The Great Change: Turning Cathy into a Lawyer

I went to city hall today, but before I could visit any offices I was commanded by the security guard to give her my name.

It is absolutely appalling that to access city services people need to identify themselves and have this information recorded. What possible positive purpose could such a procedure serve? The guard said it was to stop terrorism. I can't imagine how.

I can however imagine how policies like these further undermine our liberty. When everyone's business can be known and recorded by any power able to compel its disclosure, it provides the fuel for that power to be sustained and expanded as it can now use that information against those it would rule.

But it was just a name, some might say. What's the harm in that? Well it was more than a name. It was who I was, where I was, and what I was up to. An enormous volume of information is provided when identifying oneself. And even if you think that it's still too small a datapoint to result in any real harm, remember that this data was recorded, and if combined with other similar teeny, tiny datapoints, like a Seurat masterpiece suddenly you can paint a very vibrant picture of an individual's heretofor private life.

I can't see how it is anyone else's business, much less the government's, to be able to know so much about the lives of its citizens. I further can't understand how this kind of tyrannous policy was able to take root in what's supposedly one of the most liberal places in the world: Berkeley.

A few weeks ago I blogged about the Huey Lewis and the News concert I went to see in Marin County.

This week SF Weekly published another person's account of the concert, written by a woman who works with developmentally challeged (or "retarded," as she flatly puts it) people who, universally it seems, all love Huey Lewis. Many were in attendance that night, she reports, and despite the concert being held under a low-flung, sweltering, crowded tent they all seem to have had a fantastic time nonetheless.

Her article is an interesting read.

My blog is under a full-scale attack by spammers, at unprecedented levels. As a result I've had to turn off allowing unregistered comments, at least for a little while. I'm hoping that if it's off, the spamming will stop. Or at any rate, I can't let them accumulate faster than I can delete them and block their IPs. Given that turning it on for barely 5 minutes resulted in 27 new comments, I shudder to think how many would accumulate if I were offline for more than an hour (which sometimes happens, like when I sleep and stuff).

I'm hoping it will soon blow over, but in the meantime I've done this and I'm turning off comments on more old posts. Except for closed posts, though, you can still comment -- as long as you register. The problem: I'm not quite sure how you register. I think there's a way you can register on my site if you want to comment, but I haven't quite figured out how. You can also use a TypeKey login, but I think I need to tweak my settings to make that work and I'm not quite sure how to do that either.

One way or another, though, I'll do something (as soon as I get the chance). I like having people comment. But it may be a little hit or miss for a bit until I get this worked out. $#*%$ spammers...

Edit 8/4/05: A compromise on comments... You can post annonymously and unregistered-ly, but they won't show up right away. I'll have to approve them and then they'll show up. I plan to approve everything that's not a spam, though, as a matter of course, and HOPEFULLY this will be temporary and I'll be able to turn them back on completely. But in the meantime this seems like a reasonable middleground.

The last attack at least seems to have abated, and perhaps this change is why.

Sometime last year, as part of my networking activities, I went into San Francisco to meet a lawyer for lunch. There's this pedestrian area near the financial district with lots of restaurants, including a purportedly French one. We dined there, but I was caught off guard by the accents of the waiters. They all had these supposedly French accents - but there was something wrong with them. They seemed to not be the accents of actual French-speaking people trying to speak English, but rather people using the accents that Americans expect a francophone to have when speaking English.

These accents are not the same. A native French speaker naturally will change vowels, emphasis, and some consonants in a way that reflects how they are normally attuned to using their voices. But it's not what the American ear expects a French person to sound like. Our concept of a French accent puts those vowels, consonants, and emphases in completely different places - places which might be impossible (if not also incredibly unlikely) - for a native French-speaker to achieve.

Having lived in France and known quite a few English-speaking French people, I have some idea of how they normally sound. And they don't sound like these waiters. I thought it was sort of amusing, and told my companion, that the waiters somehow felt they needed to use such a contrived affectation in order to shmooze with the clientele.

But that was last year, and I'd forgotten about it until yesterday when I met a friend for lunch and we went there. (He speaks French himself, although he is not a native speaker.) We had a different waiter than I'd had the last time, but he had the exact same ridiculous accent. I would never, of course, make fun of anyone's actual accent, but affectations deserve skewering. Especially one designed to con us into buying into the authenticity of the restaurant.

I mean, as I told my friend, if he were really French, why would he have had that confused look on his face when I asked for butter on my ham sandwich? The French eat jambon et beurre (ham and butter) sandwiches all the time.

We didn't have much contact with our waiter, which was fine because I was really there to catch up with an old friend and not so much to taunt the waitstaff. But when the waiter returned with the credit card receipt and forgot to leave a pen, I told my friend he should ask for un stylo, just to see what would happen.

Apparently, however, my friend was even less up for taunting the waitstaff than I was, and so didn't.

But if I ever go back, next time I think I'm going to order entirely in French.

I met with a lawyer friend today to talk about my note. (Remember that?) The thing is languishing in academic limbo. It's supposed to satisfy my upper division writing requirement, but I haven't heard a peep from the evaluating faculty on whether it does in its current form.

Meanwhile, I'm interested in making any improvements necessary in anticipation of getting it published somewhere, so it was worthwhile to hear my friend's thoughts.

He gave me lots of feedback on the legal issues that I need to incorporate. And he also gave me some structural feedback:

Pretend you're representing one side in a suit, he said. What arguments would you press, and what ones would you expect you'd need to deflect?

Sounds obvious, right? Well, NOW it does. But it's the first time anyone ever described note writing in those terms to me. It would have been really helpful had someone said the same thing to me a year ago. Some guidance, you know - so I wasn't left to my own devices to flounder around until I happened to figure out note-writing on my own. (A hardly likely event - a thousand monkeys on a thousand typewriters in a thousand years would not manage to write a good note, and neither would I without some instruction.)

