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昕 戴

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理水

So long lives this and this gives life to thee
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June 13

Judge Everett

没上过这位老法官的课,只是听不少同学抱怨过他年纪大了讲课不清楚。除了所有人都知道的那些正事轶事(诸如是本地大户根深叶茂什么的)之外,对他也没有更多了解了。只是三年里不多的个人接触当中,觉得这是一个特别和善的老爷子。还记得第一年那会儿参加mock trial正好是他做法官,trial是晚上搞的,显然老头儿很乏了,坚持到最后连等陪审团出verdict都差点忘了。可是第二天在图书馆迎面碰见,老头儿还是笑容可掬颤颤巍巍地伸出手,拍拍肩膀,把前一天晚上已经说过的鼓励的话再重新表达一遍。最后一次见到老法官就是法学院的毕业典礼了,老师们坐在台上,他坐在老师当中最前面一排,每个毕业生上台受了佩带之后,下台前都会正好经过老头儿面前,包括我自己在内,只要有学生目光转向他,他就会欠起身来握手祝贺。那天老师们退场的时候看见他走路一瘸一拐的成都似乎比平时还要更严重,但南方老绅士那种最经典的和蔼欣然的表情完全没变,我想也没有人会想到一月之后人就已去了。不过老爷子已届八旬,也算是喜丧,数十年中既当法官又当大学教授,加上家底殷实,在这南方小城论起社会地位和富足想来都难有他人可比,应该也不会留下太多遗憾、而只令旁人羡慕了。

老法官四月份曾经给法学院的学生群发邮件,呼吁大家在离开杜兰姆之前都要去本地的古迹Bennett Place看一下,因为此处是当年内战南军受降之处,他的父亲和他本人都曾为保护这处遗迹向州政府和联邦政府做了不少游说,还计划明年内战结束145周年的时候邀请总统过来演讲。八月份离开前,我想我会去看一下。


The Honorable Robinson O. Everett, 81

Robinson O. Everett, Duke University professor of law and senior judge of the United States Court of Appeals for the Armed Forces, passed away during his sleep on June 12, 2009. He was 81.

Everett was one of the country’s most prominent and respected authorities on military justice. He served on the U.S. Court of Appeals for the Armed Forces for 10 years as chief judge. His work as counsel to the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary in the 1960s helped lead to legislation that modernized the U.S. military court system.

A beloved member of the Duke Law community, Everett served on the school’s faculty for 51 years. He taught courses in military justice, criminal law, sentencing, and criminal procedure. He taught his last class during spring 2009. Throughout his tenure at Duke Law, he was a kind and cheerful presence and a warm, caring mentor to students, many of whom got their first jobs with his help or sought his advice on life and work in the law.

“For so many Duke Law alumni, Judge Everett is Duke Law School," said David F. Levi, dean of Duke Law School. "He embodied the qualities of leadership and service in and through the law. He was a model of the citizen-lawyer. He made a difference to his community, his profession, and his country. His distinguished career as a law professor and judge has been an inspiration to faculty, students and alumni at Duke Law School for over 50 years. We will all miss his ready smile, his generosity of spirit, and his inexhaustible supply of ideas for new projects and new opportunities for students and for this Law School.

“Robbie had friends and admirers all over the country,” Levi added. “Even before I came to Duke, I had heard that Judge Everett was a hero to many in the field of military justice. Once I became dean, I was struck by how many of our alumni also looked to Professor Everett for guidance and for example. The legal profession has lost one of its most distinguished members, and we have lost our great and good friend.”

A Durham native, Everett was born on March 18, 1928, to two prominent local attorneys, Kathrine R. Everett, one of the earliest women graduates of UNC Law School (Class of 1920), and Reuben O. Everett, one of Duke University’s first law students (Trinity Class of 1906). He graduated from high school in 1943, attended Phillips Exeter Academy for one year, and in June 1944 enrolled at the University of North Carolina. Later, he transferred to Harvard University, where he was a Wendell Scholar and received his AB magna cum laude in 1947, at the age of 19.

In 1950, Everett graduated magna cum laude from Harvard Law School, where he had served two years on the Harvard Law Review. Everett began teaching at Duke Law School shortly after graduating from law school; at 22 years old, he was the youngest person ever to teach at Duke Law. He became a full-time member of the faculty in 1957 and gained tenure in 1967. In 1959, he completed a master’s of law degree at Duke.

