Showing posts with label Academic and Professional Tests. Show all posts
Showing posts with label Academic and Professional Tests. Show all posts

Wednesday, August 30, 2023

UW Class Law School Class of 2026 . . . dressed up.

 Incoming University of Wyoming College of Law class (Class of 2026).


Wow, look at all those suits and ties.

These students are a nice looking bunch.  A colleague of mine, who works in another firm, has a kid in it.  

I didn't meet my law school classmates until the first day of law school.  This group was apparently brought in early, and told to dress up.  The first time I wore a tie in law school was actually after it, at my bar exam interview, back when Wyoming had a real bar exam rather than the Universal Locally Un-iformed Bar Exam.

I'm impressed. This is what a law school entering class should look like, and I hope it bodes well for the future.

Friday, September 3, 2021

Some recent legal observations

LSAT Baloney Sliced Thick


I don't pay much attention to Quora, and I don't know why anyone else does either.  A lot of the questions on it are stupid, quite frankly, and the answers can be as well.

In the latter category was a recent question from some poor soul along the lines of whether only studying for a couple of years for the Law School Admissions Test was too little. Some law prof came in and said yes, and not only that, but that you had to have been studying for it basically since grade school.

Bullshit.

I didn't study for it at all and scored high on it.

I'm not the only one.  I heard of one instance in which a fellow took it (and didn't go to law school after being admitted) even though he didn't study and spent the prior night partying rather heavily.

Frankly, the test is supposed to test your ability to think logically.  If you don't have that, maybe you can train your mind to it, but studying for the test probably isn't the best way to do that.

Anyhow, study away.  Probably you should.  Most people seem to.  But you don't need to be doing it during recess at Public School 97.  

Of note, one of the Ivy League schools recently dropped the LSAT as an admissions requirement, and I don't blame them. When a test like this, which tests your mental process, is studied for, people are studying to defeat the test.  And they're probably accomplishing that to a large degree.  Hence, it no longer has any real meaning.

Out of Jurisdiction


I recently tried a case out of state.  I've done that once before, but that was in Federal court, not state court, and it was a trying experience in more ways than one. I've had other out of jurisdiction state court cases, but this is the first one that's gone all the way to trial.

One revelation was that the positions associated with the court are different, which surprises me.  Here, judges used to have a Judicial Law Clerk, who was a recent law school grad who served as a lawyer for the bench, and during trial a representative of the Clerk of the District Court always sits in the trial.  In quite a few courts the Judicial Law Clerk is now the Permanent Law Clerk, i.e. a lawyer for whom that is a career option.  A bailiff sits in the trial as well.

Where I was, however there was a "Clerk" during the trial.  We also had to hire our own court reporter.  There was no bailiff, the clerk sort of acted in that role.  On the last day, a representative of the Clerk of Court's office was there for the verdict.

I was sufficiently confused about it later that I looked the "Clerk" up, and it's clear that the clerk is a Judicial Law Clerk.  I don't know if it's a permanent position in that court or not.

It might be. The reason I note that is that in doing that I was surprised that the young lawyer had moved around in the lawyer's infant career a lot.  That lawyer has only been licensed for about two years (a little less) but had already clerked somewhere else, had been an associate with a large multi state law firm for a  year, and then had moved on to the court. 

That's remarkably different from when I was first a lawyer.  Lawyers who went on to be clerk's did it as a career move knowing that they'd occupy the position for only a year.  It was normally their very first job out of law school.  Very rarely did a practicing lawyer leave practice to become a clerk, although I do know of two who did that to become Federal clerks for a year.  There were no full time career clerks, which now are common.  Federal clerks are pretty much all career clerks, I think.  Those who entered private practice didn't leave it after just one year, and if they did leave their first jobs rapidly, it was because they went to work as public defenders and had planned on other employment to start with.

Differences in views towards employment and employers have been noted by older lawyers for quite a while, but in some ways this is something that's always the case.  When I was young, which seems like just yesterday but which is actually quite a while ago now, it was extremely common for the Baby Boomers to comment on how everyone below them in age had no work ethic and expected to move up the ladder as an entitlement.  I always thought this the height of irony coming form a generation which actually had an enormous sense of entitlement and which was actually given a massive amount of everything by their parents, whom had endured the Great Depression and World War Two and  who accordingly didn't really know, to a significant degree, what real life was actually like.  That generation, which Tom Brokaw mislabeled "the Greatest Generation" in his hagiography devoted to them, knew crisis and suffering and wanted their children to be spared that.  As a result, we got the generation that Donald Trump, Joe Biden, Nancy Pelosi, etc., are in that won't let go of anything.  They actually were allowed to skip entire rungs on the ladder, and then later on kept people from climbing up it, imaging that they'd pulled themselves up by their own bootstraps when, to a significant degree, their doting parents were there tying their shoe laces the entire time.

Clearly, I'm painting with a broad brush, and unfairly, and this doesn't apply to every member of the generation.

Anyhow, when the Millennials and the older Gen Y folks started to enter work, including the legal field, there really was something different about them.  The Gap Generation folks, like me, who fit in between Gen X and the Boomers pretty much felt we had to find a job and plug on.  It was our only option in life, really.  Gen Xers and older Gen Yers, like what is described about the generation that fought World War One (the "Lost Generation"). had much less job loyalty and pretty much took the view that they had to fend for themselves.  Boomers repeatedly accused them of being unrealistic and lazy, but they were neither. They were highly realistic and far from lazy, they just didn't have dog like loyalty to an employer master.  Indeed, they didn't really expect anything, including employment, to last.

Now, however, we're seeing the younger Gen Y and older Gen Z people in the workplace and their views truly are different, at least it seems to me.  Hardly any prior generation would have skipped through that many employers right off the bat, in the example of the Clerk, but I don't think that's uncommon.