I don't really want to lambaste peer-edited writing projects altogether: I imagine they can be very positive experiences. But they are entirely contingent on the efforts put in by the upperclassmen giving the advice. I didn't get much of that. To some extent it wasn't their fault - there was a period when I got behind, and I let my note editor off the hook until I got caught up. But even when I did, ultimately I never heard from him. And the one set of comments I got from the editor in charge of the process had one helpful bit, but then was otherwise preoccupied by how often I split my infinitives. If I don't cert (get academic credit for the paper) because I split infinitives I'm going to raise hell. It's not even a rule anymore that you can't!

Anyway, I'm grateful for the great help I've gotten from my friends but very frustrated by the process. As well as stressed about how much work will still be required to make this thing what I really want it to be.

Law.com had an article about a case from Texas (Peck v. Peck), where a Texas appellate court upheld a ruling that an ex-spouse could not have a boy- or girlfriend stay overnight in the house when the child was present. Purportedly the appellate decision was an affirmation of the lower courts' ability to interpret the "best interests of the child."

But this sounds like a very wrong decision, both by law and by policy.

I'm away from my Con Law textbook so I can't cite the specific case, but there was a Supreme Court decision on the rights of grandparents – which basically said they have no rights to the child, unless there has been some defect to the parenting. (And keeping a kid away from the grandparent does not count as a defect.) Obviously a jointly-custodial ex-spouse does have more rights to the child than a grandparent would, but the take-away from that case seems to be that the parent with custody of the child has a wide degree of latitude to make decisions for the child without risking being overruled. I don't see why that latitude wouldn't also be afforded to the parent with actual physical custody on a particular day. Physical custody usually implies a fitness on the part of the parent, and unless the boy- or girlfriend was an abuser or otherwise engaging in criminal behavior, the decision to actively date this person does not equate to a defect in parenting.

Furthermore, to expose that decision to either the court's – or the ex-spouse's - scrutiny seems to fly in the face of Lawrence v. Texas, a decision that seemed to be very clear on getting the government out of the bedroom. But that's exactly what the government is doing, when it uses custody proceedings to tell an ex-spouse whom he or she may sleep with and when. It also gives the other ex-spouse a degree of control over someone else's private life that hasn't been permitted since slavery. This is not to say that the other ex could overrule a marriage – although by this court's reasoning, why couldn't it? – but that this veto power over dating relationships gives an individual a tremendous amount of power over another, a kind of dominion over another's autonomy which cannot be justified in a society of free individuals. Even within the bounds of a marriage there are limits to how much control one spouse can have over the other (eg, marital rape is still rape), and after its dissolution there can be even less. But that's not what these Texas courts seem to be saying. They seem to be saying that by virtue of having been married to and having born a kid with a person with whom a marriage is no longer possible, the ex-spouse needs to forfeit control of their private lives and personal happiness to this other person for up to the next 18 years.

As a policy matter, this decision can't yield a good result either. Particularly for those people who think having an intact family is a tantamount policy goal. The first marriage is gone, but the obstacle to date freely prevents new family units from being formed. Sure, not all second marriages work out well for the kids or parents involved, but sometimes that's because people don't know what they're getting into. Allowing for families to naturally grow into cohesive units seems to be in everyone's interest – but having to kick people out of the house right after dinner hardly seems conducive to that goal.

This is obviously a matter of Texas law and the Texas courts might work it out on their own, but Texas law must yield where US law provides. And this seems like another instance – like Lawrence – where Texan legal hegemony comes into conflict with the rights afforded to individuals by the national Constitution.

That's how court was called to session yesterday in Courtroom 3 of the Ninth Circuit Court of Appeals. When the judges were ready they pounded twice on the door and then the court clerk immediately banged the gavel. "All rise!"

The three judges silently entered and took their seats. Then the one in the middle swooped his arms out, and lowered them, wordlessly telling the assembled crowd to be seated.

The courtroom was packed more than a half hour before the 1:30 session began, and many people were turned away, told to watch the proceedings on closed circuit tv in Courtroom 1 and the cafeteria. In fact, it was a bit of a problem finding seats for all the lawyers who were representing parties in the afternoon's cases.

It was in the James R. Browning Courthouse in San Francisco. A big old solid granite building, the interior was ornately decorated in the way they used to decorate buildings decades ago. The hallways were broad and gilded, and inside the courtroom ornately carved plaster reliefs and tile mosaics covered the walls. The ceiling had three stained glass skylights, and even the tiny tiles on the floor were decorative. It was a room whose attention to decorative detail was commensurate with the importance of what took place within it.

If it is ever true, as many believe, that lawyers are power-hungry and arrogant, appellate hearings are the great equalizers. Lawyers who've practiced for decades can be reduced to quivering creatures humbled before the bar. Two cases were heard yesterday, a habeas matter from Nevada, and an appeal of class certification in an employment discrimination case. The first was disposed of quickly, with each attorney taking no more than the usual allotment of 15 minutes to make their case. Both attorneys did well but were clearly nervous. The first one clutched the sides of the wide lecturn in a way that hardly looked comfortable, but probably kept his arms from flailing. The second one spoke too softly at first and had to be asked by one of the judges to speak up. But it was clear that they were not seasoned appellate litigators, and the court did not expect them to be. They were simply advocates whose clients' interests happened to have reached that stage of airing, and so they went where the case called them.

The discrimination case was different. It was a big, well-known case and the advocates had been chosen for this moment. The judges weren't vicious, but they laid into the lawyers for that case more than they had the previous. Yet the lawyers generally withstood the onslaught well.

And then it was over. After the last attorney concluded, the judge announced that court was in recess until 9:30 am tomorrow morning. And with that we all stood and they left the room, and then so did we.

