Futures and Options

I’m having one of those days where my motivation has simply decided not to show up.  There are a lot of little things that clue me in to days like this.  Some of them, like checking Cracked.com over and over again on the basis that, “maybe this will be the day they post more than 3 new articles” are relatively benign.  Others, like wading into Yahoo! Answers, are not.  For those of you who aren’t familiar with Yahoo! Answers, imagine a place where people post questions and receive answers from the same sort of people who post comments on YouTube.  If you’re in a mood for feeling better about yourself through schadenfreude, Yahoo! Answers is a good place to visit.  Especially the area for legal questions.  Doubly so if you have any familiarity with the law.

It’s also a passable last-ditch option if you’re really, really searching for anything to do that isn’t reading a casebook.

Yahoo! Answers is the last place on earth a person with any common sense would turn to for legitimate advice.  It’s certainly not a source of advice for anyone connected with the legal profession.  Which makes the question I saw earlier today a bit odd…

What case establishes (or alludes to) privacy as a fundamental right?

Looking for Supreme Court cases referring to privacy as a fundamental right, perhaps some applications in federal cases.
Also, if there are any compelling law review articles on this I wouldn’t mind reading them for a bit of background.

Thanks in advance.

At first blush, this seems like a rather intelligent question (by Yahoo! standards anyway).  OK, so they have the novice assumption that the right to privacy came out of a single case rather than a gradual evolution starting with an 1890 law review article co-authored by Louis Brandeis, but that’s not bad for a lay person.  I mean, the phrase “penumbral rights” really isn’t something that comes up in casual conversation; it’s understandable that someone outside of the field would be thinking in terms of a more generic answer.  Louis Brandeis definitely doesn’t come up in popular culture (which is a damn shame, but that’s just my inner curmudgeon coming out again).

From there on out though, I start glitching.  Applications in federal cases?  OK, I suppose that someone outside the field wouldn’t really know that the vast majority of SCOTUS cases are “federal cases.”  I mean, it sounds odd to me since, while it’s theoretically possible for the SCOTUS to hear a purely state law case on diversity grounds (or if the federal government is sued on the basis of state law), the SCOTUS almost never hears anything that doesn’t present a federal question, but a lay person might not know that.  But why, I can’t help wondering, would a lay person be asking about application in federal cases?  Beyond that, how many lay people even know to ask about law review articles, let alone actively want to read them?

Since the alternative was to go back to reading my IP casebook (or back to watching my Buckeyes fold like a cheap suit in the 4th quarter), I pondered this for a while.  The acceptable grammar, clear formatting, and polite tone suggested that the question wasn’t from a high school student looking for homework help and the request for law review articles essentially clinched it for me; the number of high-schoolers who would know enough to ask about law review articles is just too small.  A curious undergrad?  Perhaps, but, again, the request for law review articles seemed to argue against it.  Someone attempting a pro se case?  Possible, but usually those people will include more information about their own case.

Then it hit me.  1L.  It’s exactly the right combination of knowledge (they know that law reviews exist), over-eagerness (they actually want to read law review articles), and innocence (they think the right to privacy sprang fully-formed out of just a few cases).  But why ask that on Yahoo! Answers?  Even during those first few weeks when the 1Ls are still afraid of professors they should have 2L and 3L students to ask.  The “Career Services” offices are always gung-ho about setting up “student mentors” for just this sort of 1L gunner. Even the most naive 1L should know better than to use Yahoo! Answers for a research resource.

I struggled with this for a few more minutes when everything suddenly became clear…

Kids, if you’re a 1L and either you or your classmates are looking up legal advice on Yahoo! Answers then congratulations, you’re going into massive debt for a degree from a Third Tier Toilet.

Another year of law school is upon me and, amid the usual musings about what my school was thinking when it decided to start a month later than seemingly every other law school in the country, my freshly-minted status as a 2L gives me the privilege of an excuse for chuckling at the incoming 1Ls who are currently bumbling around the law school like so many moths trapped in a recessed lighting fixture.  As a worldly 2L with immeasurably-valuable experience a huge ego, I feel that it’s my duty to force some realism on these poor, over-eager 1L blighters.  So here you go, 1Ls, this is what they didn’t tell you during your two-week orientation.

(1)  That kid in the Three Wolf Moon T-shirt is going to get the highest grade in the class.  The guy in the back of the class who only asks inane questions that annoy everyone will get the second-highest grade.  The people to whom everyone goes for help understanding the subject and who can make theories understandable to laymen will be sitting in the fat B+/A- section of the bell curve.

(1)(a)  Law school exams test your ability to take law school exams, not your understanding of useful legal concepts.

(2)  You will do more work in your first quarter/semester of Legal Writing course than you do the entire year for every other course combined.  You will also receive fewer credits for your Legal Writing course than for any other class.

(3)  That A you get in ConLaw/CrimLaw/Contracts/Torts/&c from heavy study and quiet, rapt attention in class will feel great.  Until you realize that the professor doesn’t remember you at all when you try to get a recommendation next quarter/semester.  The guy who asked question after question and engaged the professor in active debate but got a B+ on the exam, however, will not only be remembered, but the recommendation he receives will be positively glowing.  One of the dirty little secrets of law school is that the ability to do well on an exam and the ability to understand and apply the material are two very different things.

(3)(a)  This doesn’t change the fact that your 1L grades will be the 800 pound gorilla when you’re applying for a place on your school’s journal and especially when you’re applying for jobs during OCI (On Campus Interview) season.

(4)  You absolutely can have a life while you’re in law school.

(4)(a)  It just has to revolve largely around law school.  When you’re sitting in class, look to your left, then look to your right.  These people now represent at least 95% of your friends (at least, the friends you’ll have time to interact with in person).  During the first couple of weeks, or even months, you may think you’ve escaped this one.  You haven’t.  It’s only a matter of time before “The Law” starts taking over your brain.  Sooner or later you will be watching a show on TV and you’ll start complaining about an element of law that they got horribly wrong.  Or you’ll hear a friend mention a common misconception about a legal theory and you’ll read him the riot act for it.  The change will come and, in time, you’ll start to believe that the only people who really understand you anymore are your fellow students.

(4)(a)(1)  The only people who understand you will be your fellow students.  Law school is a huge time sink and you’ll find that even when you’re not in class, it will creep into your thoughts.  You’ll make parody songs expressing your frustration with the legal memo you’re writing.  You’ll make jokes that have punchlines containing the phrase “strict scrutiny.”  No matter how much you try to avoid it, you will incorporate law within the rest of your life.  That’s not helpful when communicating with normal people.

(5)  By the time Spring comes around, you’re going to start responding to things like a lawyer.  As one of my professors once commented on a judicial decision, “the human response is, ‘what the hell were they thinking’ but the lawyer’s response is, ‘that’s a fascinating question.’”  At the very least, you’ll understand why the ultimate verdict in the Casey Anthony trial was, legally speaking, most likely correct.  This will not make you popular.

That’s about all I can think of off the top of my head.  Congratulations on your decision to study law.  Have fun.  I hope you really like your school’s law library; you’ll be spending most of the next three years of your life there.