County Materials (a Wisconsin corporation) could sustain a claim of “patent misuse” against Allan Block (a Minnesota corporation). The case is an interesting one because County Materials is a great example of what, in her opinion, Judge Diane Woods (awesomely) refers to as a “non-patent, patent case” that falls within the jurisdiction of the regional courts of appeals, rather than the Federal Circuit, because the dispute before the court was not one where federal patent law creates the cause of action or is necessary to resolve the circumstances of the case. 

The jurisdictional a rule was created by the Supreme Court in Holmes Group, Inc., v. Vornando Air Cir. Sys., 535 U.S. 826 (2002). Holmes has allowed the useful development of more diversity in the jurisprudence over a number of ancillary doctrines in patent law, such as patent misuse and food and drug law. While I remain firmly agnostic over the outcome here — not the least because County Materials was ably represented by Milwaukee’s very own Michael Best & Friedrich LLP — I do think that the Holmes rule has served one key purpose in the patent regime. The Holmes rule, while not undermining the important centralizing role of the Federal Circuit, has created more diverse perspectives on key patent doctrines in light of the particular expertise of other circuits (here, the Seventh Circuit has typically played a key role in enunciating thoughtful antitrust principles). Such perspectives, I think, allow for a healthy and rich jurisprudential dialogue on patent law doctrines that has often been lacking, given the long shadow cast by the Federal Circuit in this area.

The movie starred Gregory Peck as attorney Atticus Finch who represented an African American man, Tom Robinson, who was wrongfully accused of raping a White woman in a southern Mississippi town.  The evidence clearly established that Robinson had not committed any crime against the alleged victim.  Rather, the facts indicated that the alleged victim’s father had physically assaulted her after witnessing her kissing Robinson.  Notwithstanding the evidence, the all-White jury convicted Robinson.  Hence, Professor Blinka was correct that Finch lost the case.  However, the movie would have less emblematic of the times if the jury had acquitted Robinson.  Five very high-profile real life murders during this era reflected the impossibility of Finch’s task.  An all-White jury exonerated the suspects of the 1955 murder of Emmett Till in about one hour even though the evidence established their likely involvement in the murder.  Medgar Evers, a civil rights pioneer, was killed in Mississippi during 1963.  The evidence pointed to the guilt of the primary suspect; however, two all-White juries deadlocked on his guilt.  The suspect was finally convicted during 1994.  The civil rights workers James Chaney, Andrew Goodman and Michael Schwerner were brutally murdered in 1964.  No one was charged with these murders until 2005 even though suspects had been implicated shortly after the deaths. 

I was born and raised in an integrated community in upstate New York after these killings.  The movie To Kill a Mockingbird was my first exposure to the tumultuous civil rights period.  I watched the movie for the first time as a child with my parents. The movie had an immediate impact on me.  I experienced a range of emotions – anger, shock, confusion and sadness. The sadness, anger and shock resulted from the conviction and subsequent death of Robinson.  The confusion resulted from the death of the movie’s villain, the alleged victim’s father, at the hands of a meek neighbor, and the sheriff’s decision to cover up the murder.  Irrespective of the flaws in the court system, the sheriff was obligated to arrest the neighbor.  However, I was also inspired after watching the movie.  Finch made a great personal sacrifice to represent Robinson, including placing his children in harm’s way.  This fictitious character inspired me to become an attorney, to help the disadvantaged and to be willing to make personal sacrifices for a cause.  Consequently, while To Kill a Mockingbird was clearly a fictional tale, I will, indeed, watch it for the 51^st time when I crave inspiration! 

I honestly do not much like movies or television shows about lawyers or legal practice.  It’s not that they are “unrealistic”; they are, after all, entertainment, not educational in purpose.  The lawyers are usually caricatures at one extreme or the other.  On the one side you have the unctuous Atticus Finch-type (I’d rather leave the planet than read or watch To Kill a Mockingbird — Finch loses the big case and gets his client killed; nice job!) and on the other you have the venal sleaze-ball.  I like subtlety.  Denzel Washington’s character in Philadelphia, for example, is affecting because he portrays a lawyer fighting his own demons while battling for his client.