The appellate argument I went to hear yesterday was in the matter of Dukes, et al. v. Wal-Mart. The larger case is an employment discrimination claim raised by several female Wal-Mart workers. But this hearing was focused exclusively on whether the lower court judge had erred in giving the lawsuit class action status.

A class action lawsuit generally means that one case can be argued, and the result will apply to any individual who is part of the class. In one sense it's efficient: if there are many people who have suffered the same harm, there only needs to be one lawsuit. On the other hand, class action lawsuits can be very expensive for defendants to settle or lose because they'll have to compensate all the people affected, as opposed to just a few who managed to have their suit(s) brought.

That ability to bring a lawsuit in the first place is also one reason class action lawsuits can be useful (or harmful, depending on your perspective). Complex litigation, particularly against large corporations, can be very expensive and it's hard to get an attorney to take the case if there's not a possibility of being compensated for the effort at the end. Most individual people can't afford to pay an attorney a straight hourly rate, so attorneys often take cases like these on contingencies, meaning that they get about a third of the money if anything is recovered as compensation. But for just one client – or maybe even a handful of clients – there may not be enough to recover that a third would sufficiently compensate for the labors of the attorney. Also, a lower amount of potential damages may induce the defendant to stretch out the litigation – something very expensive for the plaintiff's lawyer that hasn't been paid yet but possibly cheaper for a company, who may hope that if they can just outlast the plaintiff the matter will go away. With a class, however, the damages pot gets increased and so it becomes more economically feasible for the attorney to take the case. Not only would there be the possibility of a greater reward at the end, but because a loss would be so expensive for a defendant it may induce it to settle. Having a class action thus increases the certainty that the plaintiff's attorney will be paid at all, as well as increasing the likelihood that it will be paid well.

But while it may help plaintiffs get lawyers, it also may reduce their total rewards. One argument raised yesterday was that it may not be in every client's interest to be part of a class because she might be entitled to a greater reward if her case was heard on its own. (Whereas for a class action, the ultimate result will probably be somewhat amortized over all the people in the class and less tailored to each individual's actual losses.) On the other hand, as mentioned before, the class status does help induce settlement, and for many plaintiffs it's better to get some money with certainty than risk getting no money at all. Plus the possibility of class status may be an important factor in whether a wronged plaintiff can even get her case heard in court at all.

So the plaintiffs in this case were very interested in having the lower court's decision granting class status stand. And Wal-Mart was very interested in having it overturned.

Wal-Mart had three arguments for why it should be, although I believe only one was fully vetted in court. (The others are likely argued in their written briefs.) Class status can only be granted when there is "commonality and typicality," and, Wal-Mart argued, here there was not. Their argument then focused on some of the evidence that the lower court had used to make that determination, and the methodology by which it was collected. In particular the discussion focused on whether the statistical data the plaintiff's provided aggregated from Wal-Mart stores across the country was as valid as data gleaned from each store individually, as Wal-Mart proposed doing. The appellate court did question, however, why the individual data would have yielded a different result, to which Wal-Mart said that the aggregation data "masked" what's really going on at each store.

Part of the tension in this entire case stems from each individual store having discretion in hiring decisions. Wal-Mart believes that because each store has discretion in whom it hires that it is not possible for the company as a whole to be discriminatory in its hiring practices. But the plaintiffs argue that there is still enough structure in the process originating from the company that causes Wal-Mart to, across the board, pale in its salaries for women compared to its competitors.

The answer to this conflict does seem to bear on the class action status. As a class action lawsuit predicated on Wal-Mart potentially having a discriminatory corporate hiring policy, the evidentiary scrutiny will be paid to those corporate policies themselves. Whereas in an individual discrimination lawsuit, it's the hiring supervisor's actions that would be most scrutinized. Wal-Mart argued that it was denied due process by turning the case into a class action because it meant it would not have a chance to individually dispute each discrimination claim, something that would not matter as much if the root of any discrimination was from a central corporate policy, as the plaintiffs claim.

In a sense, whether or not this case is a class action or not determines which case will be argued: the one proposed by the plaintiffs or the one by the defendants. But that's not what the appellate court is considering. The hearing yesterday was focuses exclusively on deciding whether the lower court judge had erred in giving it class status. The inquiry first needs to resolve what standard of review the court should use to consider the correctness of the lower court judge's decision, and then decide, using that standard whether the decision should be allowed to stand or not. In this case the plaintiffs argued that the correct standard should be "clear error," meaning that unless the lower court judge had made a huge mistake in interpreting evidence or law, the appeals court couldn't undo it (even if it disagreed with it.) Wal-Mart, for its part, preferred that the appeals court look at the totality of evidence and reconsider the question, necessarily reaching the opposite result.

Either way it's a tricky case, and the arguments yesterday tended to end up considering the merits of the entire case, or discussing the wider policy reasons for or against having class action lawsuits at all. One such complaint about class actions that was raised is that they can get unwieldy if it is a very populous class (as this one is suspected to be). On the other hand, individual lawsuits can also be unwieldy, and at least one of the judges seemed dismissive of Wal-Mart's argument that potential difficulty in managing this case as a class action would be justification for overruling the class status.

In the end, however, on the issue of whether the lower court judge erred in awarding class status I don't think the appeals court will overturn the decision. Unless there was some crucial argument in Wal-Mart's brief that was not raised during the oral arguments, Wal-Mart didn't seem to explain why the appeals court should use anything other than "clear error" as the standard to evaluate the decision, nor demonstrate that one in fact had been made.

Law students pretty much anywhere at some time or another during their studies take a moot court course. It's a class in appellate advocacy, where students learn how to draft compelling briefs and then speak before a panel of judges.

We are often told (or at least I remember being told) how important it is to show the utmost respect for the judges. That lesson is mostly taught in the context of the presentation of oral arguments – be sure to say "Yes, your honor," or "No, your honor," and show them as great a deference as possible. Do not get a judge angry with you and risk having him hold it against your client.