I'm not sure what that means, but again, I don't think they're lazy at all.  I think their view towards work is much different, and they don't expect anything to really last, employment wise.  I don't know what their views are, as a whole, on much else.

While I find that rapid employment change a little distressing, as a now older lawyer who hopes that people will stick around, I think I get it a bit, and that their views may be much more realistic than the Boomers really.  Indeed, I think we're seeing a retrograde attachment to work that takes us back to prior generations over a century ago.  If the Gen Xers were like the Lost Generation, the current 20-year-olds in the law and everything else seem more like those workers from the 19th Century, whom you'll often find went through quite a few jobs in a course of a lifetime, or if they were professionals went through quite a few positions.

I hope some other trends reflect that as well. For one thing, I'm sick of the uber bloated massive law firms that have become a feature of American law.  The fact that younger lawyers bolt pretty readily should operate against that, as those firms depend upon a stable supply of sheep to be corralled to mow the grass of the company pasture.  If the sheep are wild, and take off, that sort of corralling can't occur.

Money, Time and Life


Related to this, I've recently had the odd experience of watching a person on the cusp of the Gap Generation, but from a different region of the country, try to reconcile his mental image of work with that of the reality of others views.  Said person isn't really accomplishing it.

This comes up in the context of said person speaking to a younger Gen Xer about that person's work, which is with a legal agency.  The older Xer treated the younger one's work as surely a stepping stone on to other work for "more money".  The younger person didn't see it that way at all.

Indeed, the younger person liked their job, which had relatively low stress, okay wages and really good hours.  He couldn't see whereas he was suffering, as the older one thought other work, in the private sphere, offered a "chance to make more money".

What was clear in the conversation is that  the older of the two viewed making more money as the be all and end all of any job.  That was the whole point, and the only point, of employment. . a chance to make more money. The younger one saw his job as a job and was content with that.

I'm seeing a lot of that with younger workers, particularly the younger Gen Xers and the Gen Yers.  Again, they're like the Lost Generation that way. They want to have a job, have a family of some sort (that hasn't completely returned to the Lost Generation view. . . yet), and to be able to enjoy life, often in a small way.  These younger folks feel that the ability to go fishing after work or watch a ball game is as important as the Dollar.

And they're right.

The March of Technology


I lasted tried a case in February, which was the first post pandemic trial I've done.  In that Wyoming bench trial, neither side used anything high-tech. The case just wasn't that suited for it, sort of, although there were photographic and text exhibits.

In this recent trial, however, all the exhibits were shown to the witnesses electronically and they were all published (shown) to the jury in the same fashion.  A technician attended the entire trial in order that this could be seamlessly accomplished.

The technician was fantastic and did a super job with pointing out the text and going through the electronic exhibits. While I've done a lot of trials, this was the first one I've ever done that was 100% high-tech in this fashion.

I'll admit that I've been skeptical, or perhaps just reluctant, to acknowledge the effectiveness of this, but it's now clearly here and that's the standard.

Like automatic transmissions being in everything, I guess I can accept reality, however, without liking it.  I don't like it.

But that's where we now are.

Going on and on

One thing that I really liked that the other jurisdiction did was to limit opening statements and to constrict voir dire (questioning of the jury).

Various Wyoming courts take different approaches to this.  Most ask the lawyers "how much time do you need for openings?" and then debate how much time will really be given.  I just had a proceeding in which that question was asked, and the plaintiff's lawyer said he needed 1.5 hours.

In the other jurisdiction the court simply informed us that we had 20 minutes.  No debate, you have 20 minutes.  And this was in a highly technical case.

I'm really good at public speaking, and frankly I was relieved.  Anything over 20 minutes is an exercise in hubris and boring the jury.  It might have been in the case at the time of the Gettysburg Address that people were ready for an hour-long speech, but that was in a day in which people had spent half the day getting there, were going back tomorrow, had no phones to check, and weren't getting back to their work right away, and weren't used to 30 minute television shows.  No modern audience is going to listen to an hour-long speech from anyone, let alone a lawyer.  Even if you have super wonderful graphics in which the entire accident is reenacted by Kate Upton and Billie Eilish with background music from Iris Dement are they going to do that.  Just forget it.

None of which keeps lawyers from asking for all kinds of time.  We're stuck in the past that way.

Suiting up

As a Wyoming lawyer, but a lawyer, I've watched the slow decline in clothing standards while participating in it.

At my first day of work in 1990 I reported to work wearing a double-breasted Brooks Brothers suit.  The first partner who came in was wearing wool khaki trousers and a blue blazer, and he was dressed down.  He told me that I didn't have to wear a suit every day.

For years and years, however, I normally wore a tie and clothing appropriate for a tie.  Then COVID 19 hit.

For much of the prior spike of the disease (we're in a spike now, of the unvaccinated, but of course the entire state disregarding that) I kept coming in the office.  I was often the only one there when we were at the point where the staff didn't have to come in.  I pretty much quit dressing in office dress at the time as there wasn't much of a reason to do it.  Nobody was coming in, I was there by myself, what the heck.

I've not made it back to normal, and not everyone else has either.

And of course normal in 2019 was not the same thing it was in 1999, or 2009.  We'd already slid down the dressing scale in the back of the office, where I am.  I never used to wear blue jeans in the office, but by 2019 I already was a fair amount.  Starting with COVID 19, I am all the time.

One of the things about that is that in 2019 I already had a selection of older dress clothes that were wearing out I hadn't replaced.  Probably the inevitability of their demise would have caused me to replace them on in to 2020.  But I didn't have to.  Additionally, the long gap in time meant that I pretty much didn't do anything about the fact I'm down to two suits now.

Two suits isn't much if you are a trial lawyer.

Well, running up to the trial I was going to go down to Denver and get new ones.  But I ran out of time.  I still haven't done it.