And this brings me to John Mortimer, himself an accomplished barrister, a champion of free speech, and a gifted writer who died last week in Great Britain. 

Mortimer’s alter ego was the quintessential Old Bailey hack Horace Rumpole.  (The Old Bailey is London’s criminal court.)  Over the decades Mortimer wrote scores of Rumpole stories that appeared in print and on television.  I’ll confess that I have not watched a Rumpole episode since the 1980s, but as a young lawyer learning how to try cases I was drawn to the character.  I certainly did not want to emulate Rumpole — an obnoxious fat old guy who drank way too much and ignored his family.  (On my worst days, even I don’t aim that low.)  Rather, Mortimer’s Rumpole had a passion for lawyering along with a grudging affection for his clients, mostly petty criminals, despite their shortcomings.  He relished examining witnesses and trading salvos with opposing counsel and the bench.  Most of all, Rumpole appreciated that trying cases was at once both an art form and an intellectual exercise, and the trial itself a key feature of the rule of law. Rumpole did not judge his clients; rather, he understood that under the rule of law his client was guilty only if the prosecution met its burden of proof.  And in Horace Rumpole the audience saw a lawyer who would rather be trying a case, win or lose, than doing just about anything else in the world.  When this happens you have found your niche in the profession, whatever it may be.

Herman Melville’s novella “Billy Budd” has firmly secured its place in the law and literature canon, but a different law-related work by Melville is my favorite.  Over the last twenty-five years or so I have almost annually read “Bartleby the Scrivener – A Story of Wall Street” (1853), being moved by it more each time.

The narrator of the story is a humane, tolerant lawyer who was formerly a Master in Chancery and who now presides over a small Wall Street law office.  His employees include an office boy and three scriveners, the most eccentric of whom is Bartleby.  Demonstrating a certain “pallid haughtiness,” the latter at first refuses to complete small assignments and then over time declines to do anything at all.  His signature statement when asked to copy a legal document, to run an errand, or – ultimately – to seek work elsewhere is “I would prefer not to.”  In one of the lighter interludes of the story, all of the characters, the narrator included, cannot stop using the word “prefer” in their own comments.

However, the story is neither farcical comedy nor romantic fantasy.  With the lawyer/narrator as our introspective vehicle, we as readers are invited to make sense of Bartleby as a symbolic representation of humankind.  Is Bartleby basically an alienated worker, doggedly copying documents to the detriment of his eyesight?  Is he mentally ill, staring for hours out his small window at a black wall only three feet away? Does he display a hostile passive aggressiveness, refusing to be remunerated, fed, or simply helped?

The questions of course trump the answers.  After the lawyer/narrator realizes Bartleby is sleeping in the Wall Street office, he grasps the true seriousness of the situation.  The lawyer finds going to church useless, and he instead wanders the streets of antebellum Manhattan desperately trying to understand both Bartleby and the human condition.  “My first emotions had been those of pure melancholy and sincerest pity,” the lawyer says, “but just in proportion as the forlornness of Bartleby grew and grew in my imagination, did that same melancholy merge into fear, that pity into repulsion.”  The lawyer realizes that alms cannot solve the problem.  It is Bartleby’s soul that suffers, and his soul cannot be reached.

In the end, the lawyer relocates his office on Broadway closer to City Hall, and the owner of the Wall Street building has the police remove Bartleby.  He is taken to the Tombs, where he refuses to eat or communicate. The lawyer visits several times but to no avail.  On his last visit he finds Bartleby curled up and dead with his face against a wall in the prison courtyard.  “Ah, Bartlelby.  Ah, humanity.”

