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A Completely Non-Law-Related Book Review

  Herzog by Saul Bellow

My rating: 5 of 5 stars


I didn't realize it until about twenty pages from the end of the book, but Moses Herzog is one of the most endearing characters I have ever encountered in a novel. He probably shouldn't be. He's washed up, broken down, and quite possibly a little bit crazy, and spends a great deal of time mentally composing letters full of obscure philosophical references, addressing them variously to former colleagues, past lovers, or the dead philosophers themselves. All the while he is anguishing over the destruction of his second marriage, the distance between himself and his two children, the woman who may actually love him despite everything. As the wreckage of his actual life is slowly revealed, the pointlessness of the letters, even were they actually written down and sent, becomes increasingly, painfully apparent.

But then, somehow, that changes. Herzog's letters begin to seem more relevant, more significant, even with their persistent indecipherable academic jargon. Their abstract seriousness begins to seem like a front, a shield, and one that Herzog himself seems to see as increasingly flimsy and, more importantly, superfluous. As he divests himself of scholarly baggage, the meaningful parts of his life begin to reveal themselves, and suddenly, imperceptibly, Herzog the human being comes to light. (The unresolved question for me here is, did the letters themselves change, or did I change, and gradually come to recognize the truth hidden within them all along?)

For a considerable portion of this book, I admit I skimmed a lot of the letters, stuffed as they were with their hyperacademic maundering, thinking, as long as I got the gist, there was no need to bog myself down with the details. But when the book ended, so soon after I finally realized how fond of this shambling academic I had become, I began to regret my casual attitude. In a scaled down version of what we so often feel at the passing of a loved one, I wished I had paid better attention, had listened more carefully to what this earnest soul was trying to say before he was gone. He deserved that much. But now it was too late.

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Oh, hi. Nice to see you again.

OK, so, it's been a while. I haven't checked, but I'd guess I last posted here about three or four months ago, "promising" to blog throughout the summer. Fortunately, if you've been following this blog at all, you didn't expect me to keep that promise anyway. In any case, let's just be up front about this: I am writing now mainly because it seems like I probably should. I have no subject, no theme; I'm just gonna write about stuff and post it so I don't start wondering why I even have a blog in the first place and delete it. 

"I'm Comic Sans, Asshole."

One Year Down

Well, that's that, then. One week ago, I clicked "Submit" and sent my feverishly composed Criminal Law final into the ether, officially and unceremoniously ending my life as a 1L. I then proceeded directly home to drink wine and watch Mystery Science Theater with my wife, and I've sort of been slacking off ever since. It's not bad.

Overdue Progress Report

Did I say "biweekly"? Apparently, I meant "bimonthly."

The Spring semester is now virtually over, with only 2.5 weeks remaining before the reading period, and all I can think to say is, boy, it's nothing like last semester at this time, at least as far as I can recall. I'm not sure how to characterize the difference generally. Maybe it's just that I feel like I've been a bit less . . . diligent? I don't know. I do know that just today I started seriously trying to outline my courses, which I know I put off last semester, too, but I don't think I waited quite this long. And for one of my courses -- Contracts -- I'm really hoping the outlining process will be what makes it all come together, because right now, I feel like I just know a bunch of random tidbits with only the most tenuous of connections between them. I certainly do not feel remotely prepared to be tested on any of it. So yeah, I'm hoping the next few weeks are very productive.

Here We Go Again

OK, so, we're back. The spring semester started about three weeks ago, after a nice, long winter break, and I thought probably it's about time I catch everyone up.

So first of all: I passed my fall classes. I don't think anyone but me had any doubt this would happen, but it's a relief.