I need to.

I'll confess that part of my reluctance to get new suits is that I'm 58 years old.  I don't wear suits daily at work, and I'm not one of those guys who is going to claim "I'm going to work until I'm 80".  Any new suit I get now will still be in fighting shape when I'm 68, and that's reasonably enough, but to my cheap way of thinking, emphasized by the fact that I have two kids in college, its something that is both easy for me to put off, and in the back of my mind I tend to think "maybe I won't really need those if . . . "

Well, I probably better remedy that.

Tuesday, June 15, 2021

Wednesday June 15, 1930. Bessie Coleman receives a pilots license from the Fédération Aéronautique Internationale.

The Aerodrome: June 15, 1930. Bessie Coleman receives a pilots l...:   

June 15, 1930. Bessie Coleman receives a pilots license from the Fédération Aéronautique Internationale

 


On this day in 1921, Bessie Coleman received a pilots license from the Fédération Aéronautique Internationale, making her the first black person to be a "licensed" pilot.  As her grandparents were Cherokee, she was also the first licensed Native American pilot.

The event is a real milestone, but it's somewhat deceiving.  The US didn't require pilots licenses at the time and the global requirement was far from universal.  Pilots licenses would be introduced in the US in 1927.  This is significant here as Coleman's international pilots license was a real license, but one that was not recognized everywhere and, moreover, she was not the first black or female black pilots as is sometimes suggested.

She was a pioneering aviator however and earned her living as a barnstormer after taking up flying.  In that career she was also an advocate for African Americans.  She tragically died in 1930 at an airshow when her aircraft had catastrophic failure.


Monday, April 15, 2019

Monday at the Bar: Kim Kardashian to become a lawyer?


Kim Kardashian, known principally for her bust and rear end, has declared that she's reading the law and intends to take the bar exam in her state in 2022.

She's drawing skepticism on that, as in this headline:
Kim Kardashian's Bid to Become a Lawyer Faces Long Odds
The reality star has said she plans to take the bar exam in 2022 without attending law school, but few who go that route pass the test.
Well, skeptics aside, the more power to her.

Reading the law is basically self study for the bar exam.  Bar exams have been around for a lot longer than most law schools, and indeed early law schools were of a different nature than today's.  Originally it was widely assumed that nearly all lawyers had read the law.  Law schools started as largely private affairs where a lawyer offered his services to help those reading the law.  They then evolved into what we have today.  Over time, the ABA stepped into regulate them privately and, as they became common, the ABA pushed for state bars to require law school attendance in order to take the bar, arguing that this showed that a student was more prepared to become a lawyer.  Over time, they pushed for state bars to require ABA certification for such law schools.

But not all states have gone along, and some will still allow an applicant to sit for the exam with that applicant not having attended law school at all.  According to Wikipedia that number is down to California, Vermont, Virginia and Washington with, it's claimed, Wyoming, Maine and New York allowing it after the applicant has studied in a law office and have spent some time in law school. At least as to Wyoming, that's in error as Wyoming applicants can still sit by motion, which is effectively the same thing, but it requires permission of the state supreme court to take the exam.  Indeed, I knew one lawyer who had been a law school graduated by who was admitted by motion without passing the exam, which he'd failed a couple of times.

Okay, having said all of that, what's "reading the law".

Self study. That's what it is.

Or self study under the tutelage of a lawyer you are working for, which in the older days meant that you were apprenticed to that lawyer.

Plenty of famous lawyers became just that by reading the law.  

John Adams read the law.  


Abraham Lincoln read the law.


Locally, long serving and well known legal figure, the late Federal Judge Ewing T. Kerr read the law, and the local Federal Courthouse is named after him.


Now, this isn't to suggest this would be easy.  But at the same time it is to suggest that this may not be as hard for Ms. Kardashian than the skeptics may suppose.

First of all, while she's made a career so far by partially prostituting her image, in the form of selling photographs to fuel illicit dreams of juvenile males, there's no real reason to suppose that she's dumb.  Indeed somebody in her family pick up early on the fact that the Kardashian girls, with their exotic half Armenian features, were very good looking and could make money in their youths based on that.  The way it was done was not admirable at all, but it was cunning.

And signs of her further intelligence may be revealed by this proposed change in careers.  Her assets have a shelf life, and they will expire.

After all, you don't want to advance into middle age trying to look youthful and come out scary, a la Lisa Vanderpump or Cher.

And maybe you don't want to go to your grave remembered for your butt and chest.  

And recognizing that shows some real intelligence.  Not all who rose to fame in that manner survived that frightening realization.  Saying she wants to take the bar exam is a lot smarter than doing what Marilyn Monroe did, which was to face the whole thing badly.

And skeptics aside, her father was a lawyer.  Often the family members of lawyers get legal educations whether they want them or not.  They're reading the law, more or less, all the time.  Sit around the dinner table of most families in which their is a lawyer and you'll get some some sort of legal education, or at least an education in debating, whether you like it or not.  And by all accounts, her father was a good lawyer at that.

And, quite frankly, it doesn't take near the smarts to be a lawyer that the general public believes and that lawyers like to imagine.  I'd guess that the vast majority of lawyers measure no more than average in that department, including some hugely financially successful ones.

Indeed, that's been the dirty little secret of the modern practice of law for a long time.  Lawyers like to rely on their reputation as a "learned profession" to pose as a class of great intellects, and certainly there are lots of lawyers who are just that.  But there are a lot more who are not.  The entire ABA supported move towards requiring law schools in the first place was to combat the fact that a lot of lawyers just weren't all that professional, and in the 19th Century law was a very common American occupation filled by those who didn't want to be farmers but who had no other skills to fall back on.  Most weren't college graduates and indeed there were few colleges for anyone to attend. The entire American image of the crooked lawyer came up in that time, and indeed lawyers moving from town to town to evade their reputations and take advantage of frontier opportunities was pretty common.  