In 1951, Everett joined the U.S. Air Force. He served on active duty for two years during the Korean War in the Judge Advocate General’s Department. Upon his release from active duty, he became a commissioner of the U.S. Court of Military Appeals. He was a member of the Air Force Reserve from the day he enlisted as a private in 1951 until April 1978, when he retired as a colonel.

In the fall of 1955, Everett returned to Durham to practice law and subsequently joined a firm with his parents. He often recalled as one of his proudest moments the day in 1954 when he was sworn into the U.S. Supreme Court Bar along with his parents. From 1955 to 1980 he was engaged in private law practice in North Carolina and at various times in the District of Columbia. He also was an officer of and counsel for various business organizations and nonprofit corporations.

His legal practice included administrative law; civil and criminal appeals; commercial real property; commercial litigation; construction litigation; zoning and land-use regulation. Everett also was actively involved in redistricting litigation. From 1992 to 2000 he was a plaintiff and attorney for the plaintiffs in North Carolina’s congressional redistricting litigation; he argued four times before the U.S. Supreme Court in connection with the issue.

In 1956 Judge Everett published a textbook, Military Justice in the Armed Forces of the United States, and throughout his career he wrote numerous articles on military law, criminal procedure, evidence, and other legal topics. As associate editor of Duke’s Law and Contemporary Problems, one of the nation’s most respected law journals, he edited and prepared forewords for various symposia on many topics.

From 1961 to 1964 Judge Everett served part-time as counsel to the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, and from 1964 to 1966 he was a consultant for that subcommittee. During this period he participated actively in extensive studies and hearings that led to the enactment of the Military Justice Act of 1968, which created the position of military judge and formalized the military court system.

In February 1980, President Jimmy Carter nominated Everett to the U.S. Court of Military Appeals. He served as chief judge from 1980 to 1990, when he assumed senior status.

He returned to teaching at Duke Law School full time in 1990. In the classroom, he was known as much for his trademark black suit and yellow tie as he was for his courtly manner and consideration toward students. “I remind students and myself that law is a great profession that provides some wonderful opportunities for service to others and is also a means to a productive life,” he recently said in an interview.

In 1993, Everett founded the Law School’s Center on Law, Ethics, and National Security to support and encourage teaching and scholarly research on national security law topics and to host conferences and seminars in the national security field. His legal scholarship addresses issues relating to military justice, criminal procedure and redistricting, among other topics.

Everett was active in a leadership capacity in the North Carolina Bar, the American Bar Association and other local, state, and national bar organizations, and in the Durham community. He was a commissioner on Uniform State Laws and in various law reform efforts. A life member of the American Law Institute and of the National Conference of Commissioners on Uniform State Laws, Everett was a director of the American Judicature Society. He served on the advisory committee on the Federal Rules of Criminal Procedure and Evidence from 1988 to 1991, and from 1991 to 1993 he was a member of the Committee to Review the Criminal Justice Act of 1964 (the Prado Committee).

He received the American Bar Association’s Morris I. Liebman Award in 2000, the John J. Parker Memorial Award from the North Carolina Bar Association in 2004, and the Professionalism Award from the North Carolina Chief Justice’s Committee on Professionalism, among many other honors. He was the first recipient of the Judge Advocates Association’s Life Service Award, which is now named for him.

An equally active civic servant at Duke Law School, Everett served on the now-defunct Private Adjudication Center board of directors and the Law Campaign Committee, and he chaired his Law Reunion Committee. In 1993, Judge Everett received the Charles S. Murphy Award for public service from the Duke Law Alumni Association. In 2008, he was honored with Duke’s A. Kenneth Pye Award, in honor of his 50 years on the Duke Law School faculty. Everett provided substantial financial support to the Law School, taking a special interest in financial aid and student needs. His philanthropy included establishing the Reuben Oscar and Robinson O. Everett Scholarship Endowment at Duke Law School in 2002.

With myriad accomplishments to choose from, Everett consistently stated that his proudest moment was persuading his wife, Lynn McGregor Everett, to marry him in 1966. Everett is survived by Lynn and their three sons, Rob Jr., Greg, and Luke.

Funeral services will be held on Tuesday, June 16, at 11 a.m. at Durham First Presbyterian Church. Inquiries may be directed to the Clements Funeral Home, (919) 286-1224. 

