Why People Have to Make Their Own Mistakes

Found in an Economist article on how a central bank can (or cannot) stop a bank run:

"the ultimate result of shielding man from the effects of folly is to people the world with fools."

- Herbert Spencer, State Tampering with Money and Banks

Being a Happy, Healthy, Ethical Lawyer

Orin Kerr posted a question on the Volokh Conspiracy from a not yet employed 3L looking for career advice. There are good suggestions in the comments, but the best one is from "Anonobvious," who linked to Patrick J. Schiltz's law review article, "On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession."*

It was written in the late 90s, so the numbers are a little off (though that amplifies the points made), but the reasoning is simple: Big law firms are driven by money. Money does not make one happy. People driven by pressure to make money are more likely to behave unethically. If you want to be happy and ethical, stay away from big law firms.

On why big firm lawyers don't give up a little extra money for a lot more happiness:

More importantly, though, the flaw in my analysis is that it assumes that the reason lawyers push themselves to make so much money is the money itself. In other words, my analysis assumes that the reason lawyers want to earn more money is that they want to spend more money and enjoy the things that money will buy. When put in those terms, giving up 600 hours of life for another $40,000 on top of a $160,000 salary makes no sense for most lawyers. What you need to understand, though, is that very few lawyers are working extraordinarily long hours because they need the money. They are doing it for a different reason.
Big firm lawyers are, on the whole, a remarkably insecure and competitive group of people. Many of them have spent almost their entire lives competing to win games that other people have set up for them. First they competed to get into a prestigious college. Then they competed for college grades. Then they competed for LSAT scores. Then they competed to get into a prestigious law school. Then they competed for law school grades. Then they competed to make the law review. Then they competed for clerkships.229 Then they competed to get hired by a big law firm.230 Now that they’re in a big law firm, what’s going to happen?
Are they going to stop competing? Are they going to stop comparing themselves to others? Of course not. They’re going to keep competing — competing to bill more hours, to attract more clients, to win more cases, to do more deals. They’re playing a game. And money is how the score is kept in that game.

On the difference between "legal ethics" and what people generally think of as ethical:

As a law student, and then as a young lawyer, you will often be encouraged to distinguish ethical from unethical conduct solely by reference to the formal rules. Most likely, you will devote the majority of the time in your professional responsibility class to studying the rules, and you will, of course, learn the rules cold so that you can pass the Multi-State Professional Responsibility Exam (“MPRE”). In many other ways, subtle and blatant, you will be encouraged
to think that conduct that does not violate the rules is “ethical,” while conduct that does violate the rules is “unethical.”
It is in the interests of your professors, the organized bar, and other lawyers to get you to think about ethics in this way. It is a lot easier for a professor to teach students what rules say than it is to explore with students what it means to behave ethically.

On how the Stoics have it right about how to truly find happiness:

This is the best advice I can give you: Right now, while you are
still in law school, make the commitment—not just in your head, but in your heart—that, although you are willing to work hard and you would like to make a comfortable living, you are not going to let money dominate your life to the exclusion of all else. And don’t just structure your life around this negative; embrace a positive. Believe in something—care about something—so that when the culture of greed presses in on you from all sides, there will be something inside of you pushing back. Make the decision now that you will be the one who defines success for you—not your classmates, not big law firms, not clients of big law firms, not the National Law Journal. You will be a happier, healthier, and more ethical attorney as a result. ... (“[T]here may be no way to permanently increase the total of one’s pleasure except by getting off the hedonic treadmill entirely. This is of course the historic teaching of the Stoic and Epicurean philosophers, Buddha, Jesus, Thoreau, and other men of wisdom from all ages.”) (quoting Philip Brickman & Donald T. Campbell, Hedonic Relativism and Planning the Good Society, in ADAPTATION-LEVEL THEORY: A SYMPOSIUM 287, 300 (M.H. Appley ed., 1971).

Please, if you are a law student or a lawyer, read this article. It may be some of the most valuable time spent in your career.


* - 52 Vanderbilt Law Review 871.

Muckraking of the First Order

Radley Balko has a shocking account of how Steven Hayne cornered the autopsy market in Mississippi. During his years, he's testified that a skeletonized woman was strangled (even though there was no muscle tissue to make that determination), testified that two people's hands were on a gun from the bullet wound, and performed 1,800 autopsies per year (the National Association of Medical Examiners (NAME) says a single medical examiner should perform no more than 250 autopsies per year and will not accredit a practice with more than 325 annually).

Even worse, there's a man on death row because of his testimony.

