Were this Presidential election restricted to law school, Mitt Romney would fail Ethics and Barack Obama would fail Moot Court. Unfortunately, the Professors dispensing these grades are not the Professional Responsibility and Appellate Advocacy faculty, but rather a large percentage of 308 million Americans who bother to register to vote and who will actually show up on November 6 to cast their ballot. And as far as tuition is concerned, both candidates are the recipients of full ride scholarships that would make even Law School Deans blush, plus stipends for jets, campaign staffs, ad buys, et al., thanks to influence seeking Super PACs as well as corporate and interest group donors on both sides. And then for nostalgia buffs, there are even some individual contributors who are actually concerned about what is best for the overall interests of America. To be sure, the good government donors are, unfortunately, a charming anachronism, but they still deserve to be listed on the annual law school donor report as "friends," despite their ever decreasing influence on the election.
Hanging in the balance is not a potential J.D. degree, but rather the future of a troubled America plagued by debt, Wall Street and corporate fraud and mismanagement, economic underperformance, and compromised governmental elites that range from a Do Nothing Congress to a bloated TSA (They're Standing Around) bureaucracy who increasingly seems to be using its access to air travelers' luggage for nefarious purposes (Five Finger Concourse Discount On iPads Anyone?) Throw in a quickly changing global landscape that ranges from the fanatic excesses of the Arab Spring to an emerging worldwide middle class vying for the life style and finite resources most Americans have come to take for granted and you have all the ingredients for an uncertain future. And finally, there is the stark fact, seldom if ever acknowledged, that despite daily calls for fundamental reform necessary to preserve the American way of life, nobody really wants to give up anything when it gets right down to it.
Oh yeah, and let's hear it for the troops. That is until they come back from Afghanistan minus an arm or leg, thanks to the Taliban or our allies (it is kind of hard to distinguish between the two lately) wanting federal V.A. benefits or a job. Are these people Patriotic Protectors or Dependent Government Employees? I suppose a lot of it depends on who you listen to on cable television and talk radio. I would submit that however they are characterized, at the end of the day, they are people who deserve to be treated as such.
So much for orthodoxy, let's consider the candidates. The Republican challenger, Willard "Mitt" Romney, strikes me as an ambitious and intelligent law student who comes from a well to do family of lawyers spanning multiple generations (read politicians). Success for him in law school and beyond is a given. His primary goal is to "Be" something rather than to "Do" something. His privileged background makes him uncomfortable around other students who might be the first in their family to go to law school. Mitt is the kind of guy who has aspired to the United States Supreme Court (read the Presidency) since the fifth grade. He learned a long time ago to tell people exactly what they want to hear. That means that his favorite course is Torts. But in Property, he tells the professor that his first words were not Mommy or Daddy, but rather, Fee Simple Absolute. If the professor prefers to lecture, Willard sits attentively but mute. But if the professor wants classroom participation, Mitt turns into what is derisively known by some as a "Spring Butt" or a "Gunner." This type of student always has his hand in the air waving manically to attract the professor's attention. Do any of you former law students recall a former classmate matching this description?
As far as his approach to law school, student Romney understands that success built on pragmatism requires a situational approach to life. Recall when he sought Senator Kennedy's seat in Massachusetts he tried to run to the left of Teddy, complete with being a confirmed Pro-Choice, Pro-Gay Rights candidate. As Governor of Massachusetts, he implemented omnibus, universal health care reform that was to be his legacy, the centerpiece of which was the personal mandate that everyone buy health insurance. But when seeking the Republican Presidential nomination last Spring, he ran to the right of Rick Santorum, Rick Perry, Newt Gingrich et al. with a perfectly straight face. Suddenly, what used to be Romneycare is now Obamacare. Mitt promises to repeal it on his first day in office. I didn't know Executive Orders were that handy. Now with nomination in hand, Mitt is suddenly a reasoned moderate. After all, you don't make A's in Torts and Property without each one being your favorite course, each professor being your favorite professor, and doing what is necessary no matter how oily and unseemly. Secretly, of course, Contracts is and always was Willard's favorite course. In the end, winning is everything, period.
This brings us to Mitt's Ethics grade. As all lawyers know, there is a Truth Continuum ranging from The God's Honest Truth on the upside to Dirt Road Fraud at the opposite end of the scale. (Note: the term Dirt Road Fraud was coined by the late George Hewes of the Brunni firm. As far as I am concerned, this is a negative superlative that says it all). In descending order from The God's Honest Truth is Superior Information and Business Acumen, Silence, Permissible Non-Disclosure, Misleading Statements, Impermissible Non-Disclosure, Concealment, Misrepresentation, Fraud and Dirt Road Fraud. The downside of terminal pragmatism and winning at all costs is that all these terms start to run together after a while. That is not good for any would be lawyer, but it has disbarment proceeding written all over it once you are sworn in and start representing real clients (read The American People).
Unfortunately for the potential client, I suspect that Mitt uttered the God's Honest Truth at the Boca Raton Fundraiser when he advised those who paid $50,000 admission that 47% of Americans were devoid of personal responsibility and dependent on government for everything. It is kind of ironic that it was one of the low wage 47 percent servants who taped Mitt and smuggled it out to the media right after he filled the Plutocrats wine glasses. (At least he had enough initiative to do that much). Of course, now Mitt says it's not true, he really cares about everybody. It is kind of like telling the law review that footnotes are your favorite thing only to be overheard by the Moot Court Board Chairman forcing you to suddenly choose oral argument as your favorite past time.
Black's Law Dictionary has dedicated an entry to former Governor Romney, to wit: "Res Ipsa Loquitur" or "The Thing Speaks For Itself"… if it speaks at all. For example: 'I'll close loopholes and deductions to balance the budget." "Which ones, Mitt?" "It's a Secret." Can you say Character and Fitness Committee?
And then there is law student Obama. He is the first in his family to go to law school and is smart as a whip if not a little aloof. A likable guy who likes to play basketball, he astounded his law school class by running for student body president as a 1L and winning; unprecedented to say the least. His platform was a guaranteed curve with B as the lowest grade. There would also be the abolition of being called on in class and free beer every Friday afternoon. It sounded particularly good following the tenure of a tyrannical dean, several overzealous, mean-spirited professors and a collective 2.12 law school GPA (read Bush, Cheney and Rumsfeld). And as welcome as the message of hope and change always is in tough times, it got 1L student Obama elected President of the Student Body. But now, even with the Dean retired and the demanding faculty members visiting away at different California law schools, the enthusiastic Student Body President has overdrawn the student activity fund on beer together with a newly established, unfunded Student Legal Defense Fund necessitated by five law student DUIs, all on Fridays. The Student Body President also failed to convince the Dean and faculty to install a B curve. As he seeks reelection, law student Obama looks tired. Hope and change didn't exactly pan out. The new Dean turned out to be worse than the old one, while the new visiting faculty members not only call on students, but require that they stand to recite. To quote B.B. King: "The Thrill Is Gone" for Student Body President Obama. Now he just wants a clerkship with any law firm who will have him. He seems to have lost interest in what he has been doing and is actually looking forward to taking the bar exam. Based on the first Presidential Debate in October, does any of this sound familiar?
So, who wins in November? It is still a toss-up as of this writing in mid-October. The only thing I know for sure is that life often imitates law school, but it takes someone who has been through the rigors of a three year legal education to fully understand that. Unfortunately, there are 307 million plus voters that never had the privilege of surviving Torts, Property, Contracts, Ethics or Moot Court. As a cut rate fortune teller at the Fair recently predicted, "We shall see what we shall see." And that is what scares me the most.