The “film” that I would like to highlight is actually an episode of a long-forgotten television series from the 1960’s.  Laredo, which aired on NBC from 1965 to 1967, was a western that focused on the adventures of a group of Texas Rangers based in the south Texas town of Laredo.  Laredo was written as a serious western, but one that clearly had a sense of humor about its subject.

The final episode of the series, entitled “Split the Difference,” was structured around the probate of the will of a notorious outlaw named Jake Ringo.  The episode (which was not filmed with the idea that it would be the final episode; it just turned out that way) focuses on the phenomenon of the dead using will provisions to control the lives of the living.  In that sense, “Split the Difference” follows squarely in the tradition of Ambrose Bierce’s “The Famous Gilson Bequest,” which may well have inspired the episode.  It also plays around with one of the cardinal principles of westerns — that once the bad guys make it across the border the good guy law enforcement officers have to stop chasing them.

I remember watching the episode live on April 7, 1967, but my memory has been greatly refreshed by what I found on the Internet.

Following the death of Jake Ringo letters are sent to seven individuals by lawyer E. J. Morse informing them that they have been named as beneficiaries under Ringo’s will and are entitled to share in Ringo’s estate which consists of $75,000 in cash.  The reading of the will is to be conducted shortly in the Halfway Mansion in the town of Mexas, located on the Texas-Mexico border.  Not only in Mexas exactly on the border but the mansion straddles the border line so that part of the structure is in Texas and part in Mexico.  A white floor stripe, marked Texas on one side and Mexico on the other, actually runs throughout the house advising occupants of the country in which they are standing at any given moment.  (Given the Rio Grande River, this seems impossible, but few 1960’s television shows were sticklers for such details.)

Recipients of the letter included the judge who convicted Ringo and sentenced him to death, the hangman who presided over his execution, a renegade Indian woman named Linda Little Trees, three notorious outlaws: Gypsy John Fuentes, Belle Bronson, and Smiley Hogg, and Texas Ranger Captain Richard Parmalee, the leader of the Rangers in Laredo and the moral center of the show.  Parmalee was also the man that apprehended Ringo and made possible his conviction and execution.  (Parmalee was played by actor Philip Carey who went on to a long career (1979-2007) as the Texas patriarch Asa Buchanan on the ABC soap opera One Life to Live.)

Over the objections of several of his fellow Rangers, Parmalee decides to go to Mexas so that he can recover the entire $75,000 which he is certain is stolen and which can be returned it to the banks from which it was taken.  Moreover, two of the letter recipients, Little Trees and Hogg, are wanted for murder in Texas, and this would provide him with an opportunity to capture them and bring them back for trial.  For back-up Parmalee agrees to take two of the Rangers with him.

Unfortunately, the judge and the hangman are not able to attend the reading of the will, having been murdered by Little Trees and her henchman, Blue Dog, in the episode’s opening scene.  However, the other four devisees and Parmalee all make their way to Mexas. 

When the Rangers arrive at the house, they find that the other participants have strategically placed themselves inside the Halfway Mansion.  Little Trees and Hogg, wanted for murder in Texas, stay in the portion of the building in Mexico, while Belle and Gypsy, both wanted for murder in Mexico, have taken up residence in the Texas part of the house.   (We also learned that the beautiful Belle Bronson and the Captain once had a thing for each other, but that he broke off the relationship because she wouldn’t give up her outlaw ways.)

Once the group is assembled, the lawyer Morse informs them that to qualify for their inheritance, each of the devisees must spend the night in the Halfway Mansion.   Those who are still alive the following morning are to split the $75,000 evenly.  It becomes apparent that Ringo’s will was drafted in such a way as to encourage his enemies on both sides of the law to kill each other off.

The Rangers retire to an upstairs bedroom for the evening, but loud noises bring them back downstairs where they find, distressingly for this viewer, that the lawyer Morse has been murdered.  When Smiley Hogg bursts into the room firing a gun that, unbeknownst to him, is loaded with blanks, he is gunned down by the Rangers, reducing the number of living devisees to four (and the number of lawyers to zero).

