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ArleneOrtizLeytteFirstPaper 3 - 14 Jun 2012 - Main.ArleneOrtizLeytte
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> | Distraction, Indifference, and Remedies | | | | |
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< | Magic in Action: The Art of Distraction in Law
(In 1.2 semesters...) | | | | |
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> | First year students learn that the end game of any case is the remedy. A whole defense is enumerated under the Federal Rules of Civil Procedure to highlight the importance of importance of a remedy for sustaining a viable case. See Fed. R. Civ. P. 12(b)(6), “failure to state a claim upon which relief can be granted,” and Fed. R. Civ. P. 12(h)(2), allowing the defense to be raised by pleading, motion, or during trial. Law school discussions center on notions of "efficiency," "just how much is enough," and understanding judge and jury. The questions on efficiency and sufficiency are billed as normative proxies for justice. Most professors and students lose faith in the jury system, be it because a random sampling of society cannot come to fair judgments in sophisticated cases or because they “runaway” with exorbitant judgment amounts. | | | | |
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< | After our discussions and readings about the magical and self-referential nature of legal concepts, one of our Wiki discussions finally unveiled what this magic might be all about. Aside from the scary statistics regarding the unhappiness of lawyers, Judge Schiltz's conclusion in Being a Happy, Healthy and Ethical Lawyer made it real: | >
> | In my Civil Procedure class, we read Exxon Shipping v. Baker for its discussion of punitive damages. Exxon Shipping Co. v. Baker, 128 S.Ct. 2605 (2008). In this case, the initial jury judgment was over $5 billion, but after multiple appeals, reaching the United States Supreme Court, damages were limited to a mere $500 million in compensatory damages and $500 million punitive damages. Aside from the extraordinary environmental and ecological damage the Exxon Valdez oil spill caused Prince William Sound, Alaska in 1989, what was sorely lacking in the discussion was a discussion of the initial plaintiffs: the human victims of the spill. Any attempt to discuss whether the Supreme Court’s decision to limit punitive damages to a 1:1 ratio was dismissed, though it was an example of the confluence of the legal fiction dichotomy of law and fact, in what was presented as a question of law. As law students, we did not stop to consider how much each harmed Native Alaskan or fisher would need to survive for a couple years before finding a new livelihood along a different piece of untainted seashore. We did not ask, likely because many of us are so young and lack an understanding of everyday life outside privilege and academia, how much was enough to make a family whole and who would be in the best position to make such a judgment. In my opinion, a set of twelve Alaskan jurors is in a much better position to know what is justice in this case than a law student in Manhattan or Harvard Law Review alumni. Here, I echo Justice Stevens’ final words of his dissent in Scott v. Harris, “In my judgment, jurors in Georgia should be allowed to evaluate the reasonableness of the decision to ram respondent’s speeding vehicle in a manner that created an obvious risk of death and has in fact made him a quadriplegic at the age of 19.” Scott v. Harris, 127 S. Ct. 1769, 1785 (2007). | | | | |
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< | Big Law Magic
My firm was lead counsel for the plaintiffs in the Exxon Valdez oil spill litigation. In 1994, while I was still a partner, we won a judgment of over $ 5 billion. We partners all knew that, if and when we collected that judgment, even the smallest partner's share would be a few hundred thousand dollars. Most of the partners would become millionaires. Because my wife and I would both be partners, we would enjoy two slices of this enormous pie. | >
> | More than twenty years after the 1989 oil spill, in 2011, plaintiffs began receiving payments from Exxon. If you do the long division, and if every one of the 35,000 plaintiff class members shared equally, each would receive at most $30,000--not counting the legal fees. In reality, according to local Alaska news sources (they still care to follow the story), payments range from a few dollars to $50,000. As a matter of civil procedure, would it not have been crucial to know that the end game of a case would arrive over two decades later? Why does the legal academy make me feel like I'm going rogue for asking these functional questions, following the litigation, and researching their real-world effects? Why was it more important to learn about Justice Souter's magical 1:1 ratio for compensatory and punitive damages? And if there was anything redeeming about this decision, it was that if anything, justice was found for Exxon: its corps of innocent employees worldwide and its shareholders. We forgot about the Facts in favor of the meaningless, human-less, Rule. | | | | |
