Wednesday, November 21, 2007

Lost Causes

For those readers who, unlike me, never experienced childhood in the American South, let me preface this post with a brief explanation of the Lost Cause. Wikipedia's summary will do:
Pickett's ChargeThe Lost Cause is the name commonly given to a literary movement that sought to reconcile the traditional society of the Southern United States to the defeat of the Confederate States of America in the Civil War of 1861–1865. Those who contributed to the movement tended to portray the Confederacy's cause as noble and most of the Confederacy's leaders as examplars of old-fashioned chivalry, defeated by the Union armies not through superior military skill, but by overwhelming force.
I quote again from Wikipedia in summarizing the tenets of the Lost Cause:
  • Confederate generals such as [Robert E.] Lee and Thomas "Stonewall" Jackson represented the virtues of Southern nobility, as opposed to most Northern generals, who were characterized as possessing low moral standards, and who subjected the Southern civilian population to such indignities as [William Tecumseh] Sherman's March to the Sea and Philip Sheridan's burning of the Shenandoah Valley in the Valley Campaigns of 1864.

  • Losses on the battlefield were inevitable due to Northern superiority in resources and manpower.

  • Losses were also the result of betrayal and incompetence on the part of certain subordinates of General Lee. . . .

  • Defense of states' rights, rather than preservation of chattel slavery, was the primary cause that led eleven Southern states to secede from the Union, thus precipitating the war.

  • Secession was a justifiable constitutional response to Northern cultural and economic aggressions against the Southern way of life.
Pickett's Charge, the pivotal moment of the Battle of Gettysburg and the subject of the romanticized painting depicted above, epitomizes the place of the Lost Cause in Southern cultural memory. No one, and I mean no one, expresses the sentiment more vividly than William Faulkner [from Intruder in the Dust (1948)]:
Intruder in the DustFor every Southern boy fourteen years old, not once but whenever he wants it, there is the instant when it's still not yet two o'clock on that July afternoon in 1863, the brigades are in position behind the rail fence, the guns are laid and ready in the woods and the furled flags are already loosened to break out and Pickett himself with his long oiled ringlets and his hat in one hand probably and his sword in the other looking up the hill waiting for Longstreet to give the word and it's all in the balance, it hasn't happened yet, it hasn't even begun yet, it not only hasn't begun yet but there is still time for it not to begin against that position and those circumstances which made more men than Garnett and Kemper and Armistead and Wilcox look grave yet it's going to begin, we all know that, we have come too far with too much at stake and that moment doesn't need even a fourteen-year-old boy to think This time. Maybe this time with all this much to lose than all this much to gain: Pennsylvania, Maryland, the world, the golden dome of Washington itself to crown with desperate and unbelievable victory the desperate gamble, the cast made two years ago.
As I write these words in Louisville, Kentucky, a city that is to the American South as the Free City of Danzig was to the Weimar Republic, this insight comes to mind: Die sogennante «Lost Cause» ist unsere Dolchstoßlegende.

All this, as I have said, is prologue ─ das Vorspiel, if you will, to the final chapter of a tragic trilogy focusing on the South Carolina bar exam scandal (see part 1 and part 2). The State, South Carolina's newspaper of record, has dutifully reported that the South Carolina Bar has meekly accepted the statement by that state's Supreme Court regarding the admission of twenty candidates to the bar by court order rather than bar exam performance:
South Carolina BarThe South Carolina Bar appreciates the candor and responsiveness of the Supreme Court in its recent statement regarding the bar examination grading error. The Bar recognizes that the Court had no obligation to explain its decision. Indeed, judicial independence and impartiality require the Court to be deliberative and to render opinions apart from external considerations. However, in making the additional statement, the Court has put to rest any speculation concerning the facts. The Statement further exemplifies the conscientiousness with which the Court addresses all the important matters that come before it. The Bar is confident that the Court has and will continue to maintain the integrity of the bar admissions process.
And so the leading body of lawyers in South Carolina retreats, as defeated as the Army of Northern Virginia on July 4, 1863, from its confrontation with the South Carolina Supreme Court.