Bar exams meant to address that, but bar standards have been dropping like a rock for some time.  The Uniform Bar Exam has accelerated that.  I don't know if the UBE is the one that Kim Kardashian would be taking, but the fact that it is a uniform exam sort of speaks for itself in some ways, and at least by observation, the amount of knowledge that's required to pass it is considerably lower than the old NBE and local exam system that used to prevail.  You'd think the ABA would oppose such an evolution, but on the contrary they seem solidly behind it.

So I hold out a lot more hope for her to pass the exam than others.

Indeed, I hope she passes it and frankly I hope she redeems her reputation.  

Armenians in the United States and around the world have a really well deserved reputation.  The Kardashian's are an embarrassment to it.  The culture is a really old one, and the country was the first Christian nation in the world.  The Armenian diaspora in the United States has untold numbers of members who have contributed greatly to American society.  The Kardashian girls cut against that hard working conservative set of values by rising to fame through what amounts to, at best, their appearance.  

One of the things that holds women back in real terms is that fame based on selling your appearance, let alone appearing on the cover of magazines naked, or in sex tapes, reinforces a pagan view of women. That's a lot to make up for.  I hope she does.

Indeed, I hope she does and that she actually practices, and in some future year that when people speak of Kim Kardashian, it's in that context, with few remembering when she was just a barely clad, or not clad at all, public figure.

John Wesley Hardin.  If Hardin could become a lawyer, why couldn't Kim Kardashian?

Monday, December 31, 2018

One Lost Life and What That Tells Us About the Practice of Law in the early 21st Century.

I don't often lift an entire article, but I'm going to do so here as this one is so remarkable.  My commentary comes mostly at the end.

I've done the unusual thing of footnoting some things in this and commented on them, although I think that this stands to be rude an offensive, I don't mean for it to be.
Joanna Litt’s husband, Gabe MacConaill, a 42-year-old partner at Sidley Austin, committed suicide in the parking garage of the firm’s downtown Los Angeles office last month.  




There's a lot to unpack in this very interesting post and I've put it up as it is interesting in part, both for what it assumes and what it doesn’t.  Keep in mind, additionally, that I don't know these folks and therefore anything I may be saying in connection with this story may not actually apply to them.

Now, let me also note, I have a long draft post on the topic of suicide in our modern era that’s been stewing for some time in a nearly completed, but still incomplete, form.  So this post will be rapidly supplemented by that one, but the other one came first.

Anyhow, the suicide rate for lawyers is high (but not as high as that for dentists, at least as of the last time I looked).  As  this is usually looked at specifically by the legal profession, there’s a common concept in the legal profession that this means there’s something specific to the practice of law about this, and there is, but I suspect it’s part of a larger societal problem.

Getting to this item, however, the first thing I’d note that I think is in error is blaming this on “Big Law”.  I'm not sure there really is a "Big Law" in the way that "Big Law" believes that there is, although there is something that is indeed called Big Law.

The Big Law organizations, i.e., outfits that track what’s going on in Big Law assumes that there is a Big Law.  There is, but frankly Big Law bleeds into regular law and varies little from it in most ways.  The biggest single distinction about Big Law form regular law is that Big Law is mighty impressed with itself and thinks that its unique in every fashion, when the only thing really unique about it is that it’s big and reflects the common ills associated with large entities entities.  Big Law is getting bigger and hurting the overall legal profession in my view, but many of the ills attributed to it are widespread indeed.

Anyhow, when the ills associated with the Big Law practice are addressed, in the contexts of what it is like to practice in front of Big Law, most lawyers would just recognize that stuff as the law.  Big Law doesn’t, because its impressed with itself.  People who work for Big Law don't realize that as they are self isolated as a rule.  Big Law tends not to impress people who aren't in Big Law unless they are just impressed by Big, and therefore those in it don't realize that those outside of it face much the same daily factors that they do, and frankly that lawyers outside of Big Law are every bit as good as those within it.

Which goes to this, if something about the profession killed this lawyer, it wasn’t Big Law, it was just the Law.

Or more accurately, perhaps, the way the law has become and the way it is continuing to develop.

Which goes to the next thing.

There’s lots of hand-wringing in the profession about conditions which cause its members to become depressed, drink, take drugs, chase skirts and in some cases, commit suicide. And nothing is being done about it.  Nothing that really matters, however.

Indeed, the profession is actually seeking to make things worse, at least in terms of its big organizations.  The conditions that cause the law to become unbearable for some are encouraged by the developments that organizations like the ABA are taking and which state bar associations have been taking which serve principally, Big Law, intentionally or not.  That is, in spite of all of their declarations of sympathy and angst, the profession is actually working towards the consolidation of bars in a fashion which serves bigness.  And where Ms. Litt may well be correct, although not in the way that she may have intentionally meant, is that this consolidation makes the conditions she observed worse.

Now, each state, probably, has some state bar program for distressed lawyers.  But that treats the lawyer and not the cause.  I.e., these are basically emergency rooms that take in the badly wounded the same way that a big city ER does.  ERs in Chicago treat a lot of gunshot wounds.  That’s great, but it doesn’t do anything whatsoever to stop people from getting shot.

Put another way, my bar card just came for 2019 and attached to it was a sheet going out to every lawyer in the state with their new bar cards that says something like "Feeling stressed" and then makes reference to the bar's service for lawyers who are having a  hard time.  There's no real effort to find out why lawyers are having a hard time and if something should be done about that.  None.

And that’s what this topic is like in the law.

Something about the practice is getting after people.  What is it? 

Well, it has to be something in the conditions of practice and nothing is being done about that whatsoever.