(zz)Shakespear and the Law

Law and literature. At Chicago.
http://uchicagolaw.typepad.com/faculty/2009/06/video-shakespeare-and-the-law-conference.html#more

So entertained by the scenes after a day of bar review... 


  


Talks are also good, as here:


 








June 03

Effective Propoganda 101

Lesson 1: Avoid Self-Ridiculing

If you received your assignment months or even a year ago, have been sitting there thinking as hard as possible how to deal with it, and then get something like this:




Then you should really go f$%k yourself in the corner...

If you don't get it, which is more than likely, here're the hints:
1. Was there anything actually going on when they attempted to make the shots? --Nothing
2. Suppose they did expect to capture something with the camera, but weren't you almost certainly able to make sure that nothing would actually happen anyway?
3. If so, what's the difference between letting them shoot and get nothing, and letting them shoot and get that nothing plus the umbrella-bearing clowns you just lent them? Didn't you just make their photo of the day?

-Institutionalized stupidity. Period.


 



May 26

Sotomayor's "Courts Make Policy" Remark

可大可小,媒体炒作,估计也不至于有什么枪毙的罪过
  

May 24

又剩自个儿了

每次晨光熹微从机场返回,独自开车在空旷寂静的高速公路上,都觉得时间好像停住了,而自己待在这小城已有一百年。
——当然到家后表针又转起来,阔别已久的应试教育就此展开。。。

May 17

五月以来

认认真真写出一篇论文,考完三门期末考,再东拉西扯出另一篇论文,才在五月的第二天长出一口气,算是满足了拿到学位的全部要求。最后一学期的最后一个月几乎是三年里最感觉时间紧张的,索性顺利搞定。上的最后五门课,两门纯粹兴趣,另三门多少有点出于从业准备的考虑——结果不出意外,还是纯粹兴趣的课最有意思,而“从业准备”这事情比较虚,不光是因为受经济危机直接影响至今尚不知道“从业”的具体开始日期,更在于法学院里越是强调“实践”或“经验”的课品位实在相对较低,而且相比于诉讼业务,商业交易方面强调“实践”的课可能更容易被教得乱七八糟。学校的归学校,实务的归实务,在法学院里喋喋不休说什么像商人一样思考是不大靠谱儿的事情,搞人际拉关系总还是要到实践中才能学到学好,而知识框架和分析结构才是真正适合课堂的。由此来看,像Jim Cox这样的老师才更显得难能可贵,几乎所有人毕业去律所做证券业务都说证券规管是三年法学院上下来最“实用”一门课,然而这课一板一眼却几乎把最经典的法学院教学的长处发挥到了极致。如今很多人所谓的法学院和法律实务的脱节,部分是夸大其辞,部分是对教育的过程本身存在误解,但如果法学院,尤其是比较好一些的法学院,为了迎合这种舆论而增加所谓的“实务导向”课程,恐怕才会把法律教育搞得更没有价值。

五月的第二个周末再次毕了业,领到学位证,戴个帽子照个相之类,却发现已经少去了以往照相的热情。第二次毕业感觉最好的是把父母从国内接过来一起参加,看着他们兴致勃勃的时候自己也最开心,而其他的真是觉得就那么回事儿。法学院对所有人来说都不再像大学那样了,往年的话大多数人都志得意满,终于毕业了可以去挣钱了,三年太长,只争朝夕,赶紧闪人还来不及;今年大势不好,绝大多数找到工作的人被延期开工,工作没有落实的人数也比往年大有增加,所以更是多少有点就此别过各求各福的味道,典礼上的笑脸更显得应景了——当然,不要误解,至少在这所法学院,大部分毕业生当下还都不至于为了前途过分愁眉苦脸,只是言谈中你能感受到的兴奋或豪迈确实可能远远少于想象。

五月中旬陪爸妈到华盛顿和纽约游玩儿几日,安排住宿方面颇有失误,还遭遇来美后三年间第一次欺诈,好在事前留了些许后手,虽有损失,未影响旅途。爸妈倒也不怪,顶多是玩笑一句学历越高越被骗,自己虽然也心下检讨,但是嘴上不多提,因为毕业典礼上听Oprah讲“If you are miserable, what good are you to other people”一语很受启发。游玩儿本身倒还顺利,都是自己去过多次的地方,轻车熟路。只是回来的飞机上突然发现已无法想起有多少年没有和父母一起出外旅游了,而下次又不知道是什么时候。如此一想,心思就凝在窗外一团团的棉絮上。这些念想搁三年前大概不会有的,所以这三年变化蛮大。


