Last year, a Columbia University Law student contacted me because he had prepared conscientiously for his law exams, but all his first-semester grades were B+ thereby slotting him in the middle of his class. In a class of very able test-takers, the approach we took in coaching was to ask: How can I make my exam paper and arguments stand out from the rest? We worked together towards the objective of determining what each of his professors expected for a standout ‘A’ grading.

So, what does a standout ‘A’ law argument look like? While 5,000 law professors vary significantly in their expectations for ‘A” grading, most professors would agree that the argument below compels such grading for a particular type of exam problem.

This argument presupposes an apt element-centered knowledge and understanding of larceny, robbery, and felony murder—but all that is plainly insufficient.

You also need cogent issue-spotting and law-exam writing skills that result from your semester-long practice. This argument exemplifies the law-exam ideal of “no extra words.”  In the ‘A’ argument, every word counts.

Notice, too that the argument is an example of a complex exam-writing format. It is a multi-step argument that focuses on one overall issue that is then unfolded into multiple steps. This short criminal-law problem and responding law exam argument is from my book, How To Do Your Best On Law School Exams, p. 104.

A Criminal-law Problem

(30 minutes)

A lends her car to B, a friend, who fails to return A’s car even though A repeatedly asks B to return it. One night, A goes to B’s house, sees her car on the street and decides to reclaim it. As she unlocks and opens the car door, B bursts out of her house, grabs the open car door, and remonstrates with A about everything B has done for A in the past. Since B continues to hold the open door, blocking A from getting into her car, A gently shoves B away. Unhappily, B falls, hits her head and dies. The police arrest A for felony murder for an accidental killing during the commission of dangerous felonies, stealing the car and robbery. The district attorney asks you, an intern, to analyze A’s liability on these facts.

A standout argument

A not liable for felony murder

The main issue is whether A, who “gently shoves B” to regain her car, is liable for this form of murder when B falls and dies. Felony murder requires a killing, intentional or accidental, in furtherance of the commission of a dangerous felony or in immediate flight there from. Larceny, the claimed “stealing” of the car, is not such a dangerous felony that triggers felony murder liability when B accidentally dies. In addition, robbery, which is such a dangerous felony triggering felony murder liability for an accidental death in furtherance of its commission, does not apply. Robbery is the use of actual force, or the threat of force, in the commission of common law larceny (“forcible larceny”). This form of larceny requires a trespassory taking of the property of another with the intent permanently to deprive the owner of possession.

Here, A cannot steal her own car (it is not the property of another) and thus there cannot be any trespassory taking of it. Without these elements, there is no larceny, and without the larceny, there is no robbery. Without the robbery, there is no felony murder.

The additional required rule is that A can use reasonable force to recapture her property—a “gentle shove” easily qualifies, and the fact that death results does not retroactively transform it into a culpable use of force. B’s death is a tragedy but not a murder or manslaughter.

Comment

Please note that the given facts and relevant rules authorize only one-way argument, unlike other facts that require two, or even, three-way arguments. To argue two ways on these facts and relevant rules is as much a blunder as arguing one-way with facts and rules that require two, or even, three-way arguments. Nor is the argument simply applying law to facts as is sometimes erroneously recommended. Rather, the point is applying rules to facts for advocacy argument.

All courses have the potential for exams problems that require different forms of step-by-step unpacking. For a classic constitutional law example, see the ‘A’ student argument in “Let Them Eat Cake” (Exams, pp. 153-154). For a challenging contract example, see the ‘A’ argument in “Olivia Warbucks” (pp. 138-143). And for a civil procedure example, see “Blowing in the Wind” (pp. 150-152).

If you have a comment or question, feel free to email me; john@johndelaneypub.com

Professor Delaney

Outlining with rules and examples method

From learning rules to outlining your course

As you know from a previous post, learning rules and their elements with iconic examples is foundational to all your learning and exam preparation. (see my 2/9/12 blog: What can I do differently this semester to improve my law exam performance? Try learning rules with iconic examples. )

Do you see how learning rules with iconic (and other) examples can lead to outlining the entire course with each rule and its related policy and examples on a separate index cards?