Suddenly, the gas lights go off, another shot is fired, and when the lights come back on Belle is lying on the floor, fatally wounded.  At this point, the momentarily grieving Parmalee (and presumably most of the western-loving 1967 audience) realizes that something is wrong with the picture.  Just as the Rangers figure out that Ringo is probably still alive, the outlaw appears in the room with a shotgun pointed at the survivors.  It also becomes apparent that the Indian miscreant Linda Little Trees is in cahoots with Ringo and that the two have planned this event to rid themselves of their enemies.  (The hangman and possibly the judge were presumably bribed to let Ringo go, only to be later murdered by their accomplices.)

Little Trees and Blue Dog escort the Rangers back upstairs at gunpoint while Ringo shoots Gypsy in the parlor on the first floor.  When the Rangers reach their room they find three nooses hanging from the ceiling, installed by Ringo so that they can experience the fate to which he had been sentenced. 

In yet another plot twist, it turns out that Ringo only pretended to shoot Gypsy and the two of them climb the stairs with the intention of double crossing Little Trees and killing both Indians and all three Rangers.  However, at the last minute Little Trees herself realizes that she is about to be betrayed by Ringo, so she turns around and shoots Gypsy before he can fire his gun.  She then grabs the $75,000 and takes off.  No longer held at gunpoint, the Rangers are able to subdue both Blue Dog and Ringo and later catch up with Little Trees.  Because they are able to capture her on the Texas side of the house, they can now arrest her for murder.

Little Trees, played by Will and Grace actress Shelly Morrison—she was the Salvadorian maid that married Jack so that she would not be deported–was returned to prison along with Blue Dog.  Ringo was presumably hanged.  The Rangers went back to Laredo for further adventures, only to find out that while they had evaded Ringo’s efforts to kill them they were soon to be done in by their network’s own programming ax.

Not great literature but a clever (by television standards at least) play on the way that western writers used jurisdictional and inheritance issues as plot devices.

First, Komie. I believe that I first read Komie’s stories because my colleague David Papke passed along a copy of one of his books to me. I really enjoyed the stories. I should explain that generally speaking, I am not much of a reader of contemporary fiction. Besides reading for work, I tend to read nonfiction and poetry. My fiction reading list is limited, most of the time, to science fiction novels and short stories, and a few of my favorite novels, which I read over and over.

But Komie’s work grabbed me. The stories were so much more human and interesting than the other popular law-related fiction I had read. Komie’s writing is spare but vibrant. He writes about the worlds he knows well, the worlds that Chicago lawyers inhabit, but he uses that particular world as a lens for viewing human nature and human experience. Probably many of Komie’s stories resonate with me because some of his best work centers on young lawyers entering, trying to enter, or working at, large law firms. As one reviewer stated, “[the Komie stories that focus on large law firm life] are exquisite in their attentiveness to detail and full of an engaging, melancholy wisdom.”

Professor James Elkins, editor of the Legal Studies Forum, has been a fan of Komie, and the essay I wrote about Komie’s work appeared in the LSF. Professor Elkins has published a number of the stories in the LSF, and made some of them available online, here. If you want to read just one, you might try Solo.

Speaking about Professor Elkins leads me to my second topic, poetry by lawyers. If you like poetry, you should be aware of Professor Elkins’ fantastically thorough website cataloging poetry by lawyers, Strangers to Us All. The world of lawyer poetry is so much more than just Wallace Stevens and Archibald Cox–which (in my view at least) is really saying something! In addition to maintaining that website, Professor Elkins has published a lot of poetry in the Legal Studies Forum over the past five years or so. If you scroll to the bottom of the “Strangers to Us All” page, you can see descriptions of the LSF issues that anthologize poetry, as well as links to some of the poetry from those volumes, made available online.