The law has never been a perfect profession, if there ever was such a thing, but the conditions of practice have undeniably gotten worse over the past half century and the trends towards that are accelerating.  Prior to the revolution in communications most practice was highly local. As communications have gotten bigger and bigger, the law has reacted in a direction that’s the opposite of efficient and logical.  It’s concentrated and become more and more inhuman.  Lawyers used to work with and against those they know.  Now they do that less and less.  And as that’s become the case, and things have scaled towards the big, pressure has been put on lawyers in big firms to be, as one lawyer I know has put it, “rented mules”, with all the dignity accorded them that a rented mule will have.  In litigation a premium has been put on results at any cost, with the collateral effect that lawyers in larger venues are  highly aggressive.

The problem with being that way is that its difficult to turn off.  A lawyers who has perfected the role of being the designated aggressive  person in a case probably tends to be that way everywhere else.  And to the people who work with him, particularly those who are just rented mules to start with, the conditions are worse  and worse.

And human behavior towards the aggressive is age old.  People come to hate people who act that way and resent them permanently.  Ultimately they'll resent the conditions that bring these people to them, whether that condition is the work, or the firms that act that way.

One legal blogger has made the extreme claim that being a lawyer in the trenches is worse, psychologically, than being a soldier in the trenches, as wars end and careers basically don't.  That is extreme, but there's something to it.  If a person's work has become unrelenting day in and day out combat, they'll begin to have problems with it.

The author here claims that she learned her husband had a "maladaptive personality".  I don't doubt that there's something to that, but there's been in the past few months an argument developed by a figure who spent most of their lives on antidepressants that in fact what is going on is that doctors are medicating modern life.  If he's correct (and I'm not in the profession, but I suspect more than a little that there's something to that), the "maladaption" may mean as little as "just not suited for".

That concept used to be more popular before modern society became so daft as to actually believe "you can do anything you want to". Some people are just not suitable for some things.  I recall in Basic Training meeting a soldier awaiting discharge. He was a nice kid, but the service had found him simply unsuited for military life, so it was letting him go.  There's no reason to believe that there aren't people who are unsuited for a life in the law.

If that's the case, however, that would have to be determined at some point early in their careers.  That's not going to happen.


Nothing is done by law schools, which are desperate to find students, to sort out those who will thrive in an environment of constant human contact form those who will not.  Many who are drawn to the law on introspective introverts with a flare for analysis.  Those people may say that they want to “help people” or “argue”, but what they really want to do is analyze and read.  Law schools don't bother with trying to discern anything about a person's talents to practice law.  If a person has passed the LSAT, even if they took a few times to do it, and they have the cash, they're in.

And certainly nothing is done by state bars either.  Indeed, less is done for admittance now than at any time in recent history.

As recently (granted it isn't that recent) as when I took the bar exam, you had to take a state exam combined with the national exam and be interviewed by the bar examiners themselves.  Now, most of this is a thing of the past.  The state exam is gone as is the interview.

Indeed, at that time you also needed a sponsor who was a practicing member of the bar.  You still need that, but basically you just take the national exam, the Uniform Bar Exam, and you're in.  This only shows you know how to take a test of that type and I'd wager that anyone who takes test well should be able to study on the UBE and take it, irrespective of whether or not they've gone to law school (which is of course a requirement) and irrespective of your actual qualifications to practice law.

Could something be done?  You bet.  But we're not going to do it.

First of all, the entire LSAT should simply go.  The LSAT was created to test your ability to think logically. That's great, but people study for it and take it more than once.  If it was to work, it would have to at least a one and done type of deal

But combined with that probably should be some sort of psychological test, and nobody is going to want that.  And maybe there should be references required to simply be admitted to any law school that are submitted to somebody other than a cash hungry law school.  And those references should probably have to include people who will vouch for you not becoming a jerk later on (which I'm not saying that this guy was) or collapsing under the stress.  I.e., if you are on of those bookish shy people who are attracted to the law because you are a polymath maybe somebody who is your friend might confidentially note that.  Or not.

And perhaps state bars ought to start acting like gatekeepers again by demonstrating that they know that there is a gate.  Relying on the UBE instead of doing state tests is a bad idea. The opposite would be a better approach. And with that, they could reinstate interviews.  If somebody seems too wired to get through the interview, maybe that says something

Beyond that, however, perhaps they could enforce the requirement that lawyers actually have an office in the state in which they practice, rather than simply a mail drop.  Or make that a requirement if they don't have one.  If a lawyer is going to practice in State X, he should probably be in State X at least 50% of the time (and yes, I have done out of state work).  What's that have to do with this, you ask?

Well, that operates towards making firms smaller and actually your work more local, and that matters.  I.e., that operates against Big Law and its bigness.  The smaller the law horizon is the more likely it is that somebody is going to catch you before you fall.

And taking that one step further, maybe it would be a good idea to take a page from the English and require lawyers to be admitted to a single practice area, rather than the fiction that all lawyers are admitted to do everything.  English lawyers have traditionally been barristers, who do courtroom work, or solicitors, who do not (in Quebec the latter are "notaries").  Making lawyers make that choice forces them very early on to make a choice on what they want to do, rather than simply making them scramble for a job anywhere and then end up where they shouldn't be.  Just because a lawyer has courtroom skills doesn't mean that he's able to psychologically carry that weight for the long haul, and chances are a lot of the lawyers who are in that spot know it before they ever fill out a job application.  Making them choose early on might keep a guy who is ill suited for the pressures of trial work opt for it.

And taking that one step further yet, the English traditionally did not allow barristers to form firms.  With practice being what it is in the United States, that couldn't be strictly applied here, but something like it probably could be.  Firms of barristers could be modified in some fashion to keep them small.  There's a lot of courtroom talent out there and this would be good for the practice and clients in general, but it would also operate to keep that class of lawyer from becoming grossly overburdened and also from being converted from courtroom lawyers into "trial warriors" or some such thing as their economics became more concentrated and local.