Outlining your course is just the “learning rules with iconic examples “ method writ large. Review the details below for implementing it. I suggest outlining by creating an actual or virtual index-card compilation of all the key course rules organized systematically into categories and sub-categories.

Outlining of each course — including iconic and other examples of rules, principles, and policies — arms you with the doctrinal knowledge and understanding you need, and at the same time, with practice in most of the required exam skills: extricating red-hot facts, issue spotting, selecting the relevant rule, and the use of policy as appropriate.

Sequencing of your index cards — building from basics to complexity

Considering each professor’s priorities and legal language, systematically extract each rule from her class presentation and from assigned and other materials that specify the rules she emphasizes.

In applying this outlining method, for example, to learning tort negligence — a challenging rule — your first index card should specify its basic elements as your professor taught it (since language can vary somewhat from professor to professor).

Tort negligence requires as elements:

(a) the existence of a legal duty owed by the defendant to the plaintiff;

(b) the specification of this duty in a standard of care, usually reasonable care;

(c) behavior by the defendant in breach of this standard which;

(d) causes, both factually (but-for) and legally (proximately);

(e) actual harm to the plaintiff [1]

On the same side of the index card, briefly specify the policy purposes served by this rule. For example:

•  compensate victims for unreasonable and harmful behavior of others

•  fairness to such victims

•  deterrence of future negligent behavior

On the other side of the index card, set forth some iconic examples of facts to which the rule clearly applies, as well as a few counter-examples to which the rule does not apply because they embody intentional harms, and also a few in-between examples.

Iconic examples

• A, driver, takes her eyes off the road while talking with a passenger in the car’s rear seat, and hits and injures B, a pedestrian.
• C, a camp counselor, directs the children to shelter under a lone tree during a lightning storm; lightning strikes the tree and injures three campers.
• F, a construction foreman, fails to adequately inspect a construction elevator that malfunctions and injures a visitor.
• S, a coal mining company, fails to provide basic emergency equipment to protect miners from methane gas, resulting in death and injuries to miners.

Counter examples

• A drives his car and intentionally hits B.
• B, a camp counselor, intentionally and falsely tells a camper’s mother that her son died in an accident, thereby causing the mother severe emotional distress.

In-between example

• A, a lifeguard, is distracted from a drowning swimmer by his reading, listening to music, and his flirting with an-off duty lifeguard. Negligence or gross negligence?

After this initial card, envision each element above, (a) through (e) as a subtopic for card making. Then, systematically extract the rules as laid out above for each subtopic. You will have few cards covering the subtopic of factual (but-for) causation, but numerous cards covering the subtopic of legal (proximate) causation. The reason may be apparent: factual (but-for) causation has only a modest number of issues while legal (proximate) causation is complicated and challenging with many issues, so your professor will probably spend modest class time and assignments on factual causation while devoting a great deal of energy and time to the complexities of proximate causation. It is just common sense to make her priorities your own in card making as in every step in exam preparation.

One caution: Using commercially produced outlines and cards is less effective than learning from your own card making and reviewing. In contrast to the commercial cards, your own cards are tailor-made for your professor’s course, language and signature exam pattern.

The danger of atomization — and a remedy

Finally, this first outlining method — where rules, policies, and relevant examples are detailed on index cards — risks atomization. It does not contain a visual portrayal of the entire course, its various topics, subtopics, and the possible complex connections between and among these parts. This limitation can be remedied by a chart that highlights how these parts (say, offer, acceptance, consideration, breaches, remedies in contract) fit together and show connections between and among such topics and their sub-topics.

(I summarize this first (of three) outlining method from Chapter Three of my How To Do Your Best On Law School Exams).

Identify the exam problem type(s) given by each professor

Law professors often present different types of essay exam problems and have different expectations for awarding A’ grades. Identify and concentrate on their choices from their old exams, especially any model answers or examples of ‘A’ exams. The major types are set forth below. Each professor typically has a signature pattern that can be identified early and practiced during the semester.

