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Years ago, when my daughter Megan was in high school, I made the mistake of mentioning that when I was her age, I didn’t have to learn about the Vietnam War because it hadn’t started yet. She was, understandably, outraged about the unfairness of having to learn 30 more years of history than I had to. We got into quite a debate about how a just God could allow something so unfair in Her universe, but I was at something of a disadvantage, since I was pretty busy being embarrassed that I hadn’t recognized this inequity when I was in high school. But Megan got over it. Not a contentious soul by nature,1 she eventually accepted this as one of the cosmic unfairnesses of teenage life and moved on. Years later, when I decided to mess with my youngest’s head by mentioning this academic disparity to her, she merely looked at me with the condescension only a 17-year-old can muster and patiently tried to explain time to me. It was like Stephen Hawking trying to explain the universe to a chipmunk.2 I mention this now because I don’t think I realized at the time how lucky I was to have inspired merely exasperation and pity in my daughters. I could have inspired lawsuits. Modern students seem to be as comfortable in court as they are at the prom. And they have a . . . heightened . . . sense of entitlement to personal fairness. TEACHER WAS MEAN Take Lindsay Hay. Lindsay, a member of her Sissonville (W.Va.) High School student council, went on a school-approved trip and thus was not in biology class on the day her “leaf project” was due. She turned it in a day late. The teacher gave her only half-credit. When I was in school, this was standard operating procedure. Now it’s some kind of cataclysmic abomination, a desecration of student�if not to say, human�rights whose effects reach far beyond Sissonville High and probably threaten the galactic balance. Boy, do I feel old. According to Lindsay, this academic atrocity lowered her biology grade from an A to a B and “wrecked her 4.5 grade point average.”3 She saw in this “an arbitrary and capricious” intention to “deliberately ruin” her GPA. She sued. She sued! She didn’t get the grade she wanted on her leaf project so she sued. Her leaf project, for crying out loud. She turned in her homework late, got only partial credit, and decided this was a matter that required the intervention of the American legal system.4 First came Brown v. Board of Education, then Gideon v. Wainwright, and now In re Lindsay’s Leaf Project. We keep this up, we could get off Amnesty Inter-na-tional’s list of rogue states. OK, I know this is a sure sign of geezer-hood, but�as you have doubtless noticed�I find myself wholly unable to understand, much less sympathize with, someone who feels a diminished grade on a late homework assignment is something you take to court. Who represented her on this, her cousin Vinny? Can you imagine? You walk into the calendar court and sit down next to a couple of lawyers you know. They’re talking about their cases: “Yeah, blew right through the light. Blood alcohol was 0.19. Mom and Dad died instantly, but my client was in the back seat. Her surgeries were successful, and she’s gonna be OK, physically, but for a 10-year-old to lose both parents . . .” “Boy, that’s a heartbreaker. Makes my water pollution injunction look like a day at the beach�no pun intended. But we really need to do something about this river. We tried for years to get them to stop voluntarily, but we just couldn’t get anywhere. A lawsuit seemed like the only answer.” One of them turns to you. “So what have you got?” “Uh, half-credit on a high school biology project.” “What? I can hardly hear you. Why are you whispering? Court’s not in session. What’s your case?” “Uh . . . it’s kind of an environmental thing. Complicated. State intervention in a leaf project. Takings clause. Oh, look, there’s my client. Gotta run, guys. See ya.” Can you imagine having to explain that you decided an appropriate use of your legal degree was to argue that the biology teacher shouldn’t have been allowed to deduct credit for a late assignment? You might as well be suing the dog who ate the child’s homework. Or the boy who didn’t ask her to the prom. This girl sued the teacher and the Kanawha County School Board for “emotional stress, loss of enjoyment of life, [and] loss of scholarship potential.”5 She sought damages. A West Virginia judge�God bless him�threw her case out of court. He should have ordered her to retake her civics class. THE KEYS STUCK But in fairness to Ms. Hay, she’s a high school student.6 She’s barely had time to develop secondary sexual characteristics, much less perspective. That will come in time and, given her obvious book smarts, she’ll doubtless be very successful, right? Well, not necessarily. Adrian Zachari-a-se-wycz is considerably older, has the advantage of college and law school behind him, and wasn’t able to show any more judgment than Ms. Hay. Or a fence post, for that matter. Adrian sued the University of Michigan Law School for initiating “a system of course examination and grading [that] disadvantaged students that could not type at a sufficient speed to produce the volume of text required to produce competitive examination responses.”7 That’s right, the old I-Woulda-Got-an-A-on-the-Test-but-I-Couldn’t-Type-Fast-Enough argument. According to loweringthebar.net, Kevin Underhill’s wonderful legal Web site, Zachariasewycz sued the University of Michigan, various law school employees, the law firm where he had worked as a summer associate,8 and employees of that firm, alleging that they conspired to deny him employment.9 Just how that conspiracy worked is not made clear by the complaint. The allegation is that plaintiff “believe[s] there is some nexus between the actions” of all these people. I don’t know, that seems like enough to me, but my colleagues Bill Rylaarsdam and Ray Ikola both say you need to be somewhat more specific. And they can both type like demons, so they’re probably right. Ikola most likely would have to recuse himself (he was a Wolverine undergrad and still bleeds blue and maize), but even allowing for a certain bias in that regard, I think I have to share his skepticism about Zack’s allegation10 that his “borderline failing grades” were the result of “the low volume of prose Mr. Zack could type in the time allotted as compared with other students.” Ikola insists he knew lots of guys who could produce a “high volume of prose” and didn’t do especially well in law school. He says many of the “high volume of prose” guys were the kind who would think, “I believe there is some nexus between the actions of all these people,” would be an adequate allegation of civil conspiracy.11 WROTE TOO LITTLE I think Ikola’s right about this. I’ve been on the bench 20 years, and I can’t recall once thinking, “That’s a pretty good argument. If he’d been more verbose, I might have ruled in his favor, but�given the low volume of prose associated with the contention�I think I’ll have to reject it.” In fact, I’ve found the best arguments can usually be made rather succinctly. So my rule of thumb is almost exactly the opposite from Mr. Zack’s approach. My rule is, “If my eyes glaze over before the next Roman numeral, the argument’s a loser.” Maybe not as big a loser as the ones advanced on behalf of Lindsay and Adrian, but at least as big as the Denial-of-Equal-Protection-Due-to-Different-Amounts-of-History-to-Be-Learned one. But, then again, no one’s brought that one to court. Yet.
William W. Bedsworth is an associate justice at the 4th District Court of Appeal in Santa Ana, Calif. He can be reached at [email protected] This article previously appeared in The Recorder, an ALM publication in San Francisco.

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