August 31, 2005

BlawgDay 2005

In honor of BlogDay, during which "bloggers from all over the world will post recommendations of 5 new Blogs, preferably Blogs that are different from their own culture, point of view and attitude," I recommend five blawgs of which you may be unaware.

1) The Canadian Privacy Law Blog is more wide-ranging than its title might lead you to think. Though its coverage of that area appears to be quite thorough, it also has many posts about American privacy law, including HIPAA and EPIC's petition to the FCC to stop online companies from selling customers' phone records without consent. Speaking of which, make sure that your cell number is on the Do Not Call list.

2) Jeremy Richey has been a frequent commenter on many blogs I've read, but I don't think I've checked out his own Blawg until now. He describes himself as "Law student (3L), future litigator, blawger, and instigator of the vast right-wing conspiracy," and a couple of recent posts reveal him to be a cheerleader for the Christian Legal Society's right to discriminate against homosexuals and a future public defender as well.

3) The Stark County Law Library Blawg advertises itself as "Serving the legal community of Stark County, Ohio." I don't think that many of the posts are anything special discretely, but as a whole I approve of the project of trying to aggregate information that might be useful to practitioners in a specific place. Blawgs, including De Novo, often seem to prefer generalization of geography, subject matter, etc., so if someone uses the technology to meet a real need, I'd be excited to see it.

4) The Mommy Blawg similarly tries to focus on news relating to parenting -- women imprisoned for having meth in their breastmilk, a boy now in custody of a college mascot, and child support that begins with paying for the birth -- but often diverges into generalism too.

5) If you had more than one semester of French, you'll have an easier time reading Droit en Enfer than I did, though I could make out that it was saying flattering things about De Novo here.

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Today / 08.31.05

Today is BlogDay.

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August 29, 2005

Re: Student Use of Technology in the Classroom

Received this email from an Associate Dean:

Students and faculty at the Law School expect that laptop computers, cell phones, and other digital devices will not be used during class in a manner that is unreasonably distracting to fellow students or the instructor. A faculty member may ask a student to leave the classroom if a student's conduct becomes unreasonably distracting or otherwise inappropriate in the judgment of the instructor. Any faculty member is free to set a technology use policy for his or her individual classes, which may include banning the use of these devices.
In other words: law professors like to hear themselves talk. That's why they became law professors. They also would like it if you liked to hear them talk. So they get a little annoyed when, instead of hanging on their every word, you are chatting/ playing minesweeper/ shopping on eBay.

While being asked to leave the classroom might be a little embarrassing, it's really not the answer. After all, with blind grading, how are they going to know that exam number 238733 was the same guy that they asked to leave because he was in a chat room back in September?

Perhaps some professors will make that part of their optional technology use policy and will dock some amount of points off your final grade for technology use infractions, but is it really that serious?

The way I see it (and our Dean seemed to agree at a question and answer session I attended last spring), if a professor can't keep my attention, whose fault is that really? Probably mine, but it doesn't change the fact that if she can't keep my attention, no amount of banning instant messenger is going to help. Back before I had a laptop, I doodled. I doodled masterpieces during classes that were uninteresting. Or I daydreamed. I can easily do those things again, and I still won't be paying attention.

So why be an arse about it? If I can't make myself pay attention to the professor, she can at least let me be semi-productive by paying some bills online and catching up with an old friend.

In the meantime, I'm still going to chat until I'm caught.

Do your schools have technology use policies? If so, what are they like, and do they work?

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August 28, 2005

Show me the hypocrisy

The rested, refreshed, and probably bronze tanned Howard Bashman is back from his vacation and blogging at an all time record pace. One post refers to this BG op/ed by Jeff Jacoby on the perceived hypocrisy in allowing consenting adults to engage in gay sex while not allowing consenting adults to engage in incest. Unfortunately Jacoby only quotes the most sweeping language of Lawrence and ignores the end, where Justice Kennedy writes:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. �It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.� Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
I understand Jacoby's doing his job of mouthing off from the bully pulpit, but a little integrity is not that much to ask for. If you're going to make claims about a SCOTUS holding to a public that is generally ignorant of anything legal, do so with the remote semblance of accuracy. Lawrence undertook a careful analysis which determined a particular outcome for the case at hand. A similar analysis in the case of incest dictated another outcome. But to use Jacoby's own method, based on Lawrence, lower courts continue to uphold archaic moral legislation.

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August 26, 2005

Where did all the Fedralists go?

No, I'm not dead, in fact, I just finished my orientation for law school and I miraculously still want to be a lawyer! Well actually, it wasn't bad at all. I posted my first brief over at Objective Justice and will be posting all the briefs I write over there for as long as humanly possible. (I'm told it won't last more than three weeks.)

If any of you reading this are from Lewis & Clark Law School in Portland, give me the skinny on the professors and I sure could use some good outlines. I'm already a member of the vilified Federalist Society, and I wanted to take a moment to speak about that.

