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Thursday, November 19th, 2009

Time Event
Graham v Holder 384 U.S. 436 (1966)
Today I had a unique experience: I actually heard from a lawyer who is less knowledgeable and skilled—less lawyerly— than I.

This is remarkable (indeed, I am even now remarking on it) because I graduated third to last in my class of 145 after being kept back a semester. The school team mascot (which I think was a stalk of Asparagus named Ebrit), got a better grade on its final in Police Procedural class than I did.

So where, in all of this great land, did I actually find a lawyer who knew less about law than yours truly? I heard him on the radio. His name is Eric Holder, and he is your Attorney General, yes, your very own, Mr. & Mrs. America.


Most of my readers have probably never had the dubious pleasure of being in Law School, but you may have seen the movie or television show a few years back called THE PAPER CHASE, where the crusty old professor Kingsfield announces “You come in here with a skull full of mush and you leave thinking like a lawyer.” One of the ways crusty old professors ladle out the mush from the skulls of students, and train them to think like lawyers, is by means of hypotheticals. Of course, we have no time to say the whole word “hypothetical” in Law School so we call them “hypos” a word similar to what you call a needle that pierces your flesh.

The classrooms (at least in my Alma Mater at William and Mary’s Marshall-Wythe School of Law) are large semicircular lecture halls shaped something like a gladiatorial arena cut in half. To cut the students in half, the crusty old professors will call upon a student at random. The student must stand. A dread silence fills the arena. The “hypo” is uttered, and the student must, on his feet, analyze the facts, apply the law, and support his conclusion with any case law he can recall without looking at his notes. To fail at answering a hypo is to fail before the eyes of your fellow students, who will one day be your colleagues.

Nothing is worse than standing before the eyes of all and having nothing to say to the hypo. Nothing is better than lounging in your seat, not called on, and knowing the answer, and the case law, and having the argument to support either position ready on your lips. Ah! The Germans have a word for that: schadenfreude. Pleasure at another man’s distress.

Well, on the radio today, I suffered a 'Nam style foxhole-flashback to my law student days, and felt once more that sickly-sweet yet fiendish pleasure of schadenfreude when I heard another student of the law being grilled. And toasted. And deep fat fried. And turned over on the griddle to sizzle on the other side.

But it was not law school. It was a senate hearing. Mr. Holder the Attorney General was being cross-examined by Senator Graham of the Judiciary Committee, who posed a simple question.

The hypo was this: “If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?”

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