Finally, emphasis should be placed on the concept that if the law is a vocation, any good lawyer has a decent avocation.

No matter what state bars like to pretend, the way things are developing emphasizes creating a situation in which bright young polymaths are put in a situation where  they do nothing other than work.  Most young lawyers have varied interests.  Anyone who has been around older lawyers knows those who have had every single non law interest burned out of them.  The best lawyers I know and have known all had very strong interests in something else.  Some were pronounced outdoorsmen, some where agriculturalist, some were painters, some were writers, some were deeply religious and active in their faiths, and so on.  I think, frankly, that a person can't be a decent lawyer unless they have some other strong interest.  But the profession operates night and day to keep that from occurring.  Indeed, I recently had it suggested to me that being a rancher in addition to a lawyer was a disqualifying factor for being a judge as it "took too much time", which by extension suggests that all of a lawyer's time as a lawyer should be devoted to the law.  That's wrong.

Perhaps that should be a topic of inquiry by state bar committees for new applicants.  "What else do you do?", with some proof you do that.  If the answer is "I love the law so much I only study it", you aren't qualified to be a lawyer.

And that's because at the end of the day a meaningful life has some deeper connection to something.  A profession that things the profession itself gives that meaning has lost sight of that.  Lawyers shouldn't.

And individual lawyers will have to carry that ball. The profession isn't going to do anything about it.

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*My first comment.  Ms. Litt has that right, it was "our life". 

I'm back to the point that I made here recently on a post on abortion, but our lives aren't really our own.  We have a collective nature and the entire individualist concept that modern society, and Americans in general, espouse, is frankly shallow and wrong.  And this is particularly the case with married couples, whose lives, by law and by nature, belong to each other and their children. Two do truly join together as one flesh.

**I hear this a lot, but I think that what people do by choosing deliberately to eschew children is to close part of their lives entirely to something deeper.  I realize that this is a popular modern choice, but it gets back to that strong sense of individualism that runs so strong through modern life.  When Ms. Litt finds somebody else, and she will, I hope that this isn't part of her second calculation.

***And this is what my post is really about, and what the text I've put in is about.  

****Here's another modern comment I hear all the time.  "Marriage isn't easy".

An old clear thinking friend of mine who married earlier than I did once told me, after he'd been a married a few years, "marriage is easy".  And frankly, having been married now for over two decades, it is.

It is at least if you viewed it as a life time commitment and never considered that it had any out, and you didn't expect everything life to be perfect.  Life isn't perfect no matter what.  Marriage won't make it perfect.  

But marriage itself frankly isn't hard, at least in  my experience.  Based on my observation, people who live single lives live ones that are much harder.  Much.  And beyond that, people who insist on complicating their marriage with drama by never really being committed to it. . .well they make their lives difficult and their marriages difficult by extension.

But marriage itself?  If a person, like most people, was meant to live with another of the opposite sex. . it isn't hard.

*****Litt deserves a lot of praise for this offer.

Wednesday, September 5, 2018

Labor and the conglomeration of everything.

Grocer, 1944. This guy wouldn't be working for himself, in this occupation, anymore.

One show that does capture a little of the high school experience many of us had is “Freaks and Geeks,” to which I’ve devoted a few evenings lately. One character is a guidance counselor who’s a little over-invested in his students’ lives. He’s always around, questioning the kids’ decisions and reminding them that the choices they make in high school will echo down the hallways of the rest of their lives.
This is a pretty common theme, and one that today’s students are likely to hear as classes kick off this week in the state. Even Linus from “Peanuts” gets in on the action. He tells Charlie Brown: “I think that the purpose of going to school is to get good grades so then you can go on to high school, and the purpose is to study hard so you can get good grades so you can go to college, and the purpose of going to college is so you can get good grades so you can go on to graduate school, and the purpose of that is to work hard and get good grades so we can get a job and be successful so that we can get married and have kids, so we can send them to grammar school to get good grades, so they can go to high school to get good grades so they can go to college and work hard…”
Mandy Burton from her article in the Casper Star Tribune, quoting from the late Charles Schultz's cartoon, Peanuts.

Pretty observant article, but not true so much anymore.  Today, Schultz's characters would have to say:
“I think that the purpose of going to school is to get good grades so then you can go on to high school, and the purpose is to study hard so you can get good grades so you can go to college, and the purpose of going to college is so you can get good grades so you can go on to graduate school, and the purpose of that is to work hard and get good grades so we can get a job and be successful move to a city you are not from and have no connections to so that we can get married and have kids, divorce and abandon them, so we can send them to grammar school to get good grades, so they can go to high school to get good grades so they can go to college and work hard and move on to where they have no connections…”
Grim view, I know. But a realistic one in the modern American economy.

I've posted a lot on this blog about the disappearance of various small businesses.  I haven't posted as much on those that have persevered so far, as its always easier to ignore that, although I do have one in the hopper on bars.

As part of what we're observing here this week in regards to Labor Day and the American celebration of labor, we might want to take a look at the conglomeration of absolutely everything.  Indeed, to my way of thinking, it's one of the worst things that's happened to the United States, and indeed the world, in the past century.

Americans are fond of thinking that they live in a free market, but they really do not.  A free market, in a pure sense, is a market in which every individual competes on a level playing field.  But that sort of market, to be truly free, would exist in the absence of corporate entities.  Ours clearly does not.  Indeed, it emphasizes them.