As a registered libertarian for over 11 years I am extremely disappointed that the Federalist Society has been so fully taken over by the "conservatives". (It has been so fully taken over in fact, that they bill themselves as the conservative opposition to the liberal law schools.) The Federalists act as though they don't have an partisan ideological position, but I can tell you honestly that many of them espouse a belief in the Republican Party.

Now, this may not be bad if you're a Republican, but it sure is crappy for those of us that truly believe in Federalism, as we have to wade through the decidedly Republican platform of many of our peers. It especially irritates me because the current administration is in no way a proponent of Federalism. I'm not sure how Republicans in the Federalist Society can be Federalists and believe the federal government should be allowed to make paternal decisions for the states. At least Justices Scalia and Thomas (with whom I disagree quite frequently), know where to stand on those issues.

As we all know it is clearly mistaken to assume that politics have no bearing on the law. Probably more has been written about this topic of the legal process than any other in the U.S. So yes, I do understand that politics do play an important role, but I'm here at law school because I'm looking for an objective rather than subjective forum to make changes in our society. I realize that Federalism is a political topic, but can't we talk about the legal aspects more than the political? I mean, come on! If I wanted to talk politics rather than law, I'd be getting my PhD rather than a JD.

It really ticks me off that Republicans have started using a forum that supports Federalism to "make a stand against the liberal law school tradition". I frankly don't give a damn about the politics of my law professors, I'm here to learn the law, not how I should vote in the next election. I certainly don't need to be "protected" from the big bad boogey man of liberalism. In fact, that sounds like an argument the Democrats would make.

Now we have the Federalist faced off against the ACS, (which purports to support the Constitution, but really supports the Democratic Party), and there is a turf war brewing. Why? Are the Democrats against Federalism? Are the Republicans against the Constitution? What the hell is going on here?

All of this ridiculous posturing has devalued what could be an amazingly rich resource for law students. I don't care if you're pro or anti federalism -- though I will gladly argue with you though -- but I just want to be able to discuss the topic without having to hear all the ridiculous posturing of the Republicans. (Trust me; I know the Libertarians make fools of themselves quite often as well.)

That is my rant for the day. I have decided to devote myself to repairing the image of the Federalist Society. We're not all "conservatives"; some of us actually make decisions based on the issues involved rather than deciding based on the party platform. For you Republicans out there that think this post is about you, it is. I'm totally fine with discussion of your political beliefs (I agree with about half of what you say), but leave your Republican hat at home when you're representing the Federalist Society. This issue is too important to get muddled up with a political party.

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Today / 08.27.05

Today in History (1232) - The Joei/ Goseibai Shikimoku is promulgated by Regent Hojo Yasutoki. Prior to this Formulary of Adjudications, the Kamakura shogunate conducted trials without formal laws.

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August 25, 2005


With the Court in recess and the Roberts nomination marching toward confirmation (although I have been getting a lot of PFAW e-mails indicating that it won't be as easy a vote as I'd assumed), the justices appear to have little to fill their time except making speeches and collecting fees. Antonin Scalia, for example, will be teaching a Separation of Powers course for continuing legal education credit at the end of September.

If I were Wings & Vodka, this might be a post about who ghostwrites the Justices' speeches, or the portions of their anatomies that got most sunburned this summer. As I am not W&V, this will be a dull and humorless post about both lay and educated opinion regarding the link between jurisprudence and political preference.

In the New York Times today, Linda Greenhouse reports on a speech Justice Stevens gave last week to a Nevada bar association, which speech also was mentioned in the Associated Press article about the Court's refusal to reconsider its eminent domain ruling. Helvidius declares that Stevens must be following his desire rather than duty in the cases where the justice rules in favor of his preferred policy outcome, and concludes, "What is most telling about Ms. Greenhouse's piece is that Justice Stevens' not adhering to his own policy preferences is somehow novel." I think that this may be both an injection of Helvidius's own legal beliefs and a misunderstanding of what Stevens was trying to say with his speech, though having no psychic abilities to peer into either's head -- nor the full text of Stevens's speech -- I can only guess.

First, Stevens made explicit in Raich how much he would have liked to rule on behalf of the medical marijuana users, just as O'Connor said exactly the opposite: that she never would have made the law, but felt obliged by her understanding of the commerce clause to let it stand. This was a much greater contrast than that of Kelo, in which the dissenting O'Connor and Thomas bewailed the injury to the unfortunate. I had thought those without any property for the government to take to be the most unfortunate, but apparently having property taken against your will, even when you are compensated for it, is more deserving of conservative pity.

Anyway, duty and desire can converge, and generally do, far more often than they conflict. Justice Scalia, for example, rarely seems to see a strong duty to enforce the establishment clause of the First Amendment; his philosophy of the Constitution generally dovetails nicely with his political preference. Even in his criminal law jurisprudence, his desire to protect the accused essentially ends once the accused has been convicted and sentenced. Up to that point, Scalia is a defendant's friend: insisting that witnesses testify in the courtroom so the defendant can exercise his right of confrontation, and demanding that juries certify each element adding to the sentence prescribed by the guidelines. Afterwards, the convicted person may have many reasons for appeal or rationales against the death penalty, but he will find no help in Scalia.