Type One Exam Problem: Paragraph-based multi-issue problem

By far the Type One problem is still the most common type of law exam problem. It is the classic multi-issue problem, detailed often in a dense fact pattern of one or more pages, presenting a number of parties in a series of paragraph-based mini-problems that are sometimes only loosely tied together and aggregated with a pointed question at the end (e.g., “What charges would you bring against X, Y and Z?” or “What remedies would you seek for A, B, and C?”)

While most of these multi-issue problems raise four to eight issues, some teachers detail an extreme version with even more issues. Or you may see a short version with only a few issues and less allotted time. Time pressure, often 50 or 60 minutes, adds to the challenge of spotting the issues posed by the fact pattern and writing concise and cogent arguments to resolve each issue.

To illustrate this most popular exam type, see in my How To Do Your Best on Law School Exams the “Mary Lee” tort problem (p. 114), and my own “Speluncean Explorers” problem for a criminal law exam at the New York University Law School (pp. 123-124).

Type Two Exam Problem: An overall multi-issue problem and question

The Type Two problem is also a multi-issue problem, but is not paragraph based: you simply cannot mine the separate paragraphs for separate issues. Rather, and in pointed contrast to the Type One approach, you must consider the problem as an overall entity, and then unfold it. Often, the overall issue is an actual or virtual professorial gift (e.g., “Would it be constitutional for New York Courts to assert in personam jurisdiction over D?”), so that the issue-spotting challenge is instead to unfold this broad issue into its sub-issues.

Especially in many contract exams, to spot the issues raised by such a problem requires assessing the back-and-forth paragraphs, rather than simply one paragraph at a time. Do not be misled by erroneous advice that all multi-issue essay problems can always be divided into autonomous paragraphs and then separately mined for paragraph-based issues. They can’t.

For illustrations in my Exam book, see the contract problems (pp. 137-138; 144), and the constitutional law problem (p. 152).

Type Three Exam Problem: Policy Problem

The Type Three problem contrasts markedly with the above two most popular types of multi-issue problems. It is the policy problem. Often, it asks you whether an existing or proposed legislation, rule, principle or practice should be continued, abolished, changed, or adopted, and requires you to specify the policy reasons for and against said proposal and your choice for or against it, with your supporting reasons as the heart of the argument. You could also be asked to draft legislation relating to, for example, so-called tort “reform” or changing sentencing guidelines. The possibilities are almost endless.

Since your task in such problems is specified, there is ordinarily no issue-spotting challenge, but you do have to embrace your assigned role in responding, including argument making from a distinctive perspective, usually as a lawyer, trial or appellate judge, or legislator. For an illustration, see the policy problem on p. (133).

Type Four Exam Problem: Legal issues that spring from but transcend the facts

The far less common Type Four problem also contrasts markedly both with the Type One and Type Two multi-issue problems, as well as the Type Three policy problem. Although triggered by facts, the issue posed is purely legal, rather than the fact-centered issues or the policy-centered issues posed by the first three types of problems.

Consider the following example: when a person is arrested for using vulgar words to a police officer, the issue may be framed as whether a statute criminalizing “offensive words” violates the First Amendment guarantee of freedom of speech? With this broad issue framing, though triggered by the particular facts, you respond with a more abstract level of argument than you would if the issue were only centered on the facts and harm posed by the specific case.

Conclusion

Don’t be intimidated by the challenge here. Sure, Chapter Four in my Exam book that details all the types of problems is dense because I intend the Book to be comprehensive. But you may discover, for example, that a particular professor only gives type one or type two problems. It’s always a micro reality: what does each professor present and expect. And keep in mind that legions of students have developed the skills to traverse this terrain. You can too.

Try learning rules with iconic examples.

Don’t learn rules abstractly — they have no meaning without facts. Why? Rules are meant to apply only to a limited range of fact situations. They are fact specific. Your iconic fact examples should therefore very roughly attempt to illustrate the accepted range of fact situations to which the rule applies — the scope of coverage created by the rule. It is also useful to learn each rule with at least a few counterexamples that illustrate fact situations that are beyond the accepted coverage of the rule, and an in-between example or two that triggers two or three issues Since all rules embody policy interests, remembering the specific interest(s) that is served by each rule promotes the deeper understanding that drives issue-spotting and argument-making skills. Indeed, most professors teach rules as policies writ specific and reward your apt exam use of policy-supported rules.