Now, the reason that matters is that corporations, in a state of nature so to speak, would be partnerships, which are assemblies of individuals who are still individuals.  Partnerships, if they are conventional partnerships, exist in a much different legal environment than corporations do.  Corporations may be assemblies of people, and of course are as people are behind all entities and things at the end of the day, but corporations are creatures of the state, created by the recognition of whichever state entity they are formed subject to, and recognized at law as a "person".*

That last thing is a profound legal concept.  Walmart, General Motors, or British Petroleum, for example, are all people in the eyes of the law. You know that they aren't, but at law they are. That means that under the law nearly everywhere they are legally liable as people for their torts, as compared to conventional partnerships in which every partner can be held individually liable for the acts of the partnership.  If that was the law in regards to shareholders and the liability of corporations, there's no way that they'd have grown so large and so predominant.

Additionally, in the United States, thanks to a ruling by the United States Supreme Court, corporations have the same right of speech that individuals do. That's an almost shocking proposition, but it's the law.  It's hard to believe, for example, that every shareholder of Amalgamated Amalgamated holds the same view as the board of directors, but that board can decide what the corporation thinks and how it spends its money on getting its message across.   That's the corporations speech, even if Mrs. Anon Jones in Passedonby, Florida, who is a shareholder, disagrees.

Corporations have been around for a long, long time and there's legitimate reasons to be sure for big and small ones.  The oldest one is debated as to that status.  Some claim the Dutch East India Company, which disappeared in 1799, was the first one, but that status is certainly challenged.


Logo of the Dutch East India Company.

Some claim that status for the Hudson's Bay Company, which has the advantage over the Dutch East India Company in that it is still around with popular stores in Canada now commonly nicknamed "The Bay".

The flag of the Hudson's Bay Company.

While the Hudson's Bay Company hasn't folded in, like the Dutch East India Company, it isn't what it once was, sadly. None the less the company that could and should claim that it made it to the what would be come the American Pacific Coast well in advance of Lewis and Clark was formed on May 2, 1670, a long while back.**

Both of those corporations are sorts of exceptions to the early rule, which is interesting in that they were both retail and manufacturing, with HBC being particularly that way.  The manufacturing aspect of them is what caused the need for their corporate status to exist.  A giant financial enterprise on that scale simply couldn't exist as a partnership, and we won't pretend otherwise.  Corporations are not only the backbone to the Corporate Capitalist system we actually have, but a necessary element of it. The question explored here is a bit different than that.

Before we move on, determining the oldest corporation in the United States would be a little more difficult, although I'm sure it could be done.  There are some really old ones to be sure, with some old businesses that were not incorporated (at least originally) dating back to the 17th Century.  The oldest corporation, oddly enough, appears to be a perfume company, still in existence, but it's hard to tell that for sure.

What something like this tends to show us is that corporations really arrived on the scene for really large commercial trading operations in the 1600s and have been with us ever since.  And over time, they've come to predominate in all sorts of ways more and more.

It's easy to pretend this is a really modern trend, and it is if we take a long view of modern. But it didn't occur within just the last couple of decades.  Certainly big manufacturing came in with the Industrial Revolution.  Big retail came in shortly after that.  Department stores, which are the immediate predecessors of all big box retail, date back to the early 19th Century.  Macy's, which is in every American burg of mid size and up, was founded as a dry goods store in 1858, two years prior to the Civil War.  A whole host of companies that some would recognize now and some would not, followed.  All of them no doubt incorporated early on.

Indeed, at some point some of the older department stores yielded to the newer ones like Target.  Anyway you look at it, the most emblematic of the modern American giganto stores is Walmart, which is absolutely everywhere.

Its with Walmart that it gets tempting, although it would probably be a bit deceptive, to start to claim everything changed.  Before Walmart, for example, there was K Mart, and certainly at one time K Mart seemed like a big deal. But Walmart was exceptionally aggressive in moving into every single market and every single niche that seemed to exist.  At least at our local K Mart (which I haven't been in since the kids were small) you can now buy groceries, for example, but that's only because Walmart did it first.

Walmart has a business model which basically sets to sell everything on earth for the lowest possible price.  It does that by a variety of means, but one of the means is that, once it grew large enough, it pressured manufacturers to lower their costs.  The manufacturers had no choice and in order to do that they've had to do what any manufacturer in a global market has had to do under price pressure, manufacture overseas and with the cheapest parts that the consumers can tolerate using.

As this has happened its been devastating to local retail.

Walmart's backers like to pretend that its "low low prices" benefit everyone but that's very far from true.  What low low prices have done is meant that certain entire sectors of the local economy have closed.  It used to be the case that things like radios, televisions, stoves, and appliances, as well as clothing and the like, were typically bought by local vendors.  I'm in my mid 50s and I can well recall all of that being the case.  Maybe you'd also look at Penney's, Sears or K Mart, but chances are that the local prices weren't far off and were competitive.  Not any more.

And that has meant, by extension, that occupations that people once held in small retail have died.  A person would have to be willing to endure a lot of economic risks to open up a small dry goods store, or an appliance store, or a jewelry store today.  Indeed, a person would have to be willing to endure a whole lot of risk to open a conventional grocery store.

Now, not all of that can be blamed on Walmart, but on the overall trend.  Through the corporate vehicle, size and mass have spread into everything.

Take the popular television advertisement we see in which we're informed that "He want to Jared's" symbolizes undying love.  It might, but Jared's is owned by Sterling Jewelers, a company that was founded in 1910 and which is now owned by Signet Jewelers Ltd, a British company. The parent company has stores all over the globe and just purchased an internet based jewelry company.

 https://3.bp.blogspot.com/-5H7oHpeKg44/UT-ZRtX05DI/AAAAAAAAI4M/pRIJSifxzBE/s640/2013-03-12+15.02.08.jpg
 Sidewalk clock of a former jewelry store.  The store closed when the owner retired.  It was a family business that had been in that family for at least two generations.  I'm not saying that big national chains killed it or anything, but if I were entering the business today I'd surely consider my national and international competition before I did so.

Now, I'm  not saying that either of those business entities is bad in some fashion, but let's be fair. Jewelry stores used to almost exclusively the domain of families, which made a decent middle class, and independent, living on them.