The same admonition is just as applicable for the brief, however, as it is for the oral argument. Do not offend the presiding judges' sensibilities by showing anything less than the utmost respect for the lower court judge, no matter how wrong you think his decision was.

Unfortunately, the attorneys for Wal-Mart may have missed class that day, because in their brief they apparently used a lot of grandiose language about how their client's due process rights were "trampled" by the lower court judge. And at the hearing yesterday one of the judges called them on it.

"I want to ask you about some of this language you used," he began slowly, and then read back a handful of miscellaneous sentences in a subtly dismissive way. At first it was hard to tell where he was going with it – was it just another question about Wal-Mart's argument? – but then, at least to the law students in attendance, it became clear that he was upbraiding the attorney.

"You need to be courteous to the judge," he chastised Wal-Mart's lawyer, but your language doesn't show him any respect. "You're at a big law firm and you haven't learned this lesson yet?"

The judge went on. "Do you really think this language is going to persuade us?"

While the audience may have grasped what was going on, the attorney may not have, because his immediate response was, "That is our hope."

Maybe the attorney was oblivious, or maybe he was just good, because he didn't crumble under the pressure. While the crowd squirmed, he kept his composure. He uttered several times, "No disrespect meant to Judge Jenkins," and then, like a good advocate, he reframed the problem in terms of the client's interests. "We really feel Wal-Mart's due process rights are compromised by the decision," he reiterated, and eventually, after several awkward and tense minutes, the storm passed.

But not before the presiding judge made clear, "You owe Judge Jenkins an apology."

I don't think the case will turn on this issue, but I'm pretty sure that if you are an appellate attorney this is the kind of thing you never want to hear from the judge.

Edit: Actually, if I recall correctly the judge said something like, "If you ever see Judge Jenkins again, you owe him an apology." It seems like sort of an inevitability that he will, since this case will be returned before him one way or another after the appeals court rules. So it was probably not a good move to antagonize him this early in the game...

We¹ interrupt this discussion on law and justice to ask this important question about base running.

(Cross-posted at the Huey Lewis and the News board, which is always a good place to talk baseball...)²

Since we're talking baseball [...] I have a base running question. There have been a couple of situations like the one tonight [at Tuesday's A's game], when on a long fly ball the runner wasn't able to advance.

Tonight's scenario: first base empty, runner on second, one out. There's a long fly ball hit deep. It's either going to clear the fence, be caught on the warning track, or drop in on the warning track. But as the ball carried, the runner came pretty far off the bag. Meaning that by the time the ball was fielded (in this case, caught on the fly) there wasn't enough time to come back, tag up, and then go to third. But the ball was hit deep enough that had the runner been standing on the bag, there probably would have been time to advance - even if the ball had dropped in for a hit.

My question: is it bad base running to have wandered so far off the bag? The upside to doing that seems to be that if the ball did drop in, the runner might have been able to get all the way home. But the A's were way behind at this point, and just getting to third would have been helpful. It seemed that in trying to get the extra bases, they gave up a good chance to get one.

Anyway, a few weeks ago there was a similar situation with the runner on first, where on a deep hit he couldn't advance because of the tagging problem. I forget the exact details of that play - which obviously was a little different because of the force situation - but I remember thinking even then that given the deepness of the ball, there was no reason to lead off so far. Even if the ball were to drop in for a hit and the runner needed to make it to second, there would have been time to get there.

So it seems like this is the way the A's like to run the bases this season. But I wonder, is it wise?

Anyway, over at the board no one's answered me. They're all busy talking about music videos and upcoming concerts. Troglodytes³ ;-)

But I thought I'd share my take on it over here, and see what other opinions might be.⁴

1. And by "we," I mean "me," but "we" sounded better.
2. Does this surprise you? They did name an album "Sports."
3. I'm kidding. Mostly.
4. Apologies to the Unreasonable Man for borrowing his footnoted blogging style.

Remember that lush canyon I described driving through in Utah earlier this summer?

It blew up.

Fortunately (for me - it was also fortunate no one got killed) I wasn't planning to do the return trip via the same route. There are a few things that any roadtrip needs to be successful, and one of them is an actual road. (A 30-foot deep crater is a poor substitute.)

It's 7:11 in the morning, and I've already been up an hour. Today is the day I need to finish packing up my car, finish up at work (to the greatest extent possible - there's a bit of a Sisyphusian quality to my clerkship, with an infinite amount of work I could be doing but, unlike Sisyphus, fortunately, not an eternity of damnation to spend doing it), get my haircut (which unfortunately requires an hour commute each way), meeting a friend for lunch, and then driving to the middle of Nevada.

But it's practically a day off compared to tomorrow, when I have to drive 1010 miles, and learn to speak fluent German.

The final insult, I thought, was driving out of California in a gigantic traffic jam. It took hours longer than it should have to get from the Bay Area to the Sierra foothills. "Thanks a lot, California," I thought, "for making that my final California memory."

But California wasn't done with me yet, because the delay put me in the high Sierras in late afternoon sunlight. I'd never seen them that color before. But by any objective standard they were gorgeous. And yet I had to leave them behind.

California is such a jerk.

Last night I helped my dad clear the table. "Where do we put the trivet?" I asked.

Then I interrupted myself. "What a useless word, 'trivet.' In a way it's nice that there's such a precise word for this specific thing, but it's sort of a waste of mental space to have to know a word that almost never gets used."

To which my dad said, "Oh, I don't know. I try to use it three to four times a day."

And then, over the course of the rest of the evening, he did. Of course, not always in its original meaning, as a noun describing a portable flat surface upon which one sets hot dishes. But sometimes as a verb or an adjective. Which necessarily involved adding some new meanings to its definition, as the context it was used in would dictate.