April 16

Last Class

法学院的最后一节课是个happy ending,英格玛.伯格曼的《野草莓》,有意无意保持孤独而冷淡的人通过开车旅行和梦境理解companionship的重要性,看得我一直忍不住要笑,伸手摸摸脚前做东的同学家那只毛发十分飘柔的狗。但其实孤独不必然苦闷,冷淡不等于冷漠,伯格曼固然比起卡夫卡是俗气了一点,但其真正俗气之处倒不在于强调人性当中必有向阳的一面,而在于对现代性的表现多少还是要落脚到有些脸谱化的批判。那种坚硬与柔软完全融为一体的阴阳鱼一般的内心世界才是真正最难表现的。

April 08

Final Month at Law School

Is absolutely amazing...
Papers.
Classes.
Assignments.
Exams.
Start Date/Deferral/Visa calls and emails.
Tax Forms (amendment too!).
Bar Forms.
Miscellaneous (maybe this "s" shouldn't count...).
...
  

March 12

(zz)Floyd Norris NYT blog: The Supremes Will Decide Which Economics Makes Legal Sense

http://norris.blogs.nytimes.com/2009/03/09/the-supremes-will-decide-which-economics-makes-legal-sense/

March 9, 2009, 5:34 PM

The Supremes Will Decide Which Economics Makes Legal Sense

Last summer I wrote a column and blog item about a bitter argument between two leading lights of the “law and economics” movement, Judges Frank Easterbrook and Richard Posner.

These two judges, colleagues on the United States Court of Appeals for the Seventh Circuit in Chicago, are the heavyweights in trying to apply the lessons of economics to law, and their argument here comes down to which brand of economics you prefer.

(To quickly review the facts of the case, the issue was whether a mutual fund investor could sue a management group that charged far higher fees for managing mutual funds than it did for managing similar portfolios for institutional investors. Judge Easterbrook said no, Judge Posner said yes.)

William A. Birdthistle, a law professor from Kent Law School in Chicago, was the author of a brief filed by several law professors urging the court to hear the case.

He sent me a note today pointing out that the Supreme Court agreed to hear the case, which leaves open the possibility that Judge Posner will prevail.

“The dueling Easterbrook and Posner opinions are a great case study in the clash of classical and behavioral law and economics — Easterbrook assumes a well-functioning market for investment advice, discounts possibly irrational investor behavior, and concludes with a call for greater deregulation of the industry, whereas Posner responds in his dissent with a more behavioralist approach that focuses upon market failures, considers systemic distortions of incentives, and implicitly countenances a role for regulatory intervention.”

The justices know, of course, how the market is doing. “My impression is that, given the horrific state of the nation’s 401(k) accounts these days, any case about whether investors are being bilked should garner a great deal of attention,” wrote Professor Birdthistle.

My suspicion is that any economics that assumes financial markets function well without much regulation is going to be a tough sell in 2009.

The case is No. 08-586, JONES, JERRY N., ET AL. V. HARRIS ASSOCIATES L.P.

March 11

Past Random Writings (3)

“零工资”不见得是好事

 

这个冬天读到大学生愿与用人单位“零工资”签约的新闻时,似乎难得再看到有人出来打抱不平、感慨人才浪费了。中国大学生找工作不容易也不是新鲜事儿,原因一言难尽,但赶上经济形势不佳,习惯的社会心理便在新的背景中为老问题找来一个容易的解释,而这反倒使老问题显得越发理所当然起来。“零工资”在直觉和分析上似乎都不是坏事。现实操作中所谓的“零工资”,应该较多属于企业提供的具有正式聘用前景的毕业后实习或变相实习。直觉上,大的经济环境不好,就业机会减少,大学生刚毕业又是除了一纸文凭要啥没啥,在这种安排下他们可以增长经验提高技巧,而企业又能够控制成本,听起来确实合情合理。而常见的经济分析似乎也说明“零工资”有利于社会经济效率。假设一个大学毕业生张三,到用人单位甲公司应聘。甲公司给张三两种选择,要求其或者先参加几个月“零工资”实习后再正式录用,或者不经实习直接正式录用。对甲公司来说,如果张三未参加实习,正式录用后每月为甲公司创造价值为1000元;而如果经过实习,其经验和技能水平在此期间获得提高,正式录用后每月为甲公司创造价值1200元。据此,如果张三选择先做实习,甲公司在正式录用后愿支付月工资900元;如果张三选择不实习直接正式录用,则月工资只有800元。