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< | At about the time of the Exxon Valdez verdict, my wife and I were beginning to feel that, somewhere along the line, we had lost our way. We were working constantly. We were under constant pressure. We were constantly feeling guilty about the hardships we were imposing on each other and on our children. The life we were leading was not the life we had envisioned. We had strayed from the values with which we were raised. | >
> | Blaise Pascal's Pensees describes distraction as man's attempt to escape reality. Indifference about those who are to benefit or suffer from the end game, be they plaintiffs or defendants, is the first distraction towards an indifference to justice—and towards an unethical practice of law. This notion is so close to the heart of the law, that the New York Appellate Division Courthouse erected a memorial named “Memorial to Victims of the Injustice of the Holocaust.” Framing a relief of an aerial view of the main camp at Auschwitz is the inscription, “Indifference to Injustice Is the Gate to Hell.” Above and below the aerial view, carved flames recall the flames of the gas chambers at Auschwitz. | | | | |
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< | I confess that I don't know that much about Big Law. From my work as a government paralegal, I knew that their resources seemed limitless. The few firm events I have attended in the past weeks have left me feeling distracted by shiny things: Hermès ties, gorgeous little finger foods, and bottomless wine glasses. The distractions, though, started to look a lot like the seven deadly sins: vanity, gluttony (blame the Catholic education). While these events are billed as ways to "get to know the firms," my take aways are regularly vague notions of what these lawyers actually do with their lives. I can only think of two people who I can actually remember as human beings, not corporate automatons. The events feel like spectacles. While I appreciate a good silk tie, that's just not why I became a lawyer. I leave these events feeling distracted from my reason for being a law student--and I think that's the sorry sentiment Judge Schiltz concludes on in his article. | >
> | I came to law school because I wanted to join a profession that is ultimately about counseling human beings and facing their realities with them, making them whole again. A discussion of remedies or damages is meaningless without a real, down-to-earth and empathetic understanding of the actors in the balance. This is what can and does make lawyers extraordinary: to find their marketplace among the realities of their neighbor. | | | | |
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> | Word Count: 840 | | | | |
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< | Educational Magic
Yet, it was Judge Schiltz's trouble with the distortion of a legal substance that blew the magical cover: remedies. From my 1.2 semesters of law school, I learned remedies to be be the end-game. Discussions were centered on notions of "efficiency" and "just how much is enough"--questions billed as normative proxies for justice.
My Civil Procedure class read the Exxon Shipping v. Baker (2008) for its discussion of punitive damages, the same case Judge Schiltz worked on. In his discussion of the judgment amount (which eventually came down to a mere $500 million compensatory and $500 million punitive damages), sorely lacking is discussion of his clients. He did not stop to ask how much would each of his harmed clients needed to survive for a couple years before finding a new livelihood. Instead, the magic of the principle of remedies and Big Law twisted this essence of advocacy to one question, "Is this case going to make us millionaires?"
More than twenty years after the 1989 oil spill, in 2011, plaintiffs began receiving payments from Exxon. If you do the long division, and if every one of the 35,000 plaintiff class members shared equally, each would receive at most $30,000--not counting the legal fees. In reality, according to local Alaska news sources (they still follow the story), payments range from a few dollars to $50,000.
Why did our class discussion on Exxon deflect the real question of whether these amounts were fair? Why was it not important to even note that these payments would be arriving 22 years later? Why does the legal academy make me feel like I'm going rogue for asking these functional questions, following the litigation, and researching their real-world effects? Why was it more important to learn about Justice Souter's magical 1:1 ratio for compensatory and punitive damages? We forgot about the F in favor of the meaningless, humanless, R.
Breaking the Spell
Magic is the art of distraction. And Blaise Pascal's Pensees describes distraction as man's attempt to escape reality. I came to law school because I wanted to join a profession that is ultimately about counseling human beings by facing their realities with them. I think many of us are here today because we want to help someone no longer be beholden to a system or others. Why then are we the ones beholden first?