At first its meaning fluctuated somewhat randomly, but over the course of the evening it did seem to take on a consistent usage. As an adjective it sort of described a state of flummoxed confusion. In fact, in a way it described that particular condition better than any other actual English word did. So much so that I think the word "trivet" (or, in this case, "triveted") should be adopted for common parlance.

I suspect it could be done so successfully, as at one point my sister wandered into the room when my dad inserted the word into conversation. It was perfectly clear to me what he was saying when he used it, but not so my sister who had never come across this word before – despite her rather expansive vocabulary. Completely trusting that it was an actual word in an actual dictionary, she asked my dad what it meant so she could add it to her repertoire. I think she genuinely expected that it would have some lengthy etymology, dating back perhaps to Ancient Greece. As opposed to the backyard, an hour earlier.

My car is currently resting quietly in my dad's driveway. After leaving Berkeley Friday afternoon, I pulled into New Jersey yesterday (Monday) afternoon, not 72 hours later. I'm very glad not to be driving anymore, although I will have to go to Boston later this week. But first I breathe...

It's particularly hard going west to east, because you keep losing hours as the time zones change. The question is whether you lose driving hours, or sleeping hours. Unfortunately, I'd already lost a lot of sleeping hours before I got started, and then lost even more en route – thanks to a really loud Super8 in Winnemucca. (At first I thought the upstairs neighbors were just early risers when I began to hear footfalls before 5am. Then, as the noise continued through 6am, I began to think they were early risers who ran marathons, and were getting in a practice run right then.) As a result I couldn't get through the 1000+ miles I'd intended to do the next day, finishing about 50 miles short of my preferred Nebraska destination. Fortunately I managed to catch up the next day and got to where I wanted to be in Ohio.

Of the states that I-80 passes through, I liked some more than others. California alternated from stifling hot, flat and congested to gorgeous and soaring. Nevada is wall-to-wall desert, but I find the desert so striking that even though I've been on that route about a half a dozen times, I still find it captivating. Same with Utah. Wyoming did impress me more this time around than the last, perhaps because I knew better what to expect. But I still did have a few concerns about Wyoming: for one, the truck stop at the end of the exit ramp in Evanston that I really like – the one who managed to keep me from running out of gas the last time through – apparently is out of business. I was heartbroken. It also used to have an A&W franchise, and I was looking forward all through Utah to being refreshed by some nice, non-caffeinated soda when I passed through. (I don't drink caffeine when I drive long distances to cut down on the pit stop frequency. Instead I try to stop every 150-200 miles, to refuel, refresh, and, er, restroom...) The other problem was that once again, as I got to Laramie and Cheyenne, there were storm clouds brewing. Given that last time these clouds spawned a tornado, I was a little nervous. Plus, unlike last time when it was during the day, now it was getting dark. Tornadoes are scary enough when you can see them – I wasn't looking forward to encountering one that I couldn’t. So I can't say I really like that part of Wyoming, as every time I pass through there I end up terrified...

On the positive side, however, as I climbed through the ochre hills east of Laramie, the blazing sunset cracked through the storm clouds to turn the hills the most brilliant shade of orange I'd ever seen. Contrasting against the lavender sky, I was practically blinded by their brilliance. Unfortunately, once I reached the top, the clouds had thickened into a dark fog that blanked the road, and thus made a long drive even more tedious. I've often noticed how in the Midwest, the sky seems much lower than it does on the coasts. And that night it was extremely low to the ground indeed.

The next state was Nebraska. Most of the people I met in Nebraska were very nice, but the terrain was not nearly as enjoyable to look at as Kansas to the south or Iowa to the east. Iowa was very nice, with rolling green cornfields. However, the edges of Iowa were unpleasant – way too crowded for the capacity of the roads to handle. This was particularly true in Council Bluffs. Also one of the worst moments of the whole trip happened at the eastern edge.

I'd accidentally let my gas gauge drop too far. (I was trying to cross the whole state on one tank.) Stressed that at any moment I was going to stall I pulled off at one place but I had to leave when I discovered it wouldn't take credit cards. At the next place I pulled up to a truck stop that was packed. Cars were queued up by the pumps, and I joined the end of one. However, while I was waiting some jerk got on line at the other end, thereby cutting me in line. Then, when I finally got to the pump, I had to walk through a puddle. Which I realized too late was a puddle of gasoline! It got all over my shoes, which got all over the floor of my car, which made the car reek of gas fumes. I tried to wipe off my feet on the mulch of the nearby landscaping, but it didn't work. Plus it made me wonder if I'd now accidentally turned my Tevas into a bomb...

All told, the downfall of western civilization was clearly manifest in that moment. There were all the ingredients: machinations, environmental degradation, and incivility. It was not a shining moment for the species, I dare say...

Illinois was the next state, and it was not the giant construction zone I feared it to be. In fact, all the delays I'd endured too years ago have left behind some pretty nice road. Then the rest – Indiana, Ohio, and Pennsylvania – all passed by unobtrusively until I finally got to New Jersey and home.

I certed!

This means that my note passed the upper division writing requirement, and I don't have to do a thing more to it in order to graduate. I may anyway, because I'd like to publish it, BUT I DON'T HAVE TO!

Not only that, but the evaluating professor said I wrote it really well, "like a law professor." What a lovely compliment!

Anyway, I'm absolutely thrilled to have that pressure removed, and positively ecstatic that I won't need to slave away at it either before, during, or after my move to Germany - unless I want to.

One step closer to graduation...

On Wednesday I came up to Boston for a few days to take care of everything I couldn't do from California this summer or wouldn't be able to do from Germany this fall. A lot is getting packed into these few days, and not all of it is very much fun.

Thursday I went to school to deal with lots of administrative issues. Most were tedious, but one is particularly concerning in that I don't think it will be satisfactorily resolved: (Edit 3/8/06: Actually, it was.)