我们假设张三选择实习的“机会成本”是120元(参加这几个月实习可能使他放弃了其他收入机会)。从社会效率的角度看,张三选择实习更好,因为通过张三负担的这120元成本,公司多增加了200元价值,张三自己月工资涨了100元,这120元创造出了300元的价值。但对张三个人来说,理性的选择却是不参加实习,因为一旦实习,一方面他自己要负担这120元成本,另一方面他因此获得的工资增额却只有100元。所以,在这个例子中,如果将“零工资”实习看作劳动者的一种投资,那么这种投资从社会效率角度看有利,但劳动者在一般情况下却未必有足够的激励去进行这种投入。然而经济不景气的时候,张三环顾左右,发现自己选择实习的机会成本可能大大降低,他因此或许不再是从前那样“眼高手低”、不屑于“零工资”实习的“天之骄子”,而对于社会效率来说,这倒成了好事。

但从新《劳动合同法》的角度来看,这种“零工资”的操作在法律上受到限制。新《劳动合同法》并没有所谓“实习”一说,正式劳动关系都应签订劳动合同,劳动合同可以规定试用期,但一方面试用期时间有上限,另一方面试用期内劳动者仍然享有同工同酬的权利。换言之,所谓的“零工资”在新《劳动合同法》之下未必行得通。

——这听上去似乎是为反对新《劳动合同法》的论调又输送了一枚炮弹。但其实不然。恰恰相反,对“零工资”借经济形势大行其道加以限制,在直觉和分析上同样有其依据。以往谈及资本主义国家的经济危机,总是讲奶农有大量牛奶剩下来卖不掉,却未曾听闻有谁因此免费派送,反倒是全部倒进了河沟。直觉上,同样是供给过剩,需求不足,大学生却要把不大“卖得动”的人力资源“送”给雇主,这不但不直接解决就业市场上的供求矛盾,而且由于“零工资”并不增加劳动者的消费能力,所以对刺激商品市场也没有太大帮助。而引入博弈论后稍微复杂一些的经济分析则表明,“零工资”在存在劳动者间竞争的情况下,还可能引发浪费性的投资。如果除了张三之外,到甲公司应聘的还有一位李四。甲公司只想在两人之中择一录用。如果两人都选择实习或都选择不实习,那甲公司只好抽签决定录用哪个,而由此每个人都有正好50%的机会获得正式职位。但如果一人选择实习而另一人选择不实习,那么甲公司就会录用选择实习的那位。很明显,既然张三和李四明知公司的心思,则两人都会选择接受“零工资”实习(所谓的“占优策略”),都会为之投入相应成本。但问题是,如果两人都选择实习,他们各自获得正式职位的机会并没有比两人都不选择实习时有任何增加;所不同者,在都不选择实习时,他们各自都省下了为实习投入的成本。因此,从社会效率的角度来看,当两个学生都“放低身价”选择“零工资”实习时,他们却很有可能因此陷入囚徒困境,反倒不如大家都“姿态高一些”的好。

因此,至少在“零工资”变相实习这个问题上,新《劳动合同法》采取的立场或许并不单单是片面强调劳动者权利,而也可能具有社会效率方面的依据。不过新《劳动合同法》并没有把“零工资”的路完全堵死。现实中利用劳务合同绕过试用期限制的做法仍不鲜见,更不消说劳动者本人默认的无合同实习的情况。如果完美执法在人类社会从来都不是一个能够指望实现的目标,我们能做的倒是在这个时候给众多感到机会寥寥压力重重的毕业生多一些信心。毕竟客观形势如此明了,担心他们还是姿态过高怕也多余,而爱唱人才浪费调子的朋友们这时候才最应该出来,正告大家不要矫枉过正,妄自菲薄,过分低估了自己的机会成本。

 

 

 

1221日夜于北京家中