It was that time of the semester. Finals were just around the corner. Fenno cracked his knuckles and parked himself in front of his laptop. He was going to learn all of Constitutional and Corporate Law in under 2 weeks. Fenno began downloading HLCentral outlines – thousands of pages he never read, condensed for him by more diligent students. Perfect.
Fenno was in study mode when there was a knock on the door. Assuming it was a neighbor in need of a condom, but not wanting to be disturbed, Fenno slipped one under the door. A minute later, the knock came again. “Need another one?” asked Fenno. No answer, just more knocking. Confused, Fenno opened the door and saw a large burly man with the condom by his feet.
“Are you Fenno?”
“Depends on who wants to know,” quipped Fenno, trying to figure out who this was and how he got into Gropius.
“This is for you,” said the man, handing Fenno an envelope, and disappeared.
Fenno picked up his condom and closed the door. The realization hit him like a Con Law book, he had just been served. Right before finals, too. Fenno read the missive. Mike Kaiser filed a class action on behalf of all law students who lived in constant fear of being mentioned in Fenno. Brad Rosen and the Rohrbeck Rabbit were the class representatives. Apparently the Section Six Slander and Fenno were not universally appreciated.
Fenno decided not to panic, he would handle this like the almost lawyer that he was. But first things first. He sprinted to the Career Services Office and dove into the first open door he saw.
“Hi. Pardon me for not making an appointment, but this is more important than 1L cover letters. Can being sued while still in law school for a school-related activity reflect poorly on my employment prospects?” asked Fenno, trying to be eloquent while he caught his breath.
“That depends on what you want to do in your career,” came the standard reply. “And if you are not successful this summer, you can always do OCI again next year. I’m sure you’ll do great. Do you need help editing your resume?”
“Um, no. Thanks anyway.” Fenno left Pound Hall. It looked like he was going to have to fight this tooth and nail.
First, he needed to file a response. He did not have the time to look at all the legalese in the complaint. Fenno took out a sticky note, wrote “No” on it and affixed it to the thick pile of papers. It didn’t look professional. He replaced the sticky note with one that said, “I object.” No, no, all wrong. He threw that out and wrote, “I disconcur with all the allegations set forth herein, whatever they may be. Furthermore, I am an upstanding member of the community.” This took two sticky notes, but Fenno was satisfied. He dropped by the Holmes Mail Center and the Mail Room in Pound to ask for directions to a post office where he could mail his reply.
Fenno began debating litigation strategy. After all, this could be good review for his finals. “Ok, I work for The Record, they should defend me. Moreover, Roger Pao won the Sears Prize, he’ll know what to do,” thought Fenno as he took up watch in front of the library waiting for Roger to show up. After less than 10 minutes of pacing in the bitter cold, Fenno saw Roger approach.
“Hey, Roger. How you doin’?”
“I’m fine, thanks. How are you, Fenno?”
“Man, am I glad to see you. Here’s the deal. I got sued for my column. Can you help me out? Argue in court? Get this thing dismissed? Anything?”
“Fenno, this is an important decision,” said Roger, rubbing his chin. “Let me think about the possible courses of action and get back to you.” With that Roger disappeared into the library faster than Fenno could down a shot of tequila.
Three minutes later, Fenno received a 10-page email from Roger outlining in detail why he believed it would be contrary to public policy for him to become involved in the suit and wishing Fenno all the best. The letter ended with a puzzling poem:
“Seek out fair winds and following seas to weatherThis storm, just part of theHolocaust of piles of double spaced briefsStrewn about in towers of steel and ivory”
“Bull,” thought Fenno. “Or, on second thought, maybe Roger is trying to tell me something. Fair winds and following seas… Charles Facktor! He thinks I should ask Facktor for help? That’s worse than bull.” Fenno grabbed his cell phone and called the next person in The Record staff box. Anna Brook picked up on the first ring. “Good, she’s not screening my calls,” Fenno breathed a sigh of relief.
