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Friday, August 03, 2012

"Reaching the Merits"

So there's the classic joke where the woman goes to Tibet, and at the city gates she encounters the enormous guard, bare-chested, armed to the teeth.  She says, "I need to see the lama."  He scoffs.  "No one sees the lama."  He doesn't budge.  She pleads with him.  Remonstrates.  Persuades.  Wheedles.  He lifts the pike.  "Okay, lady.  Okay.  You win.  Go on in to the city.  But forget about seeing the lama.  No one sees the lama."

At the wall of the city core, at the temple gate, at the holy compound, at the door of the Brahma Centre, at the residential complex, and at the very entrance to the meditation chamber itself -- the sanctum sanctorum -- the same scene repeats itself.  Each time the guard is burlier, surlier, and more disdainful, more emphatic that "No one sees the lama."  Finally she gains entrance. 

There, in the holy of holies, adorned with wisps of emergent satori, is the lama.

"Sheldon," she says.  "Come home!"

At times, reading cases, it seems to the law student that such preliminary gateways and maneuverings are the vast majority of what we do.  To every issue there is a "threshold issue"; before any question is asked there are motions in limine; the countervailing facts are not yet ripe for consideration; can subject-matter jurisdiction be addressed before prudential standing, or do we even need to reach that question? 

I read a case at some point this year in which the judge rejected an argument against immunity by finding that the plaintiff had waived the argument that the defendant had waived his immunity argument, because the plaintiff had already addressed the pseudo-jurisdictional question of immunity to a civil suit "on the merits."  One might have thought the merits had to do with humans' activities; or their rights to do those activities; or the defendant's effect on such rights; or money; or the regulation of money flow; or the policy concerns about such regulation and the incentives it creates; or the role of the courts in exercising authority over such policies; or the rules by which the court brings that authority to bear.  But at this point in the case, "the merits" was a threshold matter to be reached before all of those things. 

If the deputy proconsul refuses to stamp your visa for Tibet, you can forget about making your case to the lama.

The metaphor, I think, works as a way of telling the story of any litigation.  All that really needs deciding is whether Sheldon goes home or not (or maybe, whether the lady just unwittingly arrived home herself).  At the heart of the matter, the ultimate substantive place and time of determination "on the merits," there is the single moment when the jury watches as someone stands, turns toward the witness, and says:  "J'accuse:  You did wrong!"  And the witness says, "No, I didn't."  And someone decides who to believe.  Before that, we tend to think, everything is law; in that moment, there is the magic of judgment.  It's the ghost in the machine.

In law school, I have been learning how to reach or guard the processing core:  the chamber of decision.  We study how the Tibetan city is laid out.  That is important.  But what I'd like to add this month is another perspective, which has the potential to add a dimension both to law and to the study of law.

Let me put it this way first.  (Then there is a connection to be drawn to my first post, which was on cover letters.)

How does the lady in the joke, with her domestic agenda, persuade ANY guard that she should be admitted to the seat of "power"?  And better yet:  for here is where a literary imagination helps you:  how does she persuade EACH guard?  For each of them is, whatever else he is, a person.  He has a back story.  He has a mother, a sister, a wife of his own; or he is curious about the lama in a certain way; or he wants to practice his English; or he can be bribed; or he has orders that she can echo and distort.  What is his training?  How does he understand himself outside of (or underneath) his official identity?

Ultimately, the question is Who does a decision-maker want to help?  These are matters at the core of the human person -- and such a person stands at every threshold.  These questions do not arise in the meditation chamber alone.

My contracts professor gave us the great gift of saying, on a few key occasions, "This is another example of how rules don't decide actual cases.  What decides actual cases, whatever it is, isn't in the Restatement.  What decides actual cases"  --- well, there was never a clear predicate to that sentence.  We had a professor of rare, Zen-like humility.  I commend his example to you.

So what does this have to do with cover letters?  Well -- first of all -- it's remarkable that when the question was posed in public to law professors, to not one did there occur an example of a great cover letter opening worth posting, a cover letter opening to take pride in because of the way it hides and reveals the scholarship one finds enclosed with it.  (me:  "Examples please!"  PrawfsBlawg:  >ri-keet!  ri-keet!<)  This suggests that law professors believe cover letters are a threshold matter:  mere procedure, a matter not touching the "merits" of scholarly work.  Many of the actual cover letters I read suggest the same belief at work.  

I disagree, and I suggest that the threshold/core or procedure/merits distinction is less helpful in our work (all of it) than it seems.  (Surely this is one reason that Erie doctrine gives everyone so much trouble!)

Moreover:  I suggest that in general, the distinction between legal process and judgment-of-fact is less helpful than it seems.  True, the jury is trained differently than the judge:  but in their central, magic moment of judgment, they too are fulfilling an official identity.  And in her preliminary, "threshold" rulings, the judge also is reacting to the humans before her, making credibility determinations, and reacting instinctively.

For reasons like these, I am spending law school not just learning about the rules but also about myself in relation to people.  I spend many hours each semester practicing courtroom demeanor, as a member of Cleveland-Marshall's outstanding trial team, sponsored by an excellent Cleveland firm.  We get inside witnesses' heads, and we think hard about how the jury (which is to say anyone) thinks and feels.  We practice how to behave.

Because these supposedly non-substantive matters are the ones that decide the outcome, at every threshold.

The tremendous thing about the profession of law is the way it connects central issues with peripheral ones, and moves between meditative abstraction and the practical world.  I hope this post has suggested a connection between that duality and the distressing fact of the month:  the fact that a law-review editor, guarding the scholarly situs, is also, and throughout, a temperamental young person, feeling the imperatives of "professionalism," leafing through cover letters.

We try to establish a meritocracy in this profession.  And there's bad news and good news (though I'm not sure which is which):  Merit is a threshold question.  And it's thresholds all the way in.

Posted by Jim von der Heydt on August 3, 2012 at 10:23 AM in Civil Procedure | Permalink


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Thank you, Bruce. I thought Prof's comment was "really bad," especially considering his/her choice to post anonymously.

Posted by: Aaron M | Aug 5, 2012 7:48:17 PM

Jeez, Prof, it's a blog post, not a brief. I hereby advise the readers to chill.

Posted by: Bruce Boyden | Aug 5, 2012 10:46:01 AM

This post is really bad. You are a law student? You need to learn how to state your points succinctly and clearly. Work on that before going into blogging.

Posted by: Prof. | Aug 4, 2012 5:52:50 PM

"relatively few readers will still be reading by then"
Yes, those are the ones I was writing for. The others will ignore the post (with, apparently, one exception).

In the same way, editors that value the cover letter will value a good one, and editors that don't will ignore one. It's hard to see the merit in ignoring the former, even if there are fewer of them.

Posted by: Jim von der Heydt | Aug 3, 2012 9:19:01 PM


It's in the nature of shaggy-dog stories to be shaggy, but the argument got woolly as well.

I'll have more organized thoughts on legal academia's neglect of juries, and the complexity of "fact-finding," in a later post.

Posted by: Jim von der Heydt | Aug 3, 2012 9:14:46 PM

The problem is that most articles editors say that cover letters are irrelevant and that they never read them. So if you're asking us for the best cover letter, no responses may in fact be our "Zen" answer.

(Incidentally, you might also find that you get more of a response if the reader knows what the post is about in the first paragraph, above the break. If you make readers work their way through a lot of writing before you get to the point, relatively few readers will still be reading by then.)

Posted by: Orin Kerr | Aug 3, 2012 6:01:09 PM

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