As for the spring, Torts and Civil Procedure have been replaced by Contracts and Criminal Law. (That Lawyering Process class is two semesters long, so it's still going.) I hope to do some summary posts for both courses soon, but here are my basic impressions to date:

The End of the Beginning

So that's that. Three days ago, I took my second and last final of the semester, and with no further ado, it's over. Four months of intensive reading, briefing, fretting, outlining, memo-writing, stressing, and of course, occasional blogging, and suddenly . . . nothing. I'm really not sure I've fully absorbed the idea that, for an entire month, I don't need to think about the law at all (as evidenced by a general dazed lack of focus, and by the fact that I continue to have anxious dreams about civil procedure). Just what am I supposed to do with myself for the next four weeks? OK, there's the holiday season, and there's that long list of neglected household tasks I've been compiling all semester, and there are still two kids to take care of and a wife to hang out with, somewhere around here, but still: shouldn't I be puzzling over some turn-of-the-century judge's convoluted prose, or trying to edit five pages out of a memo, or convincing myself I'm not going to flunk out of law school? Well, maybe I can still do that last one over the break, but the rest of it? All gone. The first semester of law school is over. So now what?

I'd like to offer some sort of grand, retrospective, insightful synthesis of it all, but I don't think I have the energy. Or maybe it's the desire. Or maybe on some level I know there's just not that much to be said. Yes, it was difficult, as everybody says, and no, I was not prepared for its demands, either intellectual or emotional. But I'd like to think I met those demands, however haphazardly, and that I came through all right in the end. Perhaps the greatest measure of this is that I am OK with waiting six weeks to get my final grades, and I'm not really concerned about whether or not I passed -- the hyperbole of my first paragraph notwithstanding. I doubt I've reached the level of nonchalance exhibited by the character in The Paper Chase, who felt no need even to look at his grades when they arrived in the mail, and instead cast them into the sea (nor will this likely be an option, as I don't imagine they'll be sending them by the post), but I have no doubt I'll be allowed to return in the spring. I may yet find a good sized puddle to throw my torts book into, but that would be more like an act of vengeance than of emancipation.

Anyway, here I am, on the other side. I really do think next semester will go much more smoothly, going into it as I am with some awareness of such basic things as how to take notes, how to read the cases, how to study, and how to prepare for finals. All of that really would have come in handy these past few months. But c'est la vie. It's over and done. Time to hang out with the family and enjoy four weeks of normality. Because let's face it: those advance assignments for the spring will be arriving before I know it.

One Last Dispatch Before the Siege

I thought I'd take a brief moment, while the baby is asleep and I probably should either be doing dishes or studying, to catch everyone up. As you may already know, classes have ended. I am now in the midst of "Reading Days," during which I am supposed to study virtually nonstop in preparation for my finals, which take place next week, on Tuesday and Friday. I haven't studied non-stop, but I have done at least a few hours every day, and I'm feeling pretty good about where I am at the moment. I'll certainly do a final post once it's all over, but meanwhile, here's an overview of my final weeks of class:

Torts

Having completed the causation discussion, we proceeded to damages, which is shorthand for "How many ways can you get money out of a person?" I learned that there are nominal damages (tiny, symbolic awards for when no real damage was done), compensatory damages (monetary reimbursement for medical bills, lost income, pain & suffering, etc.), and punitive damages (awards meant not to compensate the victim, but to punish the wrongdoer, in cases involving recklessness or intentional harm). Only compensatory damages are typically available in negligence claims, so that's mainly what we talked about. Unsurprisingly, there are many, many ways to get money out of someone and call it "compensation." The pain-and-suffering stuff is the most interesting, and includes things like "loss of enjoyment" damages, where the court decides just how much I was enjoying my life anyway in order to decide how much I should be paid for not being able to do so anymore; "wrongful death" actions brought by legal beneficiaries for economic losses they've suffered due to the victim's death; and my favorite, "survival actions," where, among other things, if I die in a plane crash, and was aware that I was going to die, my "estate" can sue the airline on my behalf, not only for my death, but for the emotional distress I suffered from my "foreknowledge of doom." One example we read is just too ridiculous not to recount: A plane crashed when its left wing became detached from the plane. Attorneys argued, successfully, that the people on the left side of the plane would have seen the wing becoming detached, and therefore would have had advance warning of the crash, leading to a longer period of emotional distress for them than for the people on the right side. So what happened? The families of the passengers on the left side got more money than the families of the people on the right. Unfair? Maybe even psychotic? You didn't hear it from me.