“Hey Fenno. What’s up?”
“Hey Anna. How’s my favorite publisher? I’ll get straight to the point, I got sued for making fun of people in my column and you have to help me.”
“Me? Fenno, you know I don’t get involved in disputes. Not my style.”
“What do you mean? You’re in law school. You’re supposed to be involved in disputes. That’s what the firms will pay you for.”
“Yeah, yeah. Until I see the money, I don’t get involved. Sorry Fenno, but if you want to grab a celebratory drink or six after you win this, let me know. Tee hee.” With that, she hung up.
At least Fenno had someone to drink with at the end of this. Not a total loss.
Just as he was about to think of another strategy, he saw Mitch Webber. Mitch was pacing, eyes bloodshot, mumbling to himself. “Goddamn anti-Semites. They’re everywhere. Like Charlie in Viet-fucking-nam.” Mitch had a way with words, thought Fenno. But despite his utter incompetence, Roger hadn’t fired him, so maybe Mitch had some power. Fenno approached.
“Mitch, I’m getting sued for all the columns you let slip through. Why didn’t you stop me from writing about Brad Rosen’s stool? Do you even read what I send you? I need your help.”
“No can do, Fenno,” said Mitch. “Too many anti-Semites to fend off.”
Fenno shrugged. “Maybe I’ll go ask Dershowitz to defend me,” Fenno mused to himself.
Mitch’s eyes widened. “Dershowitz is a Nazi. Don’t talk to him.”
Fenno was confused. “Dershowitz isn’t an anti-Semite, Mitch. He’ a Jew.”
“That doesn’t stop Finkelstein,” Mitch responded. “All that talk about ‘peace’ is code for ‘Jew’! Like neocon! Dershowitz hates Jews!”
Fenno walked away shaking his head. Apparently Zionism had finally driven Mitch completely out of his mind.
Instead of going to see Dershowitz, lest he be accused of associating himself with an anti-Semite, Fenno headed to Arthur Miller’s office. The fastest way to get rid of this pesky problem would be on some sort of jurisdiction issue. Fenno cringed under Miller’s gaze, anticipating a probing question, the answer to which he should have known but didn’t. “Well, Fenno. It seems your loathsome social disease of always putting your foot in your mouth finally got you in trouble. I suggest you find someone to help you with a First Amendment defense. Now leave my office and don’t bother me with your petty problems.”
Unable to get a hold of Charles Fried, Fenno decided to do the next best thing and ask the Law Review for help. They were, after all, the best of the best and had three out of four Sears Prize winners on board. He asked Liz Frieze in class. “It seems to me…” she began, gesticulating wildly and in the process poking Fenno in the eye with her pencil. Fenno ran off in excruciating pain. That was it for the Law Review; this was potentially deadly. Fenno would simply get students he wrote about to testify that his column was harmless. This was no easy task. Fenno’s commentary in the past had been rather caustic, but insightful.
First on the list was Jessica Tuchinsky. “But Fenno, you made fun of the 3L class trip and we had a 54% drop in people signing up,” said Jessica, declining to testify. Fenno didn’t think so many people read his work. Flattering. Michele Murphy had heard the exchange and as Fenno turned to her, she flipped her hair and stormed off. Janice Corrales agreed to testify that Fenno was harmless, but then realized she’d be in California the week of the trial. Another strategy down the drain.
The next option was to find powerful p
eople to help. And Fenno knew just the person with enough contacts to pull this off. He called up Yani Rosa and asked if she could hook him up with some names and numbers. “Fenno, quit wasting up my daytime minutes. Don’t you know how to use IM?” Yani sounded annoyed. In response to his IM, Fenno got a link to a photo of Yani with Janet Reno on her Facebook profile. This was not exactly what he was looking for, but it was a nice photo.