Consider Jeffrey Havard, convicted in 2002 of killing his then-girlfriend’s six-month-old daughter. Havard claims he was bathing the child when she slipped from his hands and hit her head on the toilet. But Hayne testified at Havard’s trial that bruises, scratches, and cranial bleeding indicated a case of shaken baby syndrome. Hayne also testified that the child’s anus was dilated, indicating sexual abuse. The DNA evidence was inconclusive: Havard’s DNA was not found on the baby, but both his DNA and hers were found on a sheet from the bed where she had gone to sleep that night, which was also the bed Havard shared with his girlfriend.

Because there were no witnesses to the incident, the evidence of sexual abuse was key to securing Havard’s conviction and death sentence; the charge was “murder in the commission of sexual battery.” Havard, who had no money, was assigned a public defender. His lawyer was suspicious of Hayne’s conclusions and at trial asked the court for funds to hire an independent pathologist to review Hayne’s findings. The judge refused, ruling that Hayne, the prosecution’s witness, was qualified and sufficient.

After Havard was convicted, attorneys from Mississippi’s post-conviction relief office, which represents indigent defendants in their appeals, were able to get James Lauridson, Alabama’s former state medical examiner, to review Hayne’s work in the Havard case. According to an affidavit he filed with the Mississippi Supreme Court in 2004, Lauridson found significant problems with Hayne’s testimony. Most notably, factors not related to abuse—e.g., rigor mortis—can often cause the anus to dilate after death.

In February 2006 the Mississippi State Supreme Court nevertheless upheld Havard’s conviction. It refused even to consider Lauridson’s review of Hayne’s work, ruling that any expert testimony refuting Hayne’s conclusions had to have been introduced at trial. Havard’s attorney had tried to do that, of course, but the trial judge denied him the necessary money.

This is why being a public defender is such an important job. The PD is the only person who has the opportunity to stop a wrongful conviction before it happens.

Poker Stars Blogger Tournament - October 14

I have registered to play in the PokerStars World Blogger Championship of Online Poker!

This Online Poker Tournament is a No Limit Texas Holdem event exclusive to Bloggers.

Registration code: 7483439

UPDATE: I finished 1046th out of 1337 players with this hand:

PokerStars Game #12625899736: Tournament #63028692, Freeroll Hold'em No Limit - Level IV (150/300) - 2007/10/14 - 15:50:16 (ET)
Table '63028692 113' 9-max Seat #4 is the button
Seat 1: MarnieT (16175 in chips)
Seat 2: CarlosMuch (12350 in chips)
Seat 3: CK Pony (5625 in chips)
Seat 4: HappyStoic (7700 in chips)
Seat 5: confieri (26375 in chips)
Seat 6: L'ildeveau (5950 in chips)
Seat 7: G.Petro (5500 in chips)
Seat 8: x68000onfire (10675 in chips)
Seat 9: nskylinezz (15075 in chips)
confieri: posts small blind 150
L'ildeveau: posts big blind 300
*** HOLE CARDS ***
Dealt to HappyStoic [Jh Ah]
G.Petro: calls 300
x68000onfire: folds
nskylinezz: raises 900 to 1200
MarnieT: folds
CarlosMuch: folds
CK Pony: folds
HappyStoic: calls 1200
confieri: folds
L'ildeveau: folds
G.Petro: folds
*** FLOP *** [Ad 5s 3s]
nskylinezz: bets 1800
HappyStoic: raises 4700 to 6500 and is all-in
nskylinezz: calls 4700
*** TURN *** [Ad 5s 3s] [As]
*** RIVER *** [Ad 5s 3s As] [2d]
*** SHOW DOWN ***
nskylinezz: shows [Ac Qc] (three of a kind, Aces)
HappyStoic: shows [Jh Ah] (three of a kind, Aces - lower kicker)
nskylinezz collected 16150 from pot
*** SUMMARY ***
Total pot 16150 | Rake 0
Board [Ad 5s 3s As 2d]
Seat 1: MarnieT folded before Flop (didn't bet)
Seat 2: CarlosMuch folded before Flop (didn't bet)
Seat 3: CK Pony folded before Flop (didn't bet)
Seat 4: HappyStoic (button) showed [Jh Ah] and lost with three of a kind, Aces
Seat 5: confieri (small blind) folded before Flop
Seat 6: L'ildeveau (big blind) folded before Flop
Seat 7: G.Petro folded before Flop
Seat 8: x68000onfire folded before Flop (didn't bet)
Seat 9: nskylinezz showed [Ac Qc] and won (16150) with three of a kind, Aces