Since Noah Feldman will be on one of the panels tomorrow at the Brookings Institute (and because this quote is just really funny), I decided to share a "Quote of the Day" post from Above the Law.

His quote is part of an article he wrote in response to David Segal's piece in the New York Times, "What They Don’t Teach Law Students: Lawyering." In it, Professor Felman argues that law professors play a momentous role in policy-making, especially when you  look at just how many high-level positions are staffed by former law professors. He also slips in a few quips about FDR and the Supreme Court, in homage to his recent book.

  I think the dislike, though, is a result of law professors being too much in the world. You see, law professors -- and I should disclose here that I am one -- very nearly run the world, or at least certain parts of the U.S. government. When you include Justice Anthony Kennedy, who taught nights, they make up the majority of the Supreme Court.

He also slips into the article a few quips about the late Supreme Court Justice Felix Frankfurter in the New Deal era as he progresses through a historical summary of law professors in government:

Ever since Felix Frankfurter sent his “happy hot dogs” to write New Deal legislation and staff FDR’s new agencies, law professors have been trying to affect the way government works...

If you'd like to read more, head over to Above the Law: http://abovethelaw.com/2011/11/quote-of-the-day-law-professors-rule-literally/

The rest of Noah Feldman's article is here: http://www.bloomberg.com/news/2011-11-27/for-better-government-don-t-kill-all-the-lawyers-noah-feldman.html

Lions and Tigers

"Of Lions and Tigers and Contract Terminations"

I'm happy that SCOTUSblog today was just as amused as I was last week with Justice Breyer's "lions and tigers" hypothetical in oral argument for Mac's Shell Service Inc. v. Shell Oil Products Co. The case concerns the difference between "constructive termination" and "implicit termination." As the law currently stands, constructive termination denotes a situation where the franchisee (i.e. a renter) voluntarily terminates a contract because the conditions have become intolerable (a leaser shuts off the water, electricity, dumps ants somewhere, etc). Implicit termination is when a franchisor behaves in a way that any reasonable person would believe that the franchisor themselves had terminated the contract (i.e. the leaser bulldozes the house). Implicit is clearly drawn, while constructive is fuzzy law. Hence, the following quote from argument last Tuesday:

Justice Breyer: "Now, suppose it's the same situation, but this person, the franchisee, being quite indefatigable and daring, finds a way of sneaking through the barbed wire that has been put up. And there is one pump they forgot, and there is a car that comes up and he serves that person. Now is it constructive eviction?"

Mr. O'Neil: "No -- That's where an objective standard is important..."

Justice Breyer: "Objective? You would say any sensible person would clear out immediately. There are lions and tigers roaming the gas station!"

Hypotheticals can be outstanding for their ability to clarify recondite principals. But as Justice Breyer has a tendency to show, revealing his stripes from 27 years as a law professor, those same principals taken to their extremes can add some much appreciated humor to an otherwise dry subject.

In a Supreme Court case handed down today (Marcus Wellons v. Hilton Hall), Justice Alito included in his dissent the following quote:

  "a juror stated that 'we, the jurors, gave a pair of chocolate breasts to the bailiff and the chocolate penis just followed..." (13)

I love footnotes.

Words found in opinion:
"Genitalia" - 1
"Breasts" - 2
"Penis" - 5

 From the oral argument for Perdue v. Kenny [10/14/09] concerning discretionary increases on lodestar compensation based on quality of performance (when judges are averaging how much a lawyer should be paid in a case, can they add a bonus for good work, and good results?):

Chief Justice Roberts: "maybe we have different perspectives. You think the lawyers are responsible for a good result and I think the judges are."

Mr. Clement: "And maybe your perspective's changed, Your Honor."

Justice Roberts: "maybe your perspective has changed too, Mr. Clement. Your argument is that, for $495 an hour you really can't get a good lawyer? You need to pay more than that?"

Mr. Clement: "Well, on that my perspective has changed, Your Honor."

When scholars debate the benefits for oral argument, it's quotes like these that make the case. Certainly, the representative's personal beliefs on compensation would never have entered into his legal brief. But because Justice Roberts had Clement in front of him, because he could solicit answers to questions seemingly unrelated to the legal merits- the justices were able to illuminate an area of the practice that could make a difference to the outcome of the case.