Occasionally I run across poems by lawyers elsewhere. For instance, a couple of years ago one of my sisters gave me a volume of the Grove Review for my birthday, and it contained this lovely poem by lawyer David Filer, titled “Sometimes at Sundown.”

 

The question of the month asks for a favorite movie or a novel about law practice. Claiming the right established by Professor Murray to tweak the question, I want to mention a movie from the 1960’s and a biography published in 2008.

The movie is A Man for All Seasons. It is based on the play by Robert Bolt. The movie won several academy awards, including best picture. It focuses on a critical point in the life of Sir Thomas More.

The book is Crossing Hitler, by Benjamin Carter Hett. It is published by Oxford University Press. The book’s subject is Hans Litten. Less well known than Thomas More, Litten practiced law in Germany during the last years of the Weimer Republic. 

Thomas More was a pillar of the 16^th Century English society in which he lived. Hans Litten was an anti-establishment figure in pre-World War II Germany. Both are complex men, and both risked becoming heroes at least in part by being lawyers in societies undergoing transformational change.

More’s England is in the throes of theological and social upheaval influenced by a technological revolution brought about by the printing press. More must decide whether to support a king and government who in the name of reform seek to overthrow the old order, and who suppress or ignore rights grounded in the common law or the Magna Carta. More’s decision costs him his standing in society, his property, and eventually his life.

Litton’s Germany is attempting to create a democracy amid the ruins of a society prostrated by war and a punitive peace. Litten uses Germany’s legal procedures to expose what he believes are the excesses of the Weimer government, and the fallacy of the Nazi party’s attempt to portray itself as a peaceful, democratic party. He subpoenaes and cross-examines Adolf Hitler concerning the Nazi Party’s activities at a critical point in the party’s rise to power in Germany. This and other actions cost Litten his practice, his freedom, and eventually his life.

Recent technological and communications revolutions are reshaping our institutions. Today’s lawyers practice law in the midst of this transformation.  The stories of Thomas More and Hans Litten show us that we are not the first lawyers to practice law in such times. Whether we want to or not, lawyers have a role to play in the reshaping of institutions during times of change. In extreme cases, that role may require that lawyers risk becoming heroes.

Vole claims his defense is based on the fact that his wife, Christine (Marlene Dietrich), will testify that he arrived home the evening of the murder long before it occurred.  Robarts, of course, counsels Vole that the testimony of a wife in such a situation will be suspect.  Robarts’ first meeting with Christine leaves him concerned with her demeanor and sincerity.

The trial of the case in the Old Bailey, with all of its pomp and circumstance, is the highlight of the film.  The prosecution first presents its circumstantial case and the interchanges between Robarts and the prosecuting counsel are noteworthy.  In one instance he objections to a line of the prosecution’s evidence by stating that if his learned colleague is going to both ask and answer the same question, the presence of the witness “is superfluous.”

To the shock of Robarts and the viewing audience, the prosecution’s last witness is Christine Vole.  Robarts immediately objects, but Christine then testifies that her marriage to Vole was a sham, since she was already married when she met Vole and her first husband is still alive.  Her testimony against Vole is damning, including her claim that he arrived home on the night of the murder with blood on his clothing and told her that he had killed Mrs. French.  Robarts’ cross examination centers on having Christine admit that she told a number of lies before appearing in court that day and concludes with his statement that he is surprised “the testament did not leap from your hands” when she took the oath.

The movie’s conclusion is riveting.  Robarts is contacted by a woman (Christine in disguise) who, in exchange for a small sum of money, provides him with letters written by Christine to her “lover” Max.  They point to a compelling motive for her to lie under oath.  He has her called to the stand again and confronts her with the letters.  Her only response is: “Damn you!  Damn you!  Damn you!”  Vole is acquitted and following the ensuing pandemonium Robarts is left in the courtroom with Christine.  She tells him that her letters were a fraud.  There was no Max.  Her husband told her he committed the murder and she believed that her being discredited as a witness for the prosecution was the only thing that could save Vole from conviction.  Vole reappears and willingly, due to double jeopardy protection, confirms what his wife said.  An attractive young woman then appears and she and Vole embrace.  He admits that the two of them are going away together.  Christine then grabs a knife from the counsel table and kills him.  As Christine is led away by the authorities, Robarts makes it clear that his next effort will be her defense because she did not murder Vole, she “executed him.”