 

So were grocery stores, although that's long ceased to be the case.  All groceries used to be local but just over a century ago Piggly Wiggly moved into with a different business model and now almost everyone buys their regular groceries from a grocery store that's a huge chain.


Now in fairness to those chains, and fairness is due, a strong grocery union means that the jobs at grocery stores actually are generally good middle class jobs with benefits and retirement.  But they aren't small locally owned as a rule anymore.  Oh, sure, you can find a locally owned store, but it will likely be a specialty store.  And perhaps that's both the model and the exception to the rule.  And as noted, in recent years grocery stores, which at least were generally single purpose in mind, have had to compete with Walmart and the like, which now include groceries in them, thereby removing the connection with the local and the course more and more.


And there's hardly anything that hasn't succumbed to this model, or which isn't in danger of of falling to it.  There are still local book stores and record stores, but they struggle against national chains, or increasingly, the Internet.***  There are still local automotive garages, but think of the easy service end of that chain, such as lubrication, and once again you have the chains.****

 
And even industries which don't have a giant big box store to compete with face the problem of conglomeration.  Even in the legal field, which is generally a model of modern guild practice, we now see larger and larger firms in big cities planting roots in the mid sized ones, and giant ones based in huge cities moving into the big cities.  The trend is obvious.

You can, if you look hard enough, and live in a town big enough, find local businesses.  But if you stop to consider what the big box stores are offering and then compare that to the town in which you live, you'll get a clue as to what you'll find in the first instance. And then as you drive down the street and look at the national chains its all the more apparent.

Now, I'm not saying that everything local is gone. Indeed, just a couple of months ago, while working on one of our trucks, I was reminded of how many local industrial mechanics shops still remain and indeed, in order to rebuilt the batter connectors for our 1997 Dodge D1500 we had to go to those local shops as the big national chain batter shop here that had just opened a large new store didn't have what we needed. The small one catering to garages did however, along with a lot of helpful advice that proved critical to the enterprise.

But more and more this is an exception to the rule.

The question is, of course, whether or not this is bad.

And it is.

The problem with this gigantic conglomeration of everything is multi fold, but at least in part what it has done is to take middle class occupations and shoved the former owners of them down into lower wage brackets.  Local grocery stores that supported a family of owners, for example, are gone, and that family has had to do something else, probably a couple something else's, in order to support themselves.  Or at least, they are supporting themselves directly through what they own.

Likewise, families that would have owned any number of local enterprises to support themselves now must work for other enterprises quite often. Sure, there are multiple exceptions, and of course a lot of chains are actually franchises, which is another matter entirely.  But there can be no doubt that a young couple that might wish to open an appliance store and support a young family has to really question their decision.

Beyond that, there's a certain center of mass, or gravitational pull, aspect to this.  I've noticed this in the legal field for a long time.

The practice of law used to feature a lot of very broadly practicing lawyers, many of them absolutely excellent, located throughout a state.  I've detailed it before already, but the practice of law began to shift in the 1970s when the Baby Boomers came into it as they shifted the business model to emphasize making money over everything else.*****Coincident with this, large firms began to increasingly expand into multiple states. The money aspect of this drew off a number of graduates of local law schools to the bigger markets, but the majority of graduates of state schools still went on to practice in their states, very often in the communities they were from.  This is no longer true.

Now, the gravitational pull had caused a cycle in which bigger and bigger firms sought to penetrate smaller and smaller markets, to the detriment of the local practitioner.  This created a crisis in employment for those just graduating law schools which in turn helped bring about the disaster of the Uniform Bar Exam, which allowed "transportability".  That transportability became a vehicle to accelerate the penetration by big firms, but ironically big regional firms have become the victims of giant national firms that seek to do the same thing.  The local lawyer has increasingly gone from a general practitioner skilled at everything to a specialized one occupying the markets that are suited for only the local.  But the practice hasn't improved at all.  Indeed, it's gotten increasingly unbearable for the practitioners and the overall quality certainly isn't any better.

The irony of all of this is that it doesn't have to be.  The concept of incorporation was never really meant to lead to the conglomeration of everything, and in prior eras when conglomeration grew too extensive, at least in the United States the law, in the form of the Sherman Anti Trust Act, stepped in to address it. Now things are far, far, more extensive than they ever were.  But only because we allow it.

During the recent primary election the GOP candidates all came around to how local business could and can be helped.  I doubt that anyone is really going to do anything, but here's an area that certainly could be done.  Large scale manufacturing is certainly a different animal, but retail and the service industries have become conglomerated simply because we chose to allow it to occur, or even encouraged it.  We ought to ask, at least a bit, if in doing that "for" our communities, we instead "doing" something to them, and it wasn't a pleasant thing to do.

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*Indeed, one of the really bizarre ironies of Capitalism v. Socialism is that modern Capitalism, which is really Corporate Capitalism, strong favors the big, but not as much as real Socialism, which doesn't work and which is pretty much extinct, which favors the biggest.  Socialist don't think of it that way, but real Socialism favors the creation of a giant monopoly in which a giant Corporation, if you will, the state, owns and controls everything with the people as the theoretical shareholders, if you will (but in reality, the government is and doesn't care much about its patrons, the people).

**It's odd to me that real backers of Capitalism so rarely cite the example of the Hudson's Bay Company which is the one real example we have a giant corporation serving its interests by basically ruling the northern half of a continent and successfully enforcing the peace while enriching its more or less subjects.  It's a Capitalists success story of epic proportions really.

***Indeed, Internet retailers are posed to be the next step in this, wiping out even big entities in favor of remote cyber ones.  It is, of course, happening.

****Garages themselves, however, hold on.  Perhaps their work is too individualistic to fail.

*****It was at that point that the "billable hour", much discussed in legal circles, came in and began to dominate.