flagrant

This isn’t a discussion of extra time testing accommodations in junior year (which would be contentious enough), but in law school.  The concern Sam is discussing is the necessity/fairness aspect from the perspective of other students and faculty.  My concern is completely different. 

I’m pretty sensitive to the needs of those with intellectual challenges, and the right (and societal necessity) of providing them with an education.  I’m strongly in favor of accommodating disability in order to obtain that education.  But when it comes to being a lawyer, the desirability of providing accommodations is trumped by the ability to fully, competently and ethically serve clients.

Uh oh. Where’s the empathy?  It’s there. It just favors clients over disabled wannabe lawyers.

Sam discusses that one of the pedagogical purposes of timed exams is to test processing speed, the ability of a law student to promptly identify issues and arrive at a viable analysis.  There is a damn good reason for this, as much of what we do demands that we are not only capable of coming up with the right answer, but doing it when it counts.  An objection a day late helps no one.

No, speed isn’t the only quality a lawyer needs, but it remains one of them.  As lawyers are licensed as generalists, capable of being trial lawyer as well as pedantic advisor by virtue of our ticket, we lack the right to put people into the position of lawyer who are inherently incapable of fulfilling a requirement of the job.  It’s not that we don’t feel badly for those who truly want to be lawyers but, as a result of a learning disability, can’t perform, but that our professional responsibility is to put clients ahead of self-interest, and that includes the intellectually challenged.

There are a host of arguments (or questions) that make my somewhat simplistic presentation more difficult.  Yes, there are things that lawyers do which don’t require speedy processing, but as long as a lawyer is just as entitled to try a case as write a contract, he must be capable of doing both.  There is no right to be a lawyer. There is a right of a client to expect his lawyer to be competent.

What of physical disabilities? They are somewhat different when they’re flagrant (so the client can see and decide for himself whether to use that lawyer to represent him), but what about hidden physical disabilities? That’s a tough one to address generically, but the basic rule should apply, that if a law student isn’t capable, physically or intellectually, of performing all the functions of a lawyer, then he shouldn’t be a lawyer, which means it shouldn’t be accommodated.

Reaction to my position in the comments to Sam’s post went from political correctness to disturbing when it was argued that attending law school and, ultimately, becoming a lawyer, should be considered an entitlement for the disabled. 

Apparently, the commenter, Melissa, has a very different definition of talented, which includes law students too disabled to practice law.  That this may be the view of a student, particularly an intellectually challenged student, is understandable.  That this doesn’t seem problematic to lawprofs leaves me to wonder how many people are walking around as lawyers who required double time on exams because they were too slow in processing to take a test without accommodations?

And I wonder why young lawyers claim experience they don’t possess, or omit salient details from their resume like their year of admission or graduation.

There’s an argument to be made that lawyers who lack the capacity to perform in the courtroom because of some inherent disability that required accommodation should still be allowed to be lawyers, provided they limit their services to those things they can do despite their limitations. Of course, if the lawyer is slow and bills hourly, another issue is raised, but that can be accommodated as well.

But how do you stop the slow lawyer from walking into court?  How does the client know that his lawyer is too slow to do the job?  And how can we even begin to take the argument seriously when the reaction to putting the client first is “how are his clients being deceived” when the slow lawyer conceals material facts from his client?

I didn’t think I would ever do this, but here I am: There should be a law against this.  The law should prohibit anyone from espousing something in public to large audiences that makes them inherently stupider.  The law should prohibit people from offering an opinion on a subject about which they are clueless. The law should punish the murder of brain cells. 

Richard Cohen, j’accuse.

Compared to the relatively benign column, the NPR broadcast made my eyes well up with tears, my ears ring and my fingers twitch.  After the typical humblebrag beginnings of “I don’t know nothin’ about birthin’ no babies,” Cohen goes on the get most of the facts wrong and yet elevate ignorance to new heights.  His opinion, baseless as he falsely admitted, was nonetheless worthy of assertion under the last refuge of the ignorant, common sense.

It’s a trade-off, Cohen informs, between all the people who aren’t dead today because of the stop and frisk policy, and all the people who suffered the stop and frisk.  Cohen readily concedes that he’s not likely to be subject to it, and wouldn’t like it much if he was, but since it saved lives, proven by the absence of dead bodies littering the streets of Manhattan, it’s something we can’t dismiss.

Maybe Cohen was sick that day in third grade when the teacher, Mrs. Crabtree, mentioned it. That happens, but it’s a good reason not to write about it. The “it” is the Constitution.  The “it” is the foundation of our government.  The “it” is not subject to individual approval or “common sense” revisionism.  In other words, columnists for the Washington Post who go on radio to talk about crap they know nothing about do not get to opine that the application of the Constitution to the government is subject to either their approval or their imaginings of common sense.

Of course order and security would be enhanced if the people had no rights and the government was all powerful. This isn’t exactly higher order thinking.  But Cohen, when that bunch of dry good merchants decided to form a better union, they made some choices to guide how that government would function going forward.  No one told you?  Sorry, but it’s all over the internet. 

The United States Constitution, Fourth Amendment, establishes a value judgment upon which this nation was formed.  It provides that police cannot stop and frisk people at will. Done deal. This is not subject to either popular approval or your severely limited grasp and equivocation.

Yes, the stop and frisk program is more effective than adherence to the Constitution at preventing crime. So too would be anal cavity searches at will. Summary executions would also work pretty darned well. There is a laundry list of things the police could do that would have an impact, to at least some degree, on crime.

And yet the Constitution says they can’t.

It sucks? It’s not your cup of tea, Cohen?  There’s always Singapore. I hear it’s lovely this time of year.  They have no Fourth Amendment prohibiting the government from flexing its muscles at will to prevent the potential of crime by allowing people to be free from baseless searches.  Sure, apartments are hard to find, but isn’t it worth it to feel safe?

What strikes me as incredible is that the newspaper that broke Watergate would give space to a column that makes people stupider.  And if that’s not bad enough, the NPR puts Richard Cohen on air in the apparent hope that its funding won’t be cut. 

Prefer safety over rights all you want, and point out the 5600 people alive today but for the flagrant violation of civil rights.  There are many people who agree, despite the fact that it’s based on an imaginary argument.  But to suggest that this is an open question, a toss-up for fans of security to decide, rather than a facial violation of our Constitution is just fundamentally ignorant.  If you want to be a pundit, you don’t get to be ignorant, and you don’t get to make other people ignorant.