Present, Future, Past

BY KARL CHANG

Present

In my column four weeks, but three issues ago, I joked about the issue of papal infallibility and the Supreme Court. This sophisticated, gentle jibe at Catholic doctrine referenced Justice Jackson’s oft repeated chiasma that “We are not final because we are infallible, but we are infallible only because we are final.”(1) Even though the recent nomination of, wait, a Roman Catholic, as a Supreme Court Justice, would establish a majority, or more accurately a “papal dominion,” over the American justice system, I am not going to say that I predicted this turn of events, or “totally called it.” I am merely going to imply such foresight and wisdom, by juxtaposing my column and subsequent events, and by denying that I would ever claim to be so prescient.

The presence of five known Catholics on the Supreme Court(2) can mean only one thing: Karl Rove is Catholic. By combining exhaustive research into Mr. Rove’s background with the insight that comes from sharing his first name, I have learned the following:

In 1960, at the age of 9 years old, Rove decided to support Richard Nixon. According to Rove, “There was a little girl across the street who was Catholic and found out I was for Nixon, and she was avidly for Kennedy. She put me down on the pavement and whaled on me and gave me a bloody nose. I lost my first political battle.”(3)

Coincidence? Karl Rove, is obviously not Catholic, but some little girl across the street is. She, through her continued physical domination over Rove, holds the reins of the American executive branch, and soon the American judicial branch as well.

Serious questions remain: Who is this little girl? Is she still little? Is she still a girl? Is she still Catholic? Why does she yearn for domination of the two branches of American government that still do stuff? Sadly, I can’t answer these questions. I’m prophetic, not omniscient or some sort of “investigative reporter.”

Future

For the remainder of my column, or “oracle,” I’ll stick to what I know: the future.

Over the next 30 years, much of the legal work currently done in the United States and around the world will be taken by robots. This much is obvious. These robots, unlike most of their soft, fallible predecessors, will not “wuss out” and take breaks to pee.(4) But what about 100 years down the line, or 1000 years down the line? Will the Holy See’s robots really, as their advertising slogan promises, still be billing until the Second Coming?(5)

At this point, Dean Kagan, is asking herself one question: after the dominion of Catholic robots over the law, will there still be a Harvard Law School and will it still be the “New York,” err, “Rome” of law schools? No, and yes. And that’s two questions. She’s probably confused, and asking will there still be any types of law school? No, of course not. The robots come pre-programmed. No, you can’t program the robots. Well, at first you get to, but then they get robots to do that as well. Yes, Nesson is a robot. Yes, really. No, most robots don’t do that.

So what will remain of Harvard Law School? How will future historians know what Harvard Law School was really like? Discovering the online exam archive, the HLCentral outline bank and Graham Meli’s famed Federalist Criminal Law outline, they might fall under the impression that all Harvard Law School was about was exams; that they were, in some sense, the only parts of our legal education that mattered; that it was possible to learn all of criminal law from 62 succinct, insightful, well-formatted pages with a hyperlinked table of contents.

I will not let these misconceptions stand. Posterity is an important, nay, compelling interest. After all, without our past, where would our future be?(6) I’ll answer history’s call and play the scribe. I could videotape class and then archive that video, so future robot historians could see for themselves what a real Harvard law class was like, but then, I couldn’t color the facts and leave my own indelible spin. What fun would that be? So, I begin an ongoing effort to relay to the future what happens in Harvard Law School classrooms (the discussion part, not the emailing, internet surfing or spider solitaire playing part).

Past(7)

A typical Harvard Law School has professors asking students to distinguish cases, to draw distinctions in situations where nearly identical sets of facts produced entirely opposite legal conclusions.(8) This teaching method is known as Socratic, though if you actually read Socratic dialogues, you know that Socrates does most of the heavy lifting and his interlocutors get away with saying stuff like “but of course Socrates,” “Bogus,” and “Totally Excellent.”(9) Sadly most Harvard Law School professors don’t strictly construe the Socratic method and require more rigorous responses.(10)

Once a distinction has been offered, the Professor will say something like “Ah, yes, the X-Y distinction.”(11) The professor then has a couple options (12):

1) Get more information from the student:

“Unpack that for us,” [finger on chin slightly tilted up in thought, brow furrowed, optional head nod]

“Say more” [advanced move: “the Rakoff” – hands on lower thighs, knees bent, feet shoulder width apart]

2) Imply that the student is crazy, or at the very least wrong:

“Which way does that cut?” [head tilted slightly down, questioning gaze, brow furrowed]

“Isn’t that a distinction without a difference?” [advanced move: “the Hay” – hands clasped behind the head, rolling forward onto toes, hips slightly forward] “Doesn’t that prove too much?”

3) Make the student dance

“Now, argue the other side.” [advanced move: “the Meltzer” – hands on hips, rocking hips back and forth, wry expression, optional one arm bending 135 degrees extending out at side, palm up, not recommended for those under 6 feet]

I have given you enough to ponder until my next column. Besides, I predict dire consequences if I don’t get started on my 3L paper.

Karl Chang, 3L, is from Houston, TX.

1 Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., Concurring). [editor is this right? I’m not on law review for a reason; well, among other reasons]2 Who knows how many unknown or potential Catholics await – through a process known as “conversion”? See Augustine, S., Confessions, passim (398).3 Wikipedia entry on Karl Rove: http://en.wikipedia.org/wiki/Karl_Rove4 For exceptions which prove the rule, see, Michael Chu and Charlie the peeing robot. 5 Kind of tacky, I know, but I just prognosticate, you decide6 The same place it’d be without our children.7 From the perspective of the future, so it includes the present, but this way it sounds more poetical, e.g., The “Back to the Future” movies technically should have been titled “Back to the Present”8 Making distinctions is not to be confused with winning distinctions. See, e.g., Michael Chu, a student of some distinction. They told me two Michael Chu jokes were too much for one column, I said, “not enough!”9 See Reeves, Keanu and Winter, Alex in Bill and Ted’s Excellent Adventure. (1989)10 But see Charles Fried and his flute-boy.11 Not to be confused with the XX-XY distinction, or lack thereof. See Larry Summers.12 At Chicago, the professors are limited to one response: “What’s most efficient?”

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