If you remember rules with iconic fact examples, there is a modest chance that you will see some of these examples in the exam problems, but there is an excellent chance that you will see similar fact examples in them. It is an exciting feeling of recognition. These key facts trigger issues.

Since you see such fact examples on exams, this method of studying and remembering rules matches the form of the exam: from facts to issues and rule application that is embodied in a series of concise cogent arguments. Remember, you are typically given a dense fact problem and you must identify (spot) the legal issues and determine which form of tort, contract, etc., applies, if any, and you must apply the correct rule(s) by interweaving each element with the key facts. In your practice daily after class, you should learn each rule taught that day with such examples. If you do so, you will gradually empower yourself to quickly spot exam issues and resolve them with the concise cogent arguments that get the best grades. One example follows from my How To Do Your Best On Law School Exams (pp. 17-21).

RULE: DEPRAVED HEART MURDER (also called extreme-recklessness murder or willful and wanton murder)

ELEMENTS OF RULE
(1) Act committed with extreme recklessness/
(2) under circumstances evincing depraved indifference to value of human life/
(3) and which causes/
(4) death of a human

ICONIC EXAMPLES
• A shoots into an occupied car, bus, train, or house, or drops
boulders off a roof on a crowded street. B dies. A was trying to
miss in shooting, etc.
• A poisons B’s food but a waiter eats it and dies.
• A sets a zoo lion free to scare the public on a crowded Sunday. B
dies.
• A sets a bomb in a public place. B dies.
• A places heavy lumber on train tracks just before a scheduled
train arrives. B dies.

POLICY
Interest protected: safeguard life from extremely reckless conduct threatening death.

COUNTER-EXAMPLES
• A shoots and kills B with intent to kill (it’s then intentional murder).
• A, a doctor, installs artificial heart in B knowing that otherwise B  is virtually certain to die within a week or two.     B has acute heart disorder and is close to death (risk is justifiable). B later dies.

IN-BETWEEN EXAMPLES
• A, who has sometimes threatened to kill B, kills him while demonstrating how his new pistol works (facts are        ambiguous: did A intend to kill B or was B’s death accidental, negligent or reckless).
• A plays “Russian roulette” with B who dies during the game (depending on factual context, may be argued as   depraved heart murder or reckless manslaughter).

First semester grades are not your destiny in the Spring exams. I know: I’ve seen students substantially, even dramatically, improve their grades during my three decades of law teaching at two law schools, the NYULS and the CUNYLS.

Your first step is to identify your strengths and weaknesses in each exam in which you received a disappointing grade. To do so, you politely tell each professor that you studied hard, were disappointed in the exam result, and you want to improve your performance in the Spring classes and exam. You therefore would like to compare your exam paper with an ‘A’ paper. Many professors will allow you to do so. If the professor is especially agreeable, you might then ask if you could compare your paper with a second ‘A’ papers since there are often different paths to an ‘A’ grade.

In this conversation, it is important to be straightforward, professional and friendly, and not to say or imply that you are critical of the professor’s exam or you want to “appeal” your grade. Most schools prohibit such appeals.

If the professor agrees to such review, the second step is to be open to differences between your exam paper and the ‘A’ paper. Check initially for the obvious differences in the number of issues spotted and resolved in arguments. Did you simply miss important issues? Is that the main reason for your low grade?

Then, without being defensive, look closely for qualitative differences between each of your arguments and the matching ‘A’ arguments. Are your arguments as cogent, as compelling, as the ‘A’ arguments — do they incorporate your professor’s class themes, priorities and language, or did you mostly ignore them? Is your interweaving of elements of rules with key facts as accurate and complete? Do your arguments have the depth of the other arguments? Do those arguments, unlike yours, sometimes apply policy to buttress rule application?

Be open to the reality that professorial expectations for an ‘A’ grade often vary and avoid “one-size fits all” expectations. Occasionally, professors can be impressed by your diligence and desire to improve and offer to discuss weaknesses in your paper. Seize such opportunities. And always thank each professor for his or her help.