I don't pretend to know how to break the spell. I can, though, set one goal for myself: learn to listen better. It is with attentiveness that I can begin to be thoughtful, find the distractions, and get to the core of things again. It's way too early in my career to start losing my way to mere distractions.
(847 words)
-- By ArleneOrtizLeytte - 16 Feb 2012
Whistling a happy tune
will in fact raise your spirits when you're sad, and singing brave
songs will make an army braver. So there is also real personal
advantage in writing a speech of encouragement to focus on what
matters. But the reader should also be benefited, and that requires
the presentation of a new idea to consider, along with implications
the reader can herself or himself learn from exploring. I think your
next draft, having already achieved the majority of the benefit for
you, can begin there, with the reader's needs. Finding the central
idea you are adding to the reader's collection, and which pathways
onward you might want to sketch for the reader's exploration, are the
primary steps to strengthening the piece.
I'm not quite sure what Pat Schiltz is doing in here. I understand
his role in the story of the Exxon Valdez litigation, but it's not
quite right to see him cast as the lawyer who wanted to be the
millionaire, given that he is narrating his own reconversion to the
values of conservative Catholic legal education and a seat on the
Bench. (Which, to be really fair about it, was exactly what Pat
intended to be doing when he was 25, as I well remember. So his
Faegre & Benson identity, from which he begins his elegant narration
of the light that supposedly struck him on his way to Damascus, was
more of a parenthesis in his existence than a life of sin from which
he was suddenly awakened by grace.) But whether Pat discovered his
commitment to meaning nel mezzo del cammin di nostra vita, or just
jumped off the law firm horse at the moment that the jumping was
particularly good, needn't trouble us here, because it seems somehow
immaterial to the course of thought you are really pursuing. Whoever
you are trying to be, it isn't Pat and it isn't not-Pat either.
As you say, it's really about remedies, and the difference between
remedies and corrective justice, or else it's about not being
distracted. If there's a connection between the two ideas, as I
think but am not sure there may be, then that's what it's really
really about.
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> | -- ArleneOrtizLeytte - 14 Jun 2012 |
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ArleneOrtizLeytteFirstPaper 2 - 11 Apr 2012 - Main.IanSullivan
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| META TOPICPARENT | name="FirstPaper" |
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| | | -- By ArleneOrtizLeytte - 16 Feb 2012 | |
>
> | Whistling a happy tune
will in fact raise your spirits when you're sad, and singing brave
songs will make an army braver. So there is also real personal
advantage in writing a speech of encouragement to focus on what
matters. But the reader should also be benefited, and that requires
the presentation of a new idea to consider, along with implications
the reader can herself or himself learn from exploring. I think your
next draft, having already achieved the majority of the benefit for
you, can begin there, with the reader's needs. Finding the central
idea you are adding to the reader's collection, and which pathways
onward you might want to sketch for the reader's exploration, are the
primary steps to strengthening the piece.
I'm not quite sure what Pat Schiltz is doing in here. I understand
his role in the story of the Exxon Valdez litigation, but it's not
quite right to see him cast as the lawyer who wanted to be the
millionaire, given that he is narrating his own reconversion to the
values of conservative Catholic legal education and a seat on the
Bench. (Which, to be really fair about it, was exactly what Pat
intended to be doing when he was 25, as I well remember. So his
Faegre & Benson identity, from which he begins his elegant narration
of the light that supposedly struck him on his way to Damascus, was
more of a parenthesis in his existence than a life of sin from which
he was suddenly awakened by grace.) But whether Pat discovered his
commitment to meaning nel mezzo del cammin di nostra vita, or just
jumped off the law firm horse at the moment that the jumping was
particularly good, needn't trouble us here, because it seems somehow
immaterial to the course of thought you are really pursuing. Whoever
you are trying to be, it isn't Pat and it isn't not-Pat either.
As you say, it's really about remedies, and the difference between
remedies and corrective justice, or else it's about not being
distracted. If there's a connection between the two ideas, as I
think but am not sure there may be, then that's what it's really
really about. | | | | |
<
< |
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ArleneOrtizLeytteFirstPaper 1 - 16 Feb 2012 - Main.ArleneOrtizLeytte
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>
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| META TOPICPARENT | name="FirstPaper" |
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Magic in Action: The Art of Distraction in Law
(In 1.2 semesters...)