We then talked about some defenses a defendant might assert, mainly contributory negligence (i.e., sure I was negligent, but so were you, so you should share some of the responsibility) and assumption of the risk (i.e., sure I was negligent, but if you didn't want to get hurt, you shouldn't have gone skiing in the first place). And finally, we actually left the subject of negligence to cover, very briefly, the intentional torts of assault and battery (two separate things in civil claims, though they're often brought together). The most interesting things from this discussion were (1) "intent" has nothing to do with "motive." If I voluntarily do something that is "substantially certain" to cause you harm, I "intended" to harm you in the eyes of the law. (2) "Assault" just means making someone "apprehend" that you might come into "harmful or offensive contact" with them. If I approach you menacingly, you can sue me for assault, even if I never touch you. And (3), "battery" includes not only hitting someone, but also touching them "offensively" (e.g., giving them an unwanted kiss), or even hitting something they're holding, or the car they're sitting in (as these are considered "extensions of the person"). Bottom line? Be careful out there, folks. You could be assaulting someone and you don't even know it.

Civil Procedure

OK, I'm gong to seriously gloss this one over, because if I don't, no one will ever read this blog again. What we've covered since late October in this class encompasses so much mind-numbing detail and interrelated rules and procedures I can hardly believe I've come to a point where it all makes some kind of sense. But the things is, it does, which I can only attribute to the indefatigable efforts of our professor. She was truly amazing.

So here's the not-even-remotely-in-depth version: In our final four weeks, we studied pleadings and motions, how to join parties and claims together, the "Erie Doctrine" (when to apply state law in federal court), what the ethical expectations are for lawyers concerning what they present to the court, the basics of "discovery" (the process by which the parties in a suit get information from each other before the trial), summary judgment (what happens when one party asks the judge to decide the case before trial, on the basis of what's been revealed in discovery), and "preclusion" (under what circumstances a particular claim or issue is precluded from being tried, because it was -- or should have been -- tried in a previous case). I think that's it. If it sounds like a lot, believe me, it feels like even more. To illustrate: All of this takes up about half of my outline (where I try to distill everything we've learned into an organized format) for the entire course, though it was crammed into only four of the fourteen weeks in the semester. It was quite a ride.

Lawyering Process

Lest I forget that there actually was a third class demanding some of my brain power this semester: We did finish up the first half of Lawyering Process, the only course that will continue into the spring. I had to write a final legal memo, fifteen pages long, about the enforceability of a non-compete agreement in an employment contract. I won't say I enjoyed it, but I know it's invaluable experience for the future.

---

So that's it. I will learn nothing new until mid-January. All that remains is for me to prove to my professors that I really know and understand this stuff (or at least most of it), so they let me come back. There have been times in the past few months when I actually worried that I might not manage that. But no more. Confidence is high, and I still have days to study. So wish me luck, and I'll report back when it's all behind me.

And We're Back

It's been more than a month since my last law-related post, for which I apologize. Most people reading this probably already know that this is largely due to the birth of my daughter, Eleanor, at the beginning of the month, followed immediately by a traumatic midterm experience, and thence, of course, by normal day-to-day parenting, studying, and general stressing out.

I know: Excuses, excuses. Suck it up, Chris.

So now, after six weeks of silence, where to begin? There was that midterm, mentioned above, which was a travesty I've already wallowed in far too long and too deeply. Let's just say, I was not prepared, and I imploded spectacularly, and spent the next few weeks completely reorienting myself to the whole law school process. The good news is, the test doesn't actually count against me, and the better news is, it served very well to show me just how inadequate my studying up to that point had been, and I'm now feeling much better about things. (At the same time, I acknowledge that the whole law school experience so far has been characterized by a constant swinging between feelings of total comprehension and utter incompetence, which has left me hesitant to count on any good feelings lasting more than a week. But we will see.)