Do you appreciate how this comparison is the first step in your struggle to improve your Spring grades? Other steps spelling out how to focus on your Spring professors’ expectations and their exams will follow.

Do you always argue two ways on law school exams?

There is persistent confusing advice about whether a student on a law exam should always argue two or more ways. Much of the “expert” advice is inaccurate and misleading, catapulting partial truths into unwarranted one-size-fits-all generalizations. Indeed, most of it fails the pertinent test: have you dialed into each of your professor’s wavelengths and verified what he or she actually expects? It’s a micro empirical question, not a macro conceptual one. Professors vary greatly here as on other matters. The following analysis of this question is extracted from page 72 of my How To Do Your Best On Law School Exams [revised Feb 2012; pages 69 and 70 in earlier editions]

Avoid any automatic “claim-and counterclaim” approach

Avoid any automatic “claim-and-counterclaim” approach to issue spotting and argument making.  At the unfounded extreme, some students believe they must invariably argue the claim-and-counterclaim approach with each element in a rule that they are applying. Such belief is utterly misconceived and misleading and will hurt you on law exams. The facts sometimes spell out a defense or counterclaim to an element and sometimes do not. You only argue such a defense or counterclaim when there are facts to support your argument, and there is nothing automatic about it. Moreover, study of countless exams reveals that you generally argue only one element in the applicable rule, not every element; the remaining elements are usually not at issue. Remember always that the facts, considered in light of the relevant rules and your professor’s expectations, are sovereign and determine which issues you do and do not raise and which you argue one, two or more ways.

Where the issues point to rules that are open-ended, elastic, even clay-like, do not be surprised that the back-and-forth arguments may resemble Republicans and Democrats in election heat. Many fact patterns that raise such claim-and-counterclaim issues can be argued both ways because of the open-ended character of the relevant rules. Examples include such rules or standards as “the best interest of the child” in custody cases, “equitable distribution” in dividing martial property in divorce cases, “reasonable accommodation” in disability cases, and, indeed, any standard, rule, test, or principle that incorporates such words as “equitable”, “just”, “fair,” “proper,” “reasonable,” “undue,” “material,” “intent of the voter,” and many other comparably open-ended terms.

Constitutional standards, usually labeled as “principles” because of their foundational status, often lead to two-way argument. Examples include the First Amendment guarantees of freedom of speech, press, assembly, association, petition, and religion; the Fourth Amendment prohibition of unreasonable search; the Fifth Amendment guarantee of due process; and the Fourteenth-Amendment guarantee of equal protection of the laws.

But even if the applicable test is not open-ended or a principle but more concrete, professors in all courses can nevertheless craft the essay language so that two-way argument is expected, and you may sometimes even be asked explicitly in the interrogatory to argue two ways. Here too, your professor’s class hypotheticals and preferred responses and her old exams should enlighten you as to your teacher’s choices.

And recall that these same teachers as well as others can pose emphatically one-sided facts that call only for one-sided argument. As always, be open and responsive to their choices; go with their exam flow.

The lesson: It is as much a blunder to argue two (or three) ways without a concrete basis in the facts, relevant rules and professorial expectations as it is to argue one way when the facts  rules and such expectations call for two (or three) way argument. One professor called back-and-forth arguing without a basis in the facts, rules and professorial expectations, “ping-ponging.” It’s not meant as praise. On this issue, as others, you must dial into each professor’s frequency as revealed in classroom dialectics, assigned materials and especially her old exams and any old model or ‘A’ student papers. Verify her expectations. Always individualize!

Professor John Delaney (retired)

Law exams that require students to make the best arguments best prepare them for practice

As a law school exercise, “getting to maybe” problems and arguments are justifiable as a professorial pedagogical choice. Indeed, in my book, How To Do Your Best On Law School Exams, I include an example, a challenging multi-issue contract problem with mostly getting to-maybe responses to a practice exam problem from a NYULS contract professor I knew who taught it forever and co-authored a leading casebook.

