Waking Up In Legal Hell - OLD DRAFT, PLEASE SCROLL BELOW EBEN'S RED COMMENTS FOR FINAL DRAFT

Introduction

Felix S. Cohen begins "Transcendental Nonsense and the Functional Approach" by retelling the tongue-in-cheek fable of a special heaven reserved for legal theorists, originally dreamed up by the German jurist Rudolf von Jhering. In this nirvana, the legal terms that we as first-year law students spent entire classes arguing about, from "good faith" to "minimum contacts," appear in their purest forms, empirically reduced to perfect definitions instead of dissent-inducing terms of art. For a first-year law student, this heaven sounds nothing short of divine. Imagine spending a few hours bouncing around the fluffy clouds, shaking hands with the friendly ghost of Benjamin Cardozo, and adding some rules-based insights about the meaning of "valuable consideration" to your Contracts outline. You might even be able to cancel your Quimbee membership.

Humorously, in the original piece, for the narrator to stay in this special heaven for legal theorists, he must pass an exam. If he fails, he will be expelled to the heaven for "ordinary lawyers." One obstacle within the exam is climbing the "greased pole of difficult legal problems." Imagine this test is failed, or during your time as an attorney on Earth, you earn a place not in Legal Heaven, but in Legal Hell. How would this underworld be organized? Channeling the spirit of Von Jhering's dream, we can imagine Von Jhering's nightmare: Dante's Legal Inferno.

The Circles of Legal Hell

The First Circle: Lawyer Limbo

The vast majority of Columbia students will wake up in this relatively cozy level of Legal Hell. This circle is reserved for all of the lawyers who came to law school with aspirations of working in public interest. Those who came to Columbia with the desire and passion to advance a social justice initiative, like fighting for the environment, but who ended up representing Volkswagen or BP. These lawyers decided LRAP was too risky and their debt was too disquieting. We sought redemption throughout our careers by being active on our firms' Pro Bono committee and billing some percentage of hours to firm-approved pro bono clients, but we didn't listen to our hearts and we ended up here. This slice of Legal Hell takes the form of a perfectly vacuumed office space in a Manhattan Biglaw office. The view is gorgeous, but the residents never get the chance to step outside. On your desk are framed photographs of your smiling family, but you haven't seen your children or spouse in what feels like an eternity. Here, the residents have access to a limitless supply of K-Cup pods, attend fascinating CLE seminars, and even get to enjoy business-casual-Fridays. There's an annual holiday party to look forward to and the firm will compensate you for a standing desk to relieve that chronic back pain from sitting all day. Unfortunately, the annual billable minimum is 8,000 hours, which leaves about 2 hours per night to eat dinner and sleep at your desk. The partnership prospects and exit opportunities seem increasingly opaque, but at least it's a Vault top 10 ranked firm.

The Second Circle: Gluttony, Greed, and Lust

This circle is reserved for those who were never able to figure out how much was "enough." In class, we contemplated how being a lawyer breeds people who are prone to addiction. It may come in the form of an unquenchable compulsion for work, sex, or psychoactive substances like money or cocaine. In "All Great Things Come from the Streets," Judge Day, herself a poetic amalgam, gives us the chance to meet the embodiment of the phenotypical male lawyer. He works at the fictional firm of "Crane & Swartout" and at 10:45am, with his greased back hair and expensive clothing, he strategically repositions himself on a subway car so he can stare at the breasts of a young woman across the car. This phenotype and his sleazy comrades, who spent their lives never figuring out what was "enough" end up in this circle, where all of the women on the Subway are armed with pepperspray and the Duane Reades have run out of hair gel.

The Third Circle: Anger

A career as a lawyer is inherently adversarial. In Robinson's Metamorphosis, we met the Assistant US Attorney for SDNY. This federal prosecutor catches a young man attempting to burglarize his home, and only holds back from shooting him due to the bad optics for his career ambitions. Instead, he smashes the intruder's head "several times against the wall," ripping out clumps of hair in the process. He hopes to kill the intruder through the criminal justice system, instead. The most fitting formulation for this ring of hell can be directly borrowed from Robinson's own idea: the metamorphosis. In a glorification of restorative justice, here, lawyers like the aforementioned AUSA wake up as the people they put behind bars. Attorneys would find themselves on death row in a correctional facility in Alabama for a crime they swear they did not commit, or in San Quinten State Prison serving a mandatory minimum sentence for violating a three-strike law. Some might call this cruel and unusual punishment, but unfortunately for the citizens that call this circle home, the Bill of Rights has no jurisdiction.

The Final Circle: Treachery

The deepest circle of Legal Hell is reserved for those that used their legal minds and careers to advance values that go against the public interest. Those that fight commonsense reform and progress. Residing here would be the attorneys that fought tooth and nail for "separate but equal" in Plessy, for continued school segregation in Brown, and for the internment of Japanese Americans in Korematsu. This circle is home to our politicians who were converted into puppets for entrenched private interests like the National Rifle Association and the attorneys who helped draft Non-Disclosure Agreements to silence victims of sexual harassment. What would it be like to live in this place? Tragically, the twist: we may already be living in this hell.

This draft is very clever. It is often humorous, occasionally witty, well-designed and effectively executed.

But both Dante and Larry Joseph are poets. Their subjects are spaces people inhabit. Their ways of living and the meaning they give to them are contrasted with one another, and with external moral judgments. And yet, beyond the judgment there is always human recognition: Siete voi qui, ser Brunetto?

