小北的不老歌

Monthly Archive: March 2007

One Afternoon Off

Beautiful day in Ann Arbor. I sat by my third-floor window overlooking South University, and decided that 1) it was Friday afternoon, 2) it was a beautiful Friday afternoon, and 3) I should not spend the precious daylight hours reading this boring article on this beautiful Friday afternoon. So I gave myself one afternoon off.

Then I went to have coffee with a friend of mine. I don’t remember when the last time I did this was, but sipping coffee in the afternoon sun with absolutely nothing to do other than chatting with a friend and watching people walk by sure felt good.

As it became dark I finally started to feel guilty for being unproductive, so my Friday nightlife consisted of a few pages of securities regulation, a few articles, and some instant noodles.

The Joys and Sorrows of the Articles Office

We lost an article to another law review by 30 minutes today. I knew we were competing against other journals, but never thought the competition would come so close. Another example: a week ago an author emailed us to expedite an article with a 48-hour offer from Georgetown. We mobilized the entire office to read the article quickly and asked the author to request an extension from Georgetown (btw, GLJ articles editor, if you are reading this, you know what happened. :) ). We made an offer before the deadline, only to find out that the author would repeat this process between us and Stanford, requested an extension from us, and eventually got an offer from Stanford.

On the upside, some interesting submissions we’ve come across lately.
– one article spanned 300 pages and had 1000+ footnotes. (the norm is about 50-80 pages and 200 footnotes)
– one author, apparently a new law school grad, sent in with the article a recommendation letter from a professor, who wrote little more than the following line: “time does not permit me to write more, but I think this may be worth publishing.”
– one article was about the use of the word “f*ck,” and examined the history, modern status, legal status, etc., of the word.
– one article was 10 pages long. Stapled with it was the author’s CV, which was about 20 pages long.
– and many, many more that I don’t even remember.

What Good are Grades for

I met a friend of mine in the quad today. I hadn’t seen him almost all semester long so we chatted for a while. He said he was going to the gym and asked what I had been up to lately. I admitted that I might have seemed all but disappeared and that I was busy with journal work and hadn’t been going to the gym at all.

“You see,” I explained, “I found out that I changed so much in the past two years. Before coming to law school I thought I could be one of the few students who wouldn’t care about grades at all. I had worked for a number of years and knew grades wouldn’t matter much once you are out of school; I have a family and know there are things more important than grades. But less than two years into law school I got sucked into this law school rat race: first you need good 1L grades to get a decent summer job, then you need even better grades to make the journal, then you need good 2L grades to apply for clerkships, and to get good clerkships you will need good board positions in the journal — which is what got me so far. Not to say that I don’t like law school — I do — but it’s just that it’s hard to get out of all this…”

My friend shook his head. “It’s not that hard. The way I look at it,” he said, “is this: I needed good grades from high school to get into a good college . . .”

I looked at him, a graduate of one of the elite colleges in the U.S., and winked.

He continued, “then I needed good grades in college to get into a good law school. But after law school, I am all done. I don’t need to show my transcript to anyone else once I get a job. This is my last degree, and I am a 2L, so I am taking it easy.”

I sighed, “maybe I should hang out with you more often.”

Then he headed off to the gym, and I went to the library to pick up yet another pile of articles to read for tonight.

* * *

On the way there, I saw posters announcing the finalists of the moot court. The final is scheduled for tomorrow, and I will certainly go there to see what it is like. Three out of the four finalists are members of the outgoing Law Review ed board–one notes editor, one articles editor, one symposium editor. As if I had totally forgotten about my earlier conversation, I started thinking about signing up for next year’s moot court. Then I realized the irony, and gave up the thought.

US News Ranking

The 2008 US news law school ranking got leaked today. I took a quick look at it, and thought it would sell very well this year.

Main selling points:
Penn tied with Chicago at #6.
UVA and Texas each dropped 2 spots.

Makes you wonder what Penn did right and what Chicago, UVA, and Texas did wrong in the past year. Or, maybe the real question is, what value is left in the U.S. News ranking?

Flashbacks

This week in my jurisdiction class we will read Erie, Hanna, etc. 1L memories came back.

In other news, I am busy as usual between reading papers, editing the article assigned to me, and reading cases. My schedule these days is 9 a.m. to 1 a.m. almost non-stop. I don’t think my 1L year was this packed.

A Second Spring Break

This past week has been like a second spring break for me. My mom, Ping, and Anna all came to Ann Arbor for a visit and stayed for the whole week. Not that I was any less swamped by school and work, but that I got to be with them when I read all those cases and papers.

PICT2168
Get away from me, papa…razzi.

Debate, Reading

After two long hours of intense debate, we ended up rejecting both of the articles that were up for full read today. I really liked both of them… But there was still this sense of fulfillment at the end of the day, feeling that the editors as a group reached a well-informed decision. That’s certainly the best part of this whole thing.