But it’s important to realize that getting to maybe is just one professorial exam choice — and almost never what lawyers actually do in most practice arenas. Certainly not in trials or appeals; not in negotiations; not in writing contracts, wills, or real estate agreements, not in separation or divorce agreements; not in mediation or arbitration; not in commercial, non-profit or public policy practice (including legislative work or in representing villages, towns, cities, state or federal agencies or in litigating against them); and definitively not in the pervasive and hard-fought compromising that lawyers routinely perform.

Clearly, what lawyers do is not always adversarial (e.g., writing a will), but it’s mostly advocacy of one sort or another. To quote an older law student who had extensive business consulting experience, “people do not pay you to get to maybe.” Indeed, there is a clear ethical obligation for lawyers to advocate for their clients by making all plausible factual and legal arguments.

[Sure, there is a limited exception in that specialized and initial legal memorandum for a senior lawyer about a legal area that is uncertain for her, but surely not in a legal argument advocating for a client about that area.]

Isn’t the reason for this culture of advocacy simply that lawyers in almost any context have a client and are duty bound to advocate for that client? Such advocacy isn’t about getting to maybe: that would violate the lawyer’s duty to his/her client.

[Another exception exists in a lawyer's exercise of the role of counselor in advising on personal, business or governmental decision-making. But more likely even there it's figuring out the choices and then advocating what appears to be in the best interest of the client in a particular situation rather than getting to maybe.]

Additionally, the touch of relativism inherent in getting to maybe arguments is misleading. Lawyers for each side always present their arguments as better than the arguments of their adversaries, and the law provides a decision-making procedure as judges (and sometimes juries) decide which are better in one way or another. And the judge must always decide: no getting to maybe there either. And even if a jury can’t agree on a verdict that also is not getting to maybe. Jurors are saying, in effect, that we can’t agree on a verdict by the criminal law standard of proof beyond a reasonable doubt or the civil law standard of a preponderance of the evidence.

I have a hypothesis about this academic construct. If a teacher has practiced for a substantial time, his/her exam choice of type of problem is likely to require some form of advocacy argument, expecting that students will demonstrate how one argument is better than a second or third argument. But a teacher without such experience can use getting-to-maybe problems and responses as another way to avoid what they do not know well: the world of advocacy skills. That real world requires knowledge and facility in an array of advocacy skills as well as doctrinal knowledge.

I performed many hundreds of trials and appeals and years of public-policy practice before teaching, so naturally my exam problems always resulted in advocacy arguments of one sort or another (including a good many policy arguments). And I often expected two or even three arguments in response to an issue with one argument usually preferred but the others arguable in a plausible way. But I can’t ever recall creating a problem whose preferred response was getting to maybe. It’s not about the false choice of a culture of certainty or a culture of getting to maybe. That’s a clear either-or fallacy. Rather, it is about a culture of robust advocacy, of doing one’s very best, for each client in endlessly varying circumstances.

One warning: follow each professor’s choice here as always. If he/she indicates in class or old exams, as some do, that getting to maybe is what is expected, you, of course, follow that dictate for that exam but expect that in your career you may never be asked to get to maybe in most legal tasks.

Professor John Delaney (retired)

Critics of hate crime legislation espouse a mistaken view of the criminal law. To illustrate, one critic argues as follows:

The idea of a “hate crime “asserts that hatred itself is criminal and deserving of punishment.

But our criminal law does not single out any mental state at all as criminal. It punishes no thought no matter how detestable, how horrific. Why? One response is that the First Amendment, in guaranteeing freedom of expression, also shelters our thoughts from governmental intrusion. No inquiry into our thoughts alone is authorized: the criminal law has no jurisdiction here. This realm is private and for priests, ministers, therapists and others, but not for the police and prosecutors.

But when certain thoughts inspire and express harmful behavior prohibited by criminal statutes, then the police and prosecutors are authorized to intervene. Our freedom of thought has erupted into actual or imminent harm to others and is no longer sheltered.

In traditional criminal law language, a core crime must have a particular mens rea (evil mind) that is expressed in an actus reus (evil act); e.g., intent to kill or injure that is then embodied in an act of killing or injuring. The prohibited intent alone is insufficient for culpability: it must also be exemplified in a prohibited act. The two closely linked elements are essential for culpability.