I wonder whether all the literary mechanism is actually interfering with that sensibility here; we are at the last sentence before that recognition—that we are all here, lawyers and therefore never far from the temptations of power or ability without moral responsibility, sheltered behind clients, behind obligations, yet hoping and trying to do something larger, that we can justly regard as a contribution to justice—meets us. A draft that abandoned all the cute parts, that took the premise straight and went directly to the question the present draft raises only at the very last, might be too much to ask of you. But retaining the part of this which is play should at least allow, not as an apparent accident, but inherent in the design, the serious issue that makes the play worthwhile.

Waking Up In Legal Hell

-- First Paper, Final Draft for Law in Contemporary Society By MilesGreene - 25 Feb 2018

Introduction

Felix S. Cohen begins "Transcendental Nonsense and the Functional Approach" by retelling the tongue-in-cheek fable of a heaven reserved for legal theorists, originally dreamed up by the German jurist Rudolf von Jhering. In this nirvana, the legal terms that we as first-year law students spent a year arguing about, from "good faith" to "minimum contacts," appear in their purest forms, empirically reduced to perfect definitions instead of dissent-inducing terms of art. For a first-year law student, this heaven is nothing short of divine. Imagine spending a few hours bouncing around the fluffy clouds, shaking hands with the friendly ghost of Oliver Wendell Holmes Jr., and adding some clarifying insights about the Rule Against Perpetuities to your Property outline. You might even be able to cancel your Quimbee membership. Humorously, in the original piece, for the narrator to stay in this special heaven for legal theorists, he must pass an exam. If he fails, he will be expelled to the heaven for "ordinary lawyers." One obstacle within the exam is climbing the "greased pole of difficult legal problems." Imagine this test is failed, or during your time as an attorney on Earth, you earn a place not in Legal Heaven, but in Legal Hell. How would this underworld be organized? Channeling the spirit of Von Jhering's dream, we can imagine Von Jhering's nightmare: Dante's Legal Inferno.

The Circles of Legal Hell

The First Circle: Lawyer Limbo

The vast majority of CLS students will wake up in this relatively cozy level of Legal Hell. This circle is reserved for all of the lawyers who came to law school with the passion to advance a social justice initiative, like fighting for the environment, but who ended up representing BP. These lawyers decided LRAP was too risky and their debt was too disquieting. They started by justifying their decision by promising only to trade about five years of their careers to pay off loans, but five years turned into 40. Their thirst to do well by doing good was quenched instead by doing well by their wallet. We were never able to figure out how much was "enough" and were overcome by addictions to the psychoactive substances of our choice. We may have sought redemption throughout our careers by billing hours to firm-approved pro bono clients, but we blissfully ignored our original purposes.

This slice of Legal Hell takes the form of an immaculately vacuumed office space in a Manhattan Biglaw firm. The views are breathtaking, but you never get the chance to step outside. On your desk are photographs of your smiling family, but you haven't seen your children or spouse in what feels like an eternity. Here, the residents have access to a limitless supply of K-Cup pods, gourmet doughnuts on birthdays, informative CLE seminars, and even get to enjoy business-casual-Fridays. The firm will cover your dinner when you stay past 8PM and will provide a standing desk to relieve that chronic back pain from sitting all day. Unfortunately, the annual billable minimum is 8,000 hours, leaving about 120 minutes per night to scarf down a meal and sleep at your desk. The partnership prospects and exit opportunities seem increasingly opaque, but at least it's a Vault top 50 ranked firm.

The Next Circle: Anger

A career as a lawyer is inherently adversarial. In 'Robinson's Metamorphosis,' we met the AUSA for SDNY. This federal prosecutor catches a young man burglarizing his home, and only holds back from shooting him due to the potentially bad optics for his career. He smashes the intruder's head against the wall, ripping out clumps of hair in the process, but ultimately decides he wants to kill him through the criminal justice system. The most fitting formulation for this ring of hell can be directly borrowed from Robinson's own imagination: the metamorphosis. In a glorification of restorative justice, lawyers here, like the aforementioned AUSA, wake up as the people they put behind bars. Attorneys would find themselves on death row in Alabama for a crime they swear they did not commit, or in San Quinten serving a mandatory minimum sentence for violating a three-strike law. Some might call this cruel and unusual punishment, but regrettably for the lawyers that call this circle home, the Bill of Rights has no power.

The Final Circle: Treachery

The deepest circle of Legal Hell is reserved for those that used their legal minds and careers to advance values that go against the public interest. Those that fight commonsense reform and progress. Residing here would be the attorneys that fought tooth and nail for "separate but equal" in Plessy, for continued school segregation in Brown, and for the internment of Japanese Americans in Korematsu. This circle is home to politicians who were converted into puppets for entrenched private interests like the NRA and the attorneys who helped draft Non-Disclosure Agreements to silence victims of sexual harassment. Attorneys like Michael Cohen, John Bolton, and Rudy Giuliani live here. They have assumed positions of power and prominence over this society, reducing the nation's faith in democracy and advancing their agenda with vitriolic fear tactics. Their hawkish worldview extinguishes treaties, pulls out of climate deals, defunds diplomatic efforts, escalates wars, and promotes hatred within our national discourse.

What would it be like to live in this place? Tragically, the answer may be that we know all too well. We may already be living in this hell. Like Dante, we have found ourselves "within a forest dark, for the straightforward pathway had been lost." But it is essential to remember that although the sign at the entrance of hell may ask all who enter to abandon all hope, the solution begins by recognizing that this reality is changeable and a way out is possible. We can emerge from this chapter of our history, as Dante emerges in the Divine Comedy, to "rebehold the stars." By descending into this hell and witnessing its evil, we have the potential to reignite and reawaken our Earthly fight for good.

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