A Lesson Before Dying taught me that lawyers have to be advocates for their clients’ humanity.  A Lesson Before Dying recounts the trial of a young black man named Jefferson, found guilty of two murders.  In his closing summary, Jefferson’s lawyer compares Jefferson to a “thing,” concluding, with this sentence, “[w]hat justice would there be to take this life?  Justice, gentlemen?  I would just as a soon put a hog in the electric chair as this.”  It cannot be said that the lawyer does a “bad” job here since in a deeply segregated South, this tactical argument may have been the only way to preserve his client’s life.  Of course, such advocacy denies all humanity to Jefferson (which is Gaines’ concern as a novelist for the rest of the book).  A Lesson Before Dying offered me, then, a rich account of a debate often heard in Professional Ethics: do we owe our clients more than the “best” advocacy?  Do we have additional responsibility to advocate in a humane way?   One of the great pleasures of working at Marquette, from my perspective, is seeing the work of Janine Geske and Andrea Schneider, who through their respective programs, attempt to answer these questions.

Nelson Mandela’s autobiography, A Long Walk to Freedom, outlines the way in which lawyers and law school impacted Mandela’s development as a social activist.   Mandela’s relationship to the law was a complex one: laws maintained the boundaries of social classifications within an apartheid system, while at the same time provided a means for provoking changes in that system.  Mandela’s autobiography offers a window into a perspective of a whole set of lawyer-activists, such as Thurgood Marshall, Mahatma Gandhi, Charles Hamilton Houston, and Constance Baker Motley, who understood the law’s possibilities even when its application was unjust.  Such a vision of the law is a humane one, given its optimistic view of institutions’ capacity for change.

The Wire, with its perspective on the continual failures of legal institutions (the police, the courts, and the politicians) to address the drug trade, tempers the preceding optimism with a necessary dose of skepticism.  Well-meaning attempts to change the social dynamics of the drug trade fail again and again in The Wire.  The only saving grace in The Wire is the great humanity of individuals in the system.  Although he is depicted as a sociopath throughout The Wire,  every time I hear Marlo Stansfield’s “My Name is My Name” speech, I recall his humanity (although, unlike Jefferson’s humanity, an ugly one).  

One more thing: I have found that these works are in a continual dialogue with each other.  Read them together and you are subject to this rich discussion of the ways in which change can be accomplished within the legal system, the ways in which change is thwarted within the legal system, and the way each of us in our particular humanity can be engaged by the legal system.

Both actors deliver deeply engaging performances, as do several other top-flight character actors in supporting roles.  (James Gandolfini is especially good as a blue-collar employee of one of the defendants who must decide whether or not to cooperate with the plaintiffs’ lawyer; he doesn’t have many lines, but he exudes this barely subdued rage, looking as if he would like nothing more than to punch somebody out, if only he could decide at whom he should really be angry.) 

But, in addition to great acting and a compelling story, there are lots of other reasons this movie really works for me. 

For one thing, environmental litigation is what I myself was doing as a lawyer in 1997 (when the movie came out), and who can resist a glamorized, Hollywood version of one’s own life?  (Perhaps this also helps to account for the enduring fascination with The Paper Chase among law students and law professors.)  Yet, though glamorized in some respects, the depiction of complex environmental litigation in A Civil Action is accurate enough that I consistently found it to be a good way to begin a discussion with students about important problems in the American civil litigation system (e.g., lawyer-client conflicts of interest, plaintiff-defendant resource imbalances, and excessive cost). 