To illustrate, if A, while driving to B’s office to kill or injure B, accidentally kills or injures B who is walking alongside the road, A is not liable for murder or assault. His act of killing or injuring did not express his intent. This would be true even if at the moment of striking B. A was renewing his intent to kill or injure B later at his office. This criminal law requirement is sometimes called a “unity of act and intent” or “concurrence.” [Liability for attempted murder not discussed.]

Applied to hate crimes, the intent to kill or injure infused with hatred must be expressed in an act of killing or injuring to establish culpability. And this hatred is usually expressed, isn’t it, in racist, homophobic, religious, ethnic or other vile epithets. The hatred is usually not hidden: it accompanies the killing or injuring and is often emphatic, as clear as lightning.

One final thought. As Stalinist and fascist societies embody their values into their criminal laws, our evolving democratic values infiltrate into our criminal law. It is no surprise then that our concern for the young and old has long resulted in enhanced punishments for crimes against them. And no surprise now that our laws incorporate particularized protection for those prohibited acts inspired and accompanied by expressions of racial, homophobic, ethnic, religious and other hatreds. While there’s much more to the topic of hate crimes than presented here, this insight is an important beginning.

John Delaney

Shouting down speakers and disrupting meetings on public issues is profoundly anti-American because such behavior violates two fundamental First Amendment rights.

The first is the iconic right to free speech, a right of all Americans to robustly express their ideas, opinions and criticisms. Indeed, the sweep of the First Amendment even protects speech that is hyperbolic, highly emotional, provocative, foolish, false, and even worse. Free speech is at the heart of our democratic way of life and underpins many other rights. President Eisenhower elegantly expressed it, “…in a democracy debate is the breath of life.”

Shouting down speakers currently prevents us, for example, from learning the vital details about how the various Congressional health care proposals deal, for example, with the 46 million Americans not covered by Medicare, Medicaid, the Veterans Administration, the Child Health Insurance Program, and other programs. Shouting down speakers also undermines discussion about the tens of millions of people with health insurance that is inadequate on its face or that almost routinely results in initial refusal to pay for needed care (called “medical losses” by the companies), that cancel care after someone has had expensive care or refuses to pay because of a dubious claim of a “prior existing condition,” and that has a few million workers trained to give priority to rejecting claims and shifting costs to other providers or the claimant.

The right and ideal of free speech is beautifully portrayed in the New England artist Norman Rockwell’s painting that portrays a middle-aged man in workmen’s clothes speaking with much feeling and seriousness at what appears to be a crowded town meeting. Those sitting around him in suits are listening with respect. They may not agree with him — but they listen attentively.

Shouting down speakers and disrupting meetings on public issues also violates the First Amendment right of assembly, another iconic right. Such behavior is also profoundly anti-American since it undermines the right of Americans to meet, discuss, plan and organize about all sorts of issues. Imagine, for example, what these two fundamental rights have meant in the struggles by women, Latinos, the disabled, workers, gay people, and so many others of all political persuasions. Imagine what they meant to Dr. Martin Luther King and other civil rights activists and supporters who partly through free speech and endless meetings and protests enabled America to end the racist caste system that systematically violated our ideals, debased us as an honorable people, and weakened us in the world.

If we want others to respect our exercise of these rights, there is a duty on all of us to respect the exercise of these rights by others, especially those with whom we strongly disagree.

John Delaney

The terrifying sight of two military officers in dress uniforms and solemn look marching down often mean streets seeking an address for a family notification of a death of a soldier inspired this poem during the Vietnam War. It applies today as well. By the way, I’m a former infantry officer and Army Ranger (in peacetime).

Pass On

Bearer of death’s tidings to soldier’s kin
Stalk not mean streets
Shreik not in hearth’s serenity
Let our soldier sons live

Beribboned, bedecked with glories past
Your acquaintance unmet
Your knock unheard
Let our soldier sons live

Pass on bugler from carnage field
Still your dirge
March to another rhythm
Let our soldier sons live

Would that, like Persian kings,
we could dispatch you
And by so dispatching
Banish the tidings
Restore time
Resurrect our fallen to life

Pass on

John Delaney
1971-1972