Fenno sat at Forest Café, drowning his sorrows in frozen margaritas. He was going to try one of every flavor on the menu. On margarita number 5, Fenno looked up and saw Jason Docheff. “Hey, Docheff, what do you think of having been in Fenno a few issues back?” he asked.
“That was a great honor, Fenno. Your column is awesome,” replied Docheff. He seemed serious about this.
Fenno’s spirits soared. “Docheff, will you testify at my hearing?”
“Sure, just tell me when.”
Fenno finished the list of margaritas anyway, he always had a policy of finishing what he started. On his way back to campus Fenno saw Ben Shapiro. It would be great to have a token conservative testify on his behalf. Not sure of his probability of success, Fenno asked Ben to help him out.
“Fenno, I am disgusted you would even ask me to speak on your behalf. The Founding Fathers did not mean for the First Amendment of our Great Document to protect the soft-core smut that is so pervasive in your column. You should be ashamed of yourself for destroying the moral fiber of our society.” Ok, so maybe Ben wouldn’t testify, at least there was Docheff.
Finally, judgment day came. Fenno was decked out in his best interview suit. He was worried about representing himself, but student loans don’t cover attorney fees. He sat in the courtroom, wondering how he was going to avoid wetting his pants. Opposing counsel Kaiser came in, arms full of Westlaw printouts of what Fenno decided must be damaging precedent. Damn that FYLRW or FYL or LRW or whatever program, why did they have to teach these 1Ls how to research while in Fenno’s day he learned absolutely nothing? Fenno looked at his own empty briefcase. He should have called Pia Owens to help him research. She paid attention in FYLRW.
The courtroom began filling up. Libin Zhang showed up, but upon learning that there would be no free food ran off to make it to the Kentucky Club’s KFC outing, with a quick stop at the Wisconsin Club’s cheese tasting. Charles Facktor stood at the door, passing out leaflets encouraging the violent paramilitary overthrow of Dean Kagan. Roger must have tipped him off to the proceeding.
By the time court was called to order, the room was more crowded than Austin North during the Ames competition. Someone had even procured a keg. Fenno realized he would be humiliated in front of all his colleagues. Just then, Judge Posner came in. “Wait, isn’t he in the 9th circuit or something?” thought Fenno. As if reading his thoughts, Posner explained that he was in town giving a speech and thought he’d use his clout to preside over this important case. After all, it’s not every day that one HLS student sues another, and in a class action composed of all HLS students no less. Whatever happened to collegiality and good will?
Fenno lost all hope after Kaiser’s opening statement, which expounded on the three prongs of slander, libel, defamation and threw in defenestration for good measure. Kaiser took his seat and it was now all up to Fenno. As he tried to figure out what to say, he heard soft, but assured steps. He turned to see Stephen Wagner, Arthur Miller’s assistant, behind him. Stephen passed Fenno a note and a cup of coffee. He tilted his head to the back of the courtroom. Fenno followed with his gaze and saw the epitome of Civil Procedure himself in the shadows. He tried the coffee. Black with 1.5 sugars, just the way he liked it. How did Stephen know? Turning back to the judge, he realized he had to say something. He wanted to call his first witness, but Docheff had disappeared 3 nights ago on a top secret mission and Fenno was unable reach him. Desperate, Fenno opened Miller’s note. He was saved! Chin up, shoulders back, he walked up to the bench.
“Your honor, the powerful and all-knowing Judge Posner. It appears we have no choice but to dismiss this case. Opposing counsel is a 1L and has not yet passed his first set of exams, much less the bar exam. He is therefore, without question, completely unqualified to represent the plaintiffs in this action.” See A. Miller, Rapidly Scribbled Message on a Napkin. “The defense rests.”
When Miller speaks, there is no room for judicial activism, even by Posner. Fenno was victorious. He picked up his empty suitcase, put Miller’s note in his pocket as a keepsake and went back to the dorm. He was now free to write a whole second semester of columns as he pleased without fear of reprisal. You know why? Res judicata, my dears, res judicata.