Ultimately, though, what I like most about the movie is its dramatization of the profound gap between what the lawyers and court system are willing and able to provide and what the victims of great human tragedy most desperately want.  At first, we see the Woburn victims — families who lost children to cancer — only through Travolta’s eyes.  The negative stereotype is that plaintiffs’ lawyers see victims only as a meal ticket.  For the Travolta character, though, I think he sees his clients less from the standpoint of a financial payoff, and more as a way to get the ego-gratification that comes from playing David to a corporate Goliath. 

In any event, the plaintiffs’ lawyer seems to have no empathy for the terrible grief of his clients; indeed, he expressly disclaims any such emotional response by a lawyer as counterproductive to the clients’ legal interests — which he equates with maximizing financial gain.  Gradually, we, the audience, come to see that the clients are less interested in money than in an explanation of why they lost their loved ones, an apology for wrongdoing, and generally having their basic human digintity recognized by the big corporate and legal actors in the case.  The Travolta character finally seems to get some sense of this by the end of the movie — although there is enough emotional subtlety in the production that we do not get an overly obvious epiphany.  Still, I think the movie works as a healthy reminder for lawyers and law students of the human needs for healing and respectful treatment that lie behind much litigation, and that cannot be met through dollars and cents alone.

Many thanks to Matt, Tom, and Daniel for their thought-provoking posts in December!

The new Question of the Month is “What is your favorite movie or novel about legal practice?”

Best wishes to all for a happy and healthy 2009!

What’s new in the legal research classroom?   As was mentioned in previous posts, there is a new database, Fastcase, available to all Wisconsin bar members.   In the Advanced Legal Research classrooms this past semester students were introduced to Fastcase.  Now that it is available to all members of the Wisconsin bar, we plan to expand training on this cost-effective legal research tool.  The Fastcase database has already been reviewed by Leslie Behroozi and Elana Olson in a joint post.   I’d like to focus my comments on the Interactive Timeline feature of Fastcase.  This new feature will prove useful for spotting trends in the law, not only to practicing lawyers, but also to academics, including those interested in writing papers for publication.   

Below is an example of the Interactive Timeline for a search for “open records” limited to Wisconsin cases.   Each case is represented by a bubble.  The size of the bubble indicates how often other cases in the Fastcase database have cited to that particular case.  The x-axis represents time and the y-axis represents relevancy (you have the option to select relevancy or court level).  This visual format allows the researcher to process more information more rapidly than would be possible by using the traditional list format.  For instance, in the visual format, the researcher is able to “view” all 233 relevant cases on one page, whereas in the traditional list format, the researcher would have to either click “next” page or scroll down. 

More importantly, it allows the researcher to spot trends in the law.  For instance, below, we see an increasing number of cases returned on a search for “open records” since 1979.  Is this due to an increased amount of information available to requesters?  A change in language in the Wisconsin statute?  A move toward transparency and access to public information?   Taking note of any trends we see while researching may provide fodder for law review articles or other scholarly publications.  For the practitioner, it allows a 30,000-foot view of the case law on a particular topic (at least as demonstrated by the Fastcase database algorithm). 

This new tool, the Interactive Timeline, is worth your while to explore.   It is probable that we’ll see increased use of visual display of query results in legal research.

That I am a Professor of Law at Marquette University with particular expertise in legal ethics is due in large part to Dean Robert F. Boden, who caused my application for admission to be reconsidered, who hired me during my third year of law school, and who assigned me as a junior faculty member to teach Professional Responsibility even though he gave me my lowest grade in law school when I took that course from him. 

Marquette had some great law teachers in my era as a student (1972-1975). 

Ray Aiken’s barely bridled passion for the law — for its intricacy and its grandeur — spoke powerfully of law (and law teaching) as a vocation, a true calling.  One of the legends about Ray was that, as he was leaning back in his chair while lecturing some poor soul in his office about a finer point of civil procedure, Ray’s chair fell backward and he found himself on his back on the floor.  Ray did not stop; he did not acknowledge his predicament; he finished his point.