Williams-Brice StadiumUnlike its predecessor in Southern history, this Lost Cause has merit. Legal professionals, in South Carolina and the rest of the nation, have every reason to question the Supreme Court's decision to mint 20 new lawyers who, by every account, flunked South Carolina's July 2007 bar exam. They have reason to doubt the high court's outlandishly illogical explanation. This sort of thing has happened before; now it is being reinstitutionalized anew. Not Very Bright's timeline leaves no room for doubt: this was a hamfisted, naked power play by South Carolina's judiciary, carried out at the expense of that state's bar and larger public. Yet, like many observers who are far closer to South Carolina than I am, I too expect this scandal to fade from public view as attention turns to Thanksgiving and this weekend's Clemson-Carolina football game. Panem et circenses, indeed.

The simple explanation is, as usual, correct and complete. South Carolina's lawyers, by my informal survey, are horrified by the Supreme Court's abuse of power. They rue how this episode will resonate for years, even decades, as yet another generation of South Carolinians learns that power, not prowess, that pedigree, not performance, holds the key to success. They cringe at the thought of outsiders consigning this most quintessentially Southern of Southern states to perpetual cultural irrelevance in the American pageant.

And yet they do nothing. I know why. They are afraid. Here is a brief sampling from my conversations and correspondence:
  • "[In South Carolina,] retribution from the powers-that-be can be swift and brutal. That's not paranoia. It really is how things work here. There are no checks and balances, and if a megalomaniac rises to power, it's lights out."

  • "[Chief Justice] Jean Toal can have you electrocuted if you cross her."

  • And this gem from a commenter on FITS News for Now: “I’m embarrassed to be an attorney in South Carolina right now. . . . First it was the Court’s decision, now it’s the Bar Association bending over and taking it. No attorney is ever going to go on the record and say this, but the entire episode is disgusting, disgraceful and discouraging for everyone associated with this profession. Everyone knows so, everyone thinks so, but (the Justices) hold so much power no one dares to say anything, to say nothing of trying to hold them accountable for it.”
ThanksgivingOn the eve of Thanksgiving 2007, MoneyLaw will memorialize this episode. As soon as I finish writing this post, I will take pains to place what I am going to call my South Carolina bar exam trilogy in this weblog's sidebar. What happened here was disgraceful. It was scandalous. As a Southerner and a lawyer, I am ashamed.

I have spent enormous energy on this issue because it is personal. As I've confessed on MoneyLaw's sister forum, Jurisdynamics, "I have reached Dante's proverbial mezzo del cammin di nostra vita, only to realize that I burned the first half in pursuit of professional goals for which I was thoroughly unsuited" and, consequently, paid and will continue to pay a steep personal price.

But sunk costs are just that: sunk. The only person "worth being is the solitary and unseen you that existed from your first breath and which is the sum of your actions." At this stage, I have reduced my life's ambitions to two lofty goals: teaching other people's children well, and doing the same for such children as I might have someday. The former goal, at any rate, is progressing well enough. I strive to make the University of Louisville School of Law a place where first-generation and second-chance students can transform themselves for good, to lead an uncommon school for common people. By and by, mayhap, I might even get a chance to make an entire university, preferably one that is Southern and public, a place where locals and outsiders alike are proud to attend. These ambitions are merely my own idiosyncratic expressions of a Lost Cause held dear by me and by many other Southerners (especially but not exclusively those of us of humble origins): making our beloved region whole again, so that slavery, secession, and segregation are not our eternal curse, but rather the beginning of lessons learned and redemption earned.

South Carolina's bar exam scandal is a blow to those of us who believe, perhaps against all that we have observed and absorbed as Southerners, that our region might yet overcome the politics of corruption and the culture of complacency. So much for my institutional voice. Perhaps relief lies in speaking personally.