I leave Boston on Tuesday. I leave the country entirely on the 29th. However, my financial aid loan disbursement - the money I really, really need to live on - won't be available until the first day of classes, or September 6. Normally what I've done in the past is, on the first day of classes, written a check for the outstanding balance owed to the school, and then they've handed over the loan check to me in its entirety so I have that money that day. But I won't be able to do that on September 6, because I will be several thousand miles away. So the financial aid office said the university can cash my loan check and then cut me one to refund the difference and then mail it to my mom, who will then be able to deposit into my account for me. That would be fine, except on Thursday I was informed that the school would probably take a week before writing it the new check, and then it would be several more days before it arrived in the mail. Meaning that I wouldn't see the money until mid- to late September.

This isn't going to work! I've been in school for two years, and any financial cushion I might have had to compensate for bad cash flow is pretty much gone. Already I've been begging and pleading with the dentists and doctors I saw this summer not to bill me until the fall, and trying to time charges to my credit card to hit the future billing cycles, but there's limits to how much I can rob Peter of to then stiff Paul on. And I think I'm going to be pushing those limits because of this delay.

What really infuriates me, however, is the complete lack of responsiveness from the school. Now, I should say that in theory BU could still come through for me. And I've talked to some helpful people in the law school (none of whom can control the situation, however). But I seem to be trapped in this nightmarish bureaucracy, where only because I'm doing this touted school program, I risk financial hardship because the university can't see clear to make whatever exceptions to its policies it needs to make in order to make sure I have the funds necessary to complete my studies in a timely way. For this I pay tens of thousands of dollars a year? Support me in doing this, dammit! Don't just throw up your institutional hands and say there's nothing you can do to make sure I can focus on my studies and not worry about bouncing checks and late fees. You can fix this, and I expect you to do so.

Anyway, with this and other stressful matters confronted on Thursday I felt like I spent the whole morning being shrill and whiny. Which may be an accurate assessment of my comportment -- not that it was unwarranted, however. It seems like ever since I decided to do this law school thing life has been non-stop nits. There's always new things to worry about, new things to do, new deadlines to meet. It's very wearing, and Thursday was a very wearing day.

Until the very end, when I went to a Huey Lewis and the News concert that night in the city, and got to watch it from the side of the stage. From a sound, and even visual, perspective it wasn't the best place to be, but it was so extraordinarily cool to be there and watch this fabulous performance be created from the inside out it hardly mattered. Plus I was so worn already it was easy to just get sucked into the moment. I was sort of at the right level of tiredness: subdued enough to not need to be scraped off the ceiling from excitement, but not so tired to be an imbecile... I stood there, in awed transfixion, loving every moment of the concert as it unfolded before by eyes.

And as the specialness of the situation dragged me away from my world of stresses and cleared my mind of all distractions a weird feeling came over me. And I recognized it as a foreign one I'd almost completely forgotten over recent years: contentedness. I was as plainly, uniformly, and undilutedly happy, just standing there, as I've ever felt in years.

At the Huey Lewis and the News concert in Boston and again last night in New Hampshire, Paul Thorn was once again the opening act. I'd first seen him last summer opening for HLN. And he was fantastic. When I go to a HLN show I really want to see HLN, and RIGHT NOW. Not some other guy... But Paul Thorn's performances are absolutely worth seeing, and I was happy to catch some again this year.

A singer/songwriter, Paul speaks and sings with a thick, rhythmic Mississippi accent. His songs tell wryly humorous and insightful tales gleaned from his rather interesting life (for instance, he was once a boxer who fought Roberto Duran, which resulted in a song entitled, "I'd Rather be a Hammer, than a Nail."). Other favorites I've heard include "Joanie, the Jehovah's Witness Stripper," and the bittersweet, so-beautifully-melodic-I-can't-help-but-sing-this-in-the-shower song, "If I Can Get Over Her, I Can Get Over You," where he compares the soul-crushing feeling he felt at 10 years old when he saw his puppy-love sweetheart being pushed on the swingset by another boy, with how he's felt when a more contemporary relationship ended with the same depth of heartbreak.

As he sings his set, he shmoozes with the audience with his perfectly-paced southern drawl, charming even the most begrudging audience and bringing the crowd into his stories. (A woman sitting near me last night, in the middle of his set as she laughed and clapped, exclaimed, "I'd pay to see him!" High praise indeed, particularly from someone who hadn't even heard of him before and had certainly not come to see him.) It's interesting, because when I've seen him perform on the north side of the Mason-Dixon line, the audience laughs at the mental images of these characters his songs conjure up in their heads from this foreign world he describes. Whereas when I saw him perform in Virginia, I saw most of the audience nodding their heads as if to say, "Yep, I have relatives like that."

I've had a chance to meet Paul and talk with him a bit at some of these shows. At one, he paid me the wonderful and hopefully-deserved compliment that I was "an interesting person." I'm glad to return the favor and lob the certainly-deserved praise back his way, with my sincere recommendation that people should check out his work.

The other reason I came up to Boston this weekend was that today my laptop-loaning friend got married. He and his wonderful former girlfriend tied the knot in a very nice backyard ceremony. I've been to a few friends' weddings before, but not many. And at most of them I felt a bit like an outsider - not in the immediate circle of friends and family. But this was different. I consider them some of my closest friends, and I was honored that they asked me to sign their ketubah.

A ketubah is the actual covenant document in a Jewish marriage, and it's signed by witnesses. Because traditional Judaism is patriarchal, witnesses must be men. But a lot of progressive Jews, my friends included, ask women to sign it as well, for the day "when they count too."

To do it, I had to sign my name in Hebrew: "Chaya bat Shalom" (roughly the equivalent of "Cathy, daughter of Steve," except using our Hebrew names). And I had to use actual Hebrew script to do it. The problem: I can't read or write Hebrew. But I got there early, and a relative who did wrote it out for me and I spent the next hour practicing. I got it down pretty good, although I was still nervous about writing it on such an important document. Turns out I needn't have worried - I actually did pretty well. (Although I did manage to screw up the English version of my name I also signed with, and you'd have thought I'd have had that one already mastered by now...)