Jim Ghiardi was masterful at inspiring a great many of his students to perform at their highest level.  With first-year students in torts — 160 students at a time — the atmosphere could be thick with dread, for unpreparedness was intolerable and muddled thinking could be humiliating.  With third-year students in advanced torts or casualty insurance, the atmosphere could not have been more different, as Jim attracted a cohort of 30 serious students who dared to think and act and look like skilled lawyers, as was the common theme in Jim’s upper-level courses.  There was no dread in advanced torts, but there was plenty of excellence.

Ken Luce, Leo Leary, Chuck Clausen (whose excellence is elsewhere noted on this blog), Ray Klitzke, and Pat Hetrick were all outstanding law teachers in their own right.  

But Bob Boden stood out, not only because of his authority as dean, but because of his surpassing vision of the legal profession and what excellence as a lawyer required. As a leader in the legal community and as a scholar, Bob likened the profession to a public utility, and he always insisted that public service was its core mission. As a lawyer and law teacher, Bob cared deeply about the facts and details of the law and legal problems, but philosophy also came naturally to him, and he instinctively sought the wider understanding of the issues he encountered.

His courses were very much his own creations, largely using his own materials, and including “practice tips” for his bankruptcy students and “ethical dilemmas” for his professional responsibility students.  But much of his teaching happened in his office, counseling and helping students in need, students in trouble, and students who sought the dean’s special resources to achieve some goal or other. And true to form, Bob usually delivered both a practical result and a lesson for life.

Consider this assessment by Chuck Clausen, another of Bob’s students and colleagues, in “Uncle Bob”: Introductory Remarks to the Inaugural Robert F. Boden Lecture, 81 Marq. L. Rev. 5 (1997):

Bob Boden was a born teacher. Regardless of the role he was in–professor, dean, writer, law reformer, advocate, counselor–Bob was a teacher.

So, I devote these few minutes to speaking about what Bob Boden taught his students and his faculty not about Law, but about Life–what he taught us, not by lecture, article, or book, but by living example.

Bob Boden taught us compassion and generosity and service of others, and he taught gently and by example. He taught us pride in our profession, and he taught gently and by example. He taught us, gently and by example, about humility and the value of a sense of humor. And he taught us, always gently and always by example, that these virtues can be united and can co-exist in a person with power and prestige and high status, even in a lawyer, even in a law professor, even in a university dean.

Dean Boden had three nicknames. All of them were affectionate, two of them were humorous and one was the most revealing. He was called “Dean Bodeen,” a simple rhyming play on his name and title. He was called “Dean the Dream,” after the Marquette basketball star Dean Meminger. And he was called “Uncle Bob.” Uncle Bob. What a wonderful nickname. It suggested family, affection, approachability, and a caring relationship. It was a perfect nickname for Bob Boden.

When law students had serious troubles with grades, or with finances, or with other personal problems, they usually ended up in the Dean’s office — not always seeking, but always receiving, help. Sometimes the help was money, sometimes from his own pocket. Sometimes the help was becoming one of the legion of Dean Boden’s last-semester-of-law-school research assistants who needed a couple of credits with a high grade in order to graduate with their classmates. Always the help included patient listening, caring, and compassionate counseling. He was the same way with faculty members, who were experiencing hard times: death of loved ones, serious illnesses, divorce, all the various kinds of heartaches that Life brings to people over many years. We will never know how many people over his seventeen years as Dean sat in his office needing help of some kind — and getting it. He would not talk about it; he was a great respecter of confidences. We know about it from the people he helped. I hear such stories to this day, talking to alumni. Uncle Bob.

Bob Boden had many loves: Marquette, trains, the law, Wisconsin cities and towns, history, teaching, cigarettes and spirits, his Irish heritage, and especially his wife Pat. He was a large man in ever so many ways, and the mark he left on Marquette Law School is very large indeed. As is, to be sure, the mark he left on me and many other Marquette lawyers.