Far be it from me, a childless middle-aged man, to give parental advice ─ nur wer die Liebe sowie die Sehnsucht kennt, weiß was ich leide ─ but I do have a suggestion for the fathers of Catherine Harrison and Kendall Burch, the two well-pedigreed young women who were the focus of news coverage and private speculation surrounding the July 2007 South Carolina bar exam. Gentlemen, if you should ever have occasion to counsel another child or grandchild who has flunked the bar on her own merits, try the following alternative to encouraging your child to win admission to the bar by court order:

Catherine, Kendall, listen to me. You flunked the bar. Fair and square. Even for those born to prosperity and privilege, life deals bad breaks. The "hard work" you need to do is cramming for another shot at the bar exam. Those things you don't earn ─ they don't belong to you. The technical term for enjoying those things that don't belong to you is "theft." This, too, and more is covered on the bar exam, which you will retake and (God willing) pass on the second try. This is the lesson I most want to teach you, because I love you.



Anonymous Anonymous said...

This is such a beautiful, multi-layered piece of writing. Thank you for caring about the right things and having the bravery to stand up for them. When I read things like this, it keeps me from sliding completely into cynicism. I guess the word for that is "hope."

Thanks again.

11/22/2007 7:19 AM  
Anonymous Anonymous said...

Dean Chen--

This is the anonymous, apathetic young lawyer from your previous post. Your commentary means a lot. And, as Not Very Bright noted, your writing helps keep the cynicism at bay. I'll keep the South Carolina state motto in mind as I sit down for Thanksgiving dinner:

Dum Spiro Spero ("While I breathe, I hope").

Thanks again for your coverage--and for paying attention.

11/22/2007 3:57 PM  
Anonymous Anonymous said...

If you need directions to Gainesville, please let me know. We'd love to have you!

11/23/2007 9:32 AM  
Anonymous Anonymous said...

Dean Chen,

Congratulations on writing this line, now burned into my memory: "Louisville, Kentucky, a city that is to the American South as the Free City of Danzig was to the Weimar Republic"

Jack Chin, Arizona

11/24/2007 7:02 PM  
Anonymous Anonymous said...

I sincerely appreciate you following this story.

11/25/2007 11:52 PM  
Anonymous Anonymous said...

A heck of a piece of writing.

I am torn. Until last year I had planned to attend law school after I retired from my first career (engineering). Then came the Duke hoax, and I found I could not be in the company of lawyers without a little vomit rising in the back of my mouth.

This month, I'm sitting on a Federal jury. A large fraud case, with small fish as the defendants. I find both the AUAs and the defense attorneys to be disorganized, uninformed, ill prepared, bombastic, annoying, rude, arrogant and self-satisfied.

I don't know what is drilled into these people in law school, but it's nothing good. I think my second career is going to be teaching economics to 8th graders.

The SCSC did not do anyone a favor in this - including those unqualified sops now allowed to take money for their substandard work.

11/26/2007 1:57 AM  
Anonymous Anonymous said...

As a Minnesotan my memory of Gettysburg is not the lost cause but the heroic efforts of a small band of individuals on the Union side to stand their ground against overwhelming forces. The 1st Minnesota volunteers had an 82% casualty rate on the second day at Gettysburg.

Your writing about this issue illustrates how plainly you stand with people willing to sacrifice for what they believe in.

Your coverage has been brave and thoughtful and the line you are holding is worth the fight. This has been a disgraceful episode by the SCSC, the students who begged for special consideration, and particularly the bar that trembles in fear before petty tyranny. I'm glad you are wise and bold enough to take a stand on issues at the heart of our legal system.

11/26/2007 3:00 AM  
Anonymous Anonymous said...

Thank you for "Lost Causes." "The light shines in the darkness, and the darkness has not overcome it." John 1:5

11/26/2007 10:20 AM  
Anonymous Anonymous said...