When I looked at the ketubah later on, after it had been all framed, and saw my handwritten Hebrew I felt sort of amazed that it was my writing. "I did that!" I proudly exclaimed to myself. It was strange to me that I was able to produce letters like these, but it made me think that maybe someday I'd like to be able to write more of them.

(I've also decided that I would like a hora at my wedding. This may require marrying someone Jewish, because I'm not sure I've got enough Jewish relatives to manage hoisting the chairs on their own, but irrespective of the groom ... I want a hora.)

After a fruitless conversation where I attempted to explain the concept of "customer satisfaction" to a recalcitrant motel manager in Winnemucca, NV, Super 8 made good on refunding me a reasonable portion of my bill. Or at least it would have been reasonable, had it not involved three separate phone calls to make right... So I will deign to stay at a Super 8 again (although NOT in Winnemucca), though cautiously. I'm not *entirely* sure anyone at the company really gets it either, but I am satisfied enough to give them another chance.

Although like I said, not in Winnemucca. As I tried to explain to the manager there, for someone who's not a trucker I drive the I-80 corridor rather a lot. It may arise again sometime that I will want to stay in Winnemucca, and because they insisted on keeping every penny of my $67, they've guaranteed that it's the last one they'll ever see from me.

Edit: Maybe I should explain better why I'm so annoyed. When I drove back east I stayed in a string of Super 8s, but the first one ended up being a big mistake. Starting before 5am the ceiling started creaking under a lot of footfalls. At first I thought they'd stop as soon as the person(s) got done doing what they were doing. But eventually I realized they weren't stopping. (It's also possible that the reason for this was that it was actually people in the stairwell walking, and not someone above me.) After a wasted hour of tossing and turning and failing to get back to sleep, I gave up and fully woke up. At which point I just packed up and left, since there was no point in staying there anymore.

I complained at the desk on my way out, but the manager was out and the clerk wouldn't do anything. I had to call Super 8 to file a complaint. But they didn't do anything either, and referred the matter back to the manager. Who eventually wrote me a letter apologizing, but doing nothing else. Even more irritated by this point I called her back to say this wasn't good enough, and engaged in a battle of wills. Her argument: because I didn't call the desk to complain and give them a chance to fix the problem, it wasn't their fault and I was on my own. My argument: by the time I was awake enough to have the presence of mind to call the desk, I was already irretrievably awake and there would be nothing they could do to fix it. Furthermore, for the rate I was paying, it wasn't too much to expect that I'd be able to get an undisturbed night of sleep. They failed to deliver, however, and I expected some compensation for that - particularly because for a motel, it was pretty expensive.

To the manager, however, my position was unreasonable. (To me, the fact that I was even required to have this argument was unreasonable. They really care so little about customer satisfaction that they're willing to go to the mat on this?) Fortunately Super 8, when I called them back, saw the unreasonableness of the situation and refunded me a reasonable portion of money.

True, this isn't one of my rants about inequitable conduct by companies. I suffered no great injustice because of the hotel. It was just frustrating and amazingly dumb on their part of blow off my concerns. If the manager - or Super 8 itself - had just given me back the $35 from the outset everything would have been fine. It's a small amount to them, but a big amount to me, but their adamant refusal to make the situation right because *I* failed to follow "procedure" was ridiculous. And just wasted my time.

So in the end she won her battle - the manager never gave me any money back - but she lost her war because she also lost her customer. Stupid.

In the BU Law Tower, the 13th floor contains the admissions office, the career development office, and the financial aid office. How to get into law school, how to get out, and how to not starve while there... All these hugely critical departments, and all on the 13th floor.

Not that there's any obvious ominous connections to one's destiny, of course...

My mom spent all yesterday evening and most of today helping me get my wad of clerkship applications out. What an ordeal. (And I'm not even done; there are still some other courts I'd like to apply to, although this was the bulk of them.) Mail merging, printing things out, affixing postage and labels... I wouldn't have been able to get it all done without her help, at least not in the available time.

Unpleasant though the task was, it did conjure up some nostalgia for things like fourth grade school projects, like the one where we stayed up making a model of Tenochtitlan out of construction paper and legos. Turns out those finely honed cutting and pasting skills came in handy...

(There really has to be a better way to do this. And there very well may be: OSCAR, an online system for applying for clerkships. However, not all judges use it. So instead I need to do TWO separate sets of application processes, a mail-based one like the one prepared yesterday and today, and the online one that I haven't had a chance to figure out yet. And these are just federal courts; state courts have their own processes.)

I woke up at 2:45am to leave the house by 3:15 and drive down to New Jersey. That's always a fun way to start the day... I was supposed to leave the night before, but the clerkship applications took most of the day, which left barely enough time for packing. Once I finished that I was pretty much toast, so I decided to take a 4 hour nap before making the drive.

(On the upside, the traffic is great at these odd hours, except for this SUV that followed me from the Mass Pike to the I-91 split in Hartford and insisted on driving 1.5 car lengths behind me, despite there being no one else in any of the other lanes. This car REALLY liked driving right behind me. In fact, when we got to the toll booth, it got behind me in my lane, as opposed to the perfectly good toll lane next to me WITH NO WAIT. Very weird, but unfortunately "weird" is not really want you want to encounter when driving my yourself in the middle of the night...)

Arriving at my dad's in one piece, I parked the car and then walked to the train station, where I caught a train into the city (Manhattan). There I met a friend from middle school (herself a lawyer) for breakfast.