Followed by an hour of intense reading of Conflict of Laws, where now we’ve picked up the issue of choice of law in mass torts. Chief Judge Weinstein’s opinion in In Re “Agent Orange”, 580 F. Supp. 690 (E.D.N.Y. 1984), which was a class action suit with plaintiffs from just about every single state in the U.S. and where the court had to decide which state’s laws applied to which plaintiffs, was particularly illuminating:

Normally we would expect Congress to recognize [the overwhelming need for a uniform approach and a single substantive standard] and provide a federal statute which would be all encompassing . . . Given a failure of the legislature and the executive, the federal courts could be expected to step in by creating federal common law to cover a national problem. But the Second Circuit has blocked that route by denying that federal substantive law controls of its own force. . . . ”

Here’s my take on federalism: its advantage is to place a check on federal power to prevent tyranny (and etc etc), its disadvantage is inconsistency and confusion in interstate interaction as to which law should apply (among other drawbacks). The Framers struck a balance by giving Congress legislative powers in certain enumerated areas and reserving all other powers to the states.

In the early days the advantages of this choice of balancing point outweighed its disadvantages: there was much less interstate interaction; fears for an oppressive national government, ie Britain, were still fresh; and people felt that their primary political association was with the states so states could better protect their interests.

It is not self-evident that the delicate balance struck 200 years ago still exists today. In fact, the converse is true, and disadvantages might very well outweigh the advantages. There is a whole lot more interstate activity going on, sometimes spanning the entire 50 states; fears for an oppressive national government have faded and been replaced by fears for external actors such as the communists during the cold war and the terrorists nowadays; and people’s primary political affiliation today is at the national level rather than at the state level (people think themselves first as Americans then as Michiganders or Floridians).

And the mass torts cases are a perfect example of where the disadvantages are getting out of control.

Intra-Party Democratization

This is certainly encouraging development, but I think the strategy was originally proposed a while ago. I think this is a quite intelligent and prudent way of doing things.

I have actually thought about this quite a bit. Intra-party democratization doesn’t mean much by itself, but it should be viewed together with the recent effort to expand the party’s membership base. When membership to the Communist Party is open to a broad range of citizens (including — gasp — business owners), and at the same time the Party undergoes internal reforms, one could expect that intra-Party democratization is the functional equivalent of a limited overall political democratization and is a laudable step.

This is how I see intra-party elections and other moves to democratization. Currently about 5% of the population are Party members. In practice, membership in the Party generally signals some achievement outside of one’s political life and recognition thereof. Assuming that the demographic composition of the Party reflects that of the general population, the 5% figure could be seen as a very large group of representatives of the people — like a huge “Congress” — that vote on behalf of the general population.

One might criticize this characterization by pointing out that party membership, unlike a seat on the Congress, is not obtained by an election. Rather, one gets to join the Party only if the current members say so. So it is unlikely that the Party members will represent the will of the people, or so the criticism will go.

I think differently. There is really no real sense of class struggle any more. Today there isn’t a clear ideological divide between the majority of party members and the majority of non-party members. Unlike in the U.S. where Democrats and Republicans are sharply divided on issues such as abortion, gun control, executive power and a number of other hot issues, there simply isn’t such an apparent ideological divide in China between party members and non-party members. The interests of Party members and non-Party members are very much aligned on most major issues: continued growth, unification of China, etc. Given that the party members are recruited based on their personal achievements, I don’t see a source of divergence of interest between Party and non-Party. There are still various “factions” within the Party, of course, but those reflect the conflicts among different interest groups that make up the Chinese society at large, and that’s the whole point of intra-party democracy.

So, by enlarging the Party membership on the one hand to make the Party more representative of the interest of the general population, and implementing intra-party democracy on the other hand, I think this is a uniquely Chinese way of carrying out political reforms. The Party should be viewed not as any regular political party in the Western sense, but more as an “electoral college” — it is the Chinese way of appointing/selecting a large number of representatives who can then be expected to vote in a way consistent with the interests of the society at large. In my view, this way of forming the electoral college is no much less unreliable than popular election, which incurs high transaction cost (campaigning) and association cost (voters don’t personally know the candidates, whereas prospective Party members are evaluated on a continuous basis by current members that know him personally). The various factions within this electoral college would then become the equivalent of the political parties in the Western sense.

Of course, the third requirement for this theory to fly, in addition to a wider membership and intra-party democracy, is to have an effective disciplinary procedure to remove these representatives should they fail to live up to the expectation. That, I think, is also in the works.

Supreme Conflict

Constitutional law seems to largely focus on the benefit side of federalism, but I’d be curious to see a comprehensive analysis of the costs associated with letting each state have its own legal system. There simply isn’t a consensus on how to resolve the conflict of laws that exist among the state, and whatever virtues of federalism I learned in Con Law do not seem to match the immense frustration I am encountering now in my Conflict of Laws class.

To me, this whole discussion of the virtues of federalism seems almost hypocritical to some extent. Federalism design, I think, was more of a political compromise and necessity rather than a conscious effort aimed at the benefits later attributed to it by constitutional law scholars. The original 13 colonies were loosely connected to each other economically (certainly not to the extent of today’s economic integration), and even less connected politically. Without a federalism system that guarantees the colonies the continued existence and relevance of their own governments and legal systems, it’s hard to imagine that the United States would ever come into existence. Whatever “laboratories of democracy” and other justifications that were given to this federalist design, I think, is more afterthought than original intent, or even if they were the intention of the framers, were conjured up to make a “choice” they made without any other viable alternative less desparate.

Only if the framers could foresee the state of disarray Choice of Laws doctrines are in today, they probably would have thought twice about letting each state keep their legal system, at least to save the frustration of a few law students.

In other news, my new toys
Thinkpad T60 (to arrive next week)
Dopod Smartphone 710 (another cellphone that the US market doesn’t get to see)