Dear Dean Chen: Good heavens. I thought I would be reading a legal blog. Instead I find a draft of an opera that Richard Wagner would have rejected as "too florid" when he was working on his Ring cycle. Once we get past all the German and the heaving and roaring, what do we find? Nothing that is going to change the very funny situation in Columbia, South Carolina. Funny because it confirms the low regard the laity have for lawyers:

a) the privileged few who can whine for special treatment---and get it.
b) the granting authority which roars and blusters about integrity right up to the point when Power comes along and kicks the Bar into the gutter---where it belongs---and does what it pleases. Because judges are INDEPENDENT and don't have to follow the rules for peasants.
c) Power, which is what judges are all about.
d) yourself, who shrieks in German about how awful it is, but carefully does nothing that will impede a possibly great career, culminating in the usual memoirs: ON THE MAKE: THE RISE AND RISE AND RISE AND RISE AND RISE AND RISE OF A LAWYER WHO KNOWS WHICH SIDE OF EVERY PIECE OF BREAD IS BUTTERED.

This is harsh, and in the seventeenth century would doubtless earn me an invitation to the field of honor, pistols at dawn. But Dean, the bending of bar admission standards is a matter more of interest to lawyers. The laity, of whom I am one, shrug their shoulders, snicker and remember Judge Samuel Kent of Galveston Texas and say "so what else is new?" No, if any action is to be taken against this gang of Five Swelled Heads, it will have to come from the Bar. The South Carolina Bar? Forget it, they are still whimpering from the pain of the new ring inserted into their collective septum. No it will have to come from outside the state. You know, from the Tennessee bar, for example.

What to do? Well, article V section 17 allows for the South Carolina Legislature to impeach officials---including judges, though no doubt, the South Carolina Supreme Court would promptly rule themselves immune from such action. JUDICIAL INDEPENDENCE, the megaphone of SOUTH CAROLINA REPORTS would roar. But such blustering should not discourage out of state lawyers from Doing the Right Thing. But how many lawyers from out of state would consider doing such damage to their Careers? Asking the question answers it.

So there it is, Dean. The South Carolina Supreme Court has jumped into the sewer, taking the SC Bar along with it. The offal that flies about is landing on the National Bar and all lawyers to some degree. What are you, Jim Chen, Dean of the Louisville Law School, prospective Man of Destiny, going to do about it? The Gang of Five on the SC Supreme Court, is doing what Law does best: speaking power to truth. What are you going to do about it? My bet: nothing more than has appeared on this blog. Taking action, e.g. getting up an impeachment, would require tossing all other objects to one side, with long odds against succeeding. That's what Integrity requires. Feel up to the challenge? While you ponder this question, consider this line (in English, alas, not nearly so authoritatviely pretentious as German or William Faulkner) from THE DOCTOR'S DILEMMA by George Bernard Shaw, act II scene ii:

"All professions are a conspiracy against the laity."

Deny it if you must; reflexes are strong. But the Gang of Five will laugh at you in private as a naive fool, even while in public they scowl, fondling their gavels, so like clubs.

Sincerely yours,
Gregory Koster

11/26/2007 2:49 PM  
Anonymous Anonymous said...

Dean Chen-
As a lawyer here in South Carolina I am grateful to you for your thoughtful commentary on this sad and disappointing episode with the SC bar exam. Too often in this state lawyers are scared into silence. Just a few years ago a group of law professors at SC law signed an open letter condemning discrimination by the US military against gays. These professors were roundly criticized by many powerful people in the state. The lesson was that if you cross any powerful person in this state you should be prepared for swift retribution. We need more courageous people like you to stand firm and tell the truth. I know I won't forget it.

11/27/2007 4:26 PM  
Blogger Marty Tennant said...

Upon hearing of this scandal, I immediately started a petition to impeach the ringleader of this gang of five. This was not done only for this latest scam, but for the drinking and driving, sideswiping and damaging cars and leaving scenes of accidents with impunity. I've had enough of Queen Jean.

There have been a few folks willing to stick their necks out after hearing of this bar exam outrage. But only a few. Fear is a powerful motivator in S.C.

Visit to learn more. If so inclined, sign the petition. If you don't, don't worry. You are in good company with those that refuse to stand up to such concentrated and corrupted power.

11/27/2007 11:44 PM  
Anonymous Anonymous said...

anonynmous said...

Beautiful, well writen and informative. However, All that is necessary for the triumph of evil is that good men do nothing.
Edmund Burke
Irish orator, philosopher, & politician (1729 - 1797)

8/03/2008 1:23 PM  

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