After our discussions and readings about the magical and self-referential nature of legal concepts, one of our Wiki discussions finally unveiled what this magic might be all about. Aside from the scary statistics regarding the unhappiness of lawyers, Judge Schiltz's conclusion in Being a Happy, Healthy and Ethical Lawyer made it real:
Big Law Magic
My firm was lead counsel for the plaintiffs in the Exxon Valdez oil spill litigation. In 1994, while I was still a partner, we won a judgment of over $ 5 billion. We partners all knew that, if and when we collected that judgment, even the smallest partner's share would be a few hundred thousand dollars. Most of the partners would become millionaires. Because my wife and I would both be partners, we would enjoy two slices of this enormous pie.
At about the time of the Exxon Valdez verdict, my wife and I were beginning to feel that, somewhere along the line, we had lost our way. We were working constantly. We were under constant pressure. We were constantly feeling guilty about the hardships we were imposing on each other and on our children. The life we were leading was not the life we had envisioned. We had strayed from the values with which we were raised.
I confess that I don't know that much about Big Law. From my work as a government paralegal, I knew that their resources seemed limitless. The few firm events I have attended in the past weeks have left me feeling distracted by shiny things: Hermès ties, gorgeous little finger foods, and bottomless wine glasses. The distractions, though, started to look a lot like the seven deadly sins: vanity, gluttony (blame the Catholic education). While these events are billed as ways to "get to know the firms," my take aways are regularly vague notions of what these lawyers actually do with their lives. I can only think of two people who I can actually remember as human beings, not corporate automatons. The events feel like spectacles. While I appreciate a good silk tie, that's just not why I became a lawyer. I leave these events feeling distracted from my reason for being a law student--and I think that's the sorry sentiment Judge Schiltz concludes on in his article.
Educational Magic
Yet, it was Judge Schiltz's trouble with the distortion of a legal substance that blew the magical cover: remedies. From my 1.2 semesters of law school, I learned remedies to be be the end-game. Discussions were centered on notions of "efficiency" and "just how much is enough"--questions billed as normative proxies for justice.
My Civil Procedure class read the Exxon Shipping v. Baker (2008) for its discussion of punitive damages, the same case Judge Schiltz worked on. In his discussion of the judgment amount (which eventually came down to a mere $500 million compensatory and $500 million punitive damages), sorely lacking is discussion of his clients. He did not stop to ask how much would each of his harmed clients needed to survive for a couple years before finding a new livelihood. Instead, the magic of the principle of remedies and Big Law twisted this essence of advocacy to one question, "Is this case going to make us millionaires?"
More than twenty years after the 1989 oil spill, in 2011, plaintiffs began receiving payments from Exxon. If you do the long division, and if every one of the 35,000 plaintiff class members shared equally, each would receive at most $30,000--not counting the legal fees. In reality, according to local Alaska news sources (they still follow the story), payments range from a few dollars to $50,000.
Why did our class discussion on Exxon deflect the real question of whether these amounts were fair? Why was it not important to even note that these payments would be arriving 22 years later? Why does the legal academy make me feel like I'm going rogue for asking these functional questions, following the litigation, and researching their real-world effects? Why was it more important to learn about Justice Souter's magical 1:1 ratio for compensatory and punitive damages? We forgot about the F in favor of the meaningless, humanless, R.
Breaking the Spell
Magic is the art of distraction. And Blaise Pascal's Pensees describes distraction as man's attempt to escape reality. I came to law school because I wanted to join a profession that is ultimately about counseling human beings by facing their realities with them. I think many of us are here today because we want to help someone no longer be beholden to a system or others. Why then are we the ones beholden first?
I don't pretend to know how to break the spell. I can, though, set one goal for myself: learn to listen better. It is with attentiveness that I can begin to be thoughtful, find the distractions, and get to the core of things again. It's way too early in my career to start losing my way to mere distractions.
(847 words)
-- By ArleneOrtizLeytte - 16 Feb 2012
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines:
Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list. |
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