After that I went to Brooklyn to meet blogger Jeremy Blachman for coffee iced tea. It was nice to meet him in person, although I commented how with blogs you sometimes can feel like you "know" a person even before you've met. That's probably a bad thing, because no matter how prolific the blog author, it still won't paint a picture of a person as completely as an immediate acquaintance would. The mistake is to accidentally believe that it has.

But for an otherwise almost complete stranger... we had a lot in common and a good rapport. We talked a lot about blogging, law school, and blogging about law school – and it was nice to talk to someone who understood these things like I do. Normally I'm in "explain" mode, where I'm always telling people what law school's like, why I blog, etc. With him, he already knows, so instead we could compare notes from our experiences. Even though we had very different experiences in law school, and will continue to have very different experiences thereafter, our perspectives on it were, I think, remarkably similar. We both had a similar take on the institution and our participation in it. We participated in different ways, but that we also participated in different ways than many of our peers actually made us have more in common with each other.

Of course, we did have something specific in common from our law school experiences that most of our classmates do not also share: we both had photo shoots! Jeremy had a few, including one for the New York Times, and I had mine for the Corporate Board Member magazine. If you were listening in to our conversation you might think that EVERY law student had a hours-long photo shoot at some point during their law school career, but I think in actuality it's just us...

After meeting Jeremy I then continued deeper into Brooklyn to visit my grandma. After a two-hour nap I had lunch and then was put to work on the latest jigsaw puzzle. I like working on her jigsaw puzzles (although I wasn't crazy about the picture on this one) because I like the way it engages my brain. It gets to rev up in a way that sort of tickles my head, but without stress. I don't even have to finish the puzzle (despite the admonitions of my aunt...) and it's rare that I can use my brain in such an inconsequential way.

In the evening I left and went to Cardozo law school for a reception for my German program. I met a few people I will see again once I'm there. I had to leave before it was over, though, to catch a bus back to New Jersey. And that was pretty much the end of my day. Thank goodness...

I temporarily turned off comments again in preparation for upgrading Moveable Type (the blog software) again. Plus it will be a hectic couple of days and spending hours on deletion of the spams is not what I want to be doing.

But expect the look and feel to change a bit in the forseeable future as I get this all squared away.

I wish I had the money to stop needing to stay in cheap motels. I'm currently staying in another "cheap" motel in Atlantic City, trying to have a relaxing weekend on the beach but failing. My room is overpriced under the best of circumstances, but with a shower that alternates between ice cold and scalding, it most certainly is way more expensive than it should be. (What is with it with me and showers?)

Learning my lesson from the Super8, I did talk to the front desk. They've adjusted my rate slightly, but not nearly as much as circumstances and fairness would call for.

I've thought a lot about my Super8 post since I wrote it, and in some ways self-critically. It is a bit whiny. Of course, lately *I've* been a bit whiny. I've been stretched thin for a long time, and I'm beginning to show signs of fraying. And it isn't quite fair to hold it against these businesses for my condition. On the other hand, given that this is the hospitality business, it's not unreasonable to expect to come away from the relationship feeling good. In a sense that's what you're paying for. But in any case I shouldn't be coming away feeling WORSE than when I started. Yet that's what's been happening a lot lately, when I've been coming away more tired, more stressed, and poorer. I don't think it's because I've got unachievably high standards, however; I think by any objective measure these defects are worthy of concern.

I also wish to restate something I wrote in the Super 8 post. I said that "no great injustice" resulted from my dealings with the motel. But that's not completely true. Yes, it is true that neither life, limb, or significant amount of property was at stake. But like many customer-business relationships, there is an unequal bargaining power manifest in the relationship. The consumer can try to find a good price beforehand, but once he shows up at the establishment to enjoy what he has bargained for, his options immediately become limited. For instance, this weekend's motel told me that if I hadn't liked my room when I checked in I could have refused it. Oh really? And then done what? Been in a far off city with no housing? Been forced to pay even more to get a room somewhere else? It doesn't seem unreasonable to expect that, when agreeing to pay these prices, you can trust the establishment to deliver a room that fulfills even the barest minimum of hospitality standards.

And what do you do when you don't discover the defects until after you've already spent some time there? If it wasn't already too late to leave before I settled in, it certainly was by then. At which point I was over a barrel, because lacking an interest in good customer service as an investment in future business, there's nothing a customer can really do to enforce the implied agreement of value for money. Any leverage the customer might have had in the market has been lost, now that the establishment has won the business. It's therefore only the threat of losing future business that the customer still has to compel performance. But when confronted with recalcitrant or irrational business managers, sometimes that threat carries much less weight then it should.

Backdated due to lack of Internet access. Actually posted 9/2/05.

I landed in Germany yesterday. It was a good trip, apart from the scalding. (Lufthansa in Frankfurt offered complimentary coffee and tea dispensed from some very poorly designed machines. As I was filling my cup the hot water splashed up on me, causing me to drop the cup, and as a result dump a cupful of scalding water all over my hand. That was fun, and gives relevance to the Comparative Tort Law course I will be taking this semester...)

I was met then in Hamburg by my buddy, who didn't bring a sign but was easy to find anyway. He was very helpful, carrying my monstrous bags on a bus and subway and then down the street to my apartment.

The apartment is very nice. It's in an old building that appears to predate WWII. Which is somewhat surprising because Hamburg was so heavily destroyed during the war. It has hardwood floors and raised detail on the ceilings, but it also looks like it was recently redone with a modern kitchen and (very tiny) bathroom (which does have a nice shower!). It's well located and has everything we need except a microwave, which we will buy on Friday, and Internet. The Internet is a problem and we're not sure what to do about it. Purportedly there's wireless at school, but I hate having to go out to use it. I really like having Internet at home and am not sure how I will get by without it. Meanwhile, there's been no Internet at school either (it's currently down) so I've been cut off for quite a few days. I think I'm going through withdrawal...

Due to the aforementioned lack of Internet, this was not posted until 9/2/05.