To quickly bring everyone up to speed:

In Civil Procedure, we have moved past the (very lengthy and convoluted) question of personal jurisdiction, and through something called subject matter jurisdiction, which is, thankfully, a little bit simpler than the personal kind. It's basically just about what kinds of cases federal courts are allowed to hear. (State courts have general jurisdiction, so they can hear almost anything.) The two main categories under the subject matter heading are (1) diversity jurisdiction and (2) federal question jurisdiction.

(1) Federal courts may hear a case when the parties are "diverse," meaning none of the plaintiffs are domiciled in the same state as any of the defendants. There are a few complications involving businesses and "aliens," but that's the gist of it. Oh, and the "amount in controversy" in the case has to exceed $75,000.

(2) They may also hear cases which involve (or even better, "arise out of") a "federal question," e.g., a civil rights violation or First Amendment issue. Again, and of course, there are complications, mostly involving how you may or may not tack on state law issues to your federal claims, which then bleeds into the topic of "supplemental" jurisdiction.

After all that, we discussed under what circumstances a case may be "removed" from state court to federal court, and then proceeded to the topic of "venue" (determining which courts within a given judicial system would be "the most sensible and convenient" in which to litigate), and now, to "pleading" (how to write the original "complaint," how to answer it, that sort of thing). One interesting thing about our progress (at least to me) is that we are moving steadily along a spectrum from very Constitutional issues (personal jurisdiction) to those much more governed by statute and the Federal Rules of Civil Procedure. This doesn't really makes things more or less complicated, but definitely requires a different approach in terms of studying and processing the information.

As for Torts, we're still talking about negligence, but whereas we had previously only looked at the rather involved issue of who owes what kind of duty of care to whom (duty and breach, the first two elements of a negligence claim), we have now moved into the realm of causation (the third element), which is much more up my alley. Causation encompasses both "actual" cause and "proximate" cause. Actual cause is usually pretty straightforward: did your negligent act bring about my injury? Or put another away: But for your negligent act, would my injury have occurred? If you negligently ran a red light, but my injured head results from my coincidentally tripping over the curb at the same time, there's no causation. On the other hand, if you hit me and break my leg, and the ambulance taking me to the hospital gets in an accident and I break my arm, and at the hospital instead of putting my arm and leg in a cast they accidentally amputate them, and two years later I am unable to escape from a fire because of my missing limbs and I die, there is, at the least, actual cause. None of it would have happened if you hadn't been talking on your damn cell phone.

Which brings us to "proximate cause." This really has almost nothing to do with causation, apart from the fact that you can't have proximate cause without actual cause. It's really all about how far a person's liability ought to extend. In the above example, you probably should be held accountable for my broken leg, but what about the rest? Are you liable to my family for the lost income and emotional distress brought about by my death two years later? As you can see, things get very interesting very quickly, and I think this has been my favorite part of torts to date. There are philosophical questions involved, which ties in nicely with my other interests, but I think what I love about it is how it's all tied to practicality. Philosophically, every event has infinite causes, and infinite consequences, but this is real life, and we have to draw a line somewhere. Seeing how different courts, at different times, have gone about drawing that line, and trying to figure out where I would draw it, is fascinating. (In case you're curious, although you'd still be liable for the broken arm I got in the ambulance, most likely the hospital staff's gross negligence in amputating my arm and leg would be considered a "superseding cause," and would therefore cut off your liability at that point. Lucky you.)

So, steady on. Shockingly, there are only four weeks of class left (followed by a little over two weeks to study for finals), so it will all be over soon, one way or another. Not so shockingly, I'm feeling very ready for that moment. Not necessarily because law school is so hard, but more because I'd like to be able to spend a bit more time with my family. It's not much fun having to decide between being a good student or being a good father and husband; even worse is feeling like I'm sort of doing a half-assed job of each. Thank goodness Amy and Dashiell (and even Eleanor, already) are so wonderful and forgiving. The best thing I can do is try to deserve them.