But I never would accuse Scalia of failing in his duty to judge cases by his best understanding of the Constitution merely because that duty most often directs him to rule in a way that happens to coincide with his political desires. Nor should Steven be said to ignore his own version of that duty in the cases where his legal judgment converges with his policy preference.

The point of the speech seems to have been somewhat educational, to remind the bar association members and the larger public that despite what the current confirmation chatter might lead them to think, judges don't just apply their ideal political views to the cases that come before them. Justice Stevens could have been trying to distance himself from the results of two unpopular rulings, but he also or alternatively might have been making a point about how such rulings come to be.

Judges' roles have become increasingly controversial, and while the judiciary should be criticized as freely as the other two branches of government, we may need to remember that unlike the executive and legislative, the "least dangerous" branch only can decide what other actors bring before it, and should be doing so with a consistent comprehension of law that can bring about undesirable ends. At that point, the political branches must check themselves and each other -- Congress or a state legislature slapping down New London's political bodies, for example -- instead of depending on the judiciary to do this work for them.

(Random Question: Why would anyone buy Breyer's new book if it's just the Tanner Lectures available here, except with footnotes?)

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August 24, 2005

Today / 08.24.05

Today in Nullification History (1215) - Pope Innocent III declares the Magna Carta invalid.

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August 23, 2005

Our Father Who Art in San Francisco

Yesterday, the Supreme Court of California ruled (here, here, and here) that same-sex couples have full parental rights in California. (See LA Times article here).

California is the first state in the nation to do so, but the implications of these rulings cannot be understaed. Particularly, the following paragraph of Justice Moreno's opinion in Elisa B. is worth noting:

"We conclude, therefore, that Elisa is a presumed mother of the twins under section 7611, subdivision (d), because she received the children into her home and openly held them out as her natural children, and that this is not an appropriate action in which to rebut the presumption that Elisa is the twins� parent with proof that she is not the children�s biological mother because she actively participated in causing the children to be conceived with the understanding that she would raise the children as her own together with the birth mother, she voluntarily accepted the rights and obligations of parenthood after the children were born, and there are no competing claims to her being the children�s second parent."

The openly holding out provision has been used to establish parentage for citizenship purposes. Since the federal government has no family law provisions, the CIS and other government agencies that deal with parental issues must rely on a State's definition of a parent. With respect to California parents at least, a child may in theory apply for citizenship if the same-sex partner of his/her biological mother is a citizen. Food for thought.

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August 21, 2005

Virginia Law Review, Hmph!

In this entry, I discover the fate of an article I loved.

The very first submission I read when I joined my journal last year was one of the best I read all year. It was well-written, the author had excellent credentials as an expert in the field, and best of all, it presented a real conflict: how to reconcile the demands of a recent Supreme Court decision -- one with which I agreed completely -- with the needs of victim group predominately consisting of the particularly vulnerable?

At the next meeting to discuss submissions, my hand shot up and I argued passionately in favor of the article. Passionately, and quite unnecessarily, as everyone else who had read it agreed that it was of high quality and well worth our publication. It was unanimously accepted for publication, and then we moved on to other business and I forgot about it, except to include the SCOTUS decision in a song for the Law Revue show.

I hadn't realized that the author chose to publish the article elsewhere until I ran across another article by him in which he cited the previous piece as having appeared in the Virginia Law Review. While Virginia is my second-favorite law school after my own -- having not only my undergraduate loyalty but also having been a hospitable environment during this past summer -- I felt a bit affronted by the author's having rejected my journal. How lovingly we would have checked his citations and scrutinized his punctuation for impermissible italicization! while at VLR, he doubtlessly was just another face in the crowd of their much more hectic production schedule.

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August 19, 2005

Today / 08.20.05

Today in History (1998) - The Supreme Court of Canada states that Quebec cannot legally secede from Canada without the federal government's approval. Why a branch of that same federal government should be able to make a binding decision on a secessionary territory is unclear.

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August 17, 2005

Day Four: Defending the Bar

After a six-day hiatus, the Bar Exam symposium is back with a couple of provocative posts. Venkat Balasubramani challenges the bar haters to come up with a better way to test basic competence, and the Sardonic Lawyer derides law school accreditation while suggesting improvements to the exam's current format.

We welcome comments and e-mails, so please voice your approval or disagreement with these and other symposium posts.

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Balasubramani: Hit It and Move On

Thanks to PG for asking me to contribute a post to De Novo's bar exam symposium. I blog over at Begging to Differ, and practice Internet law with a boutique firm in Seattle. This sometimes includes "spam litigation," which makes for great cocktail party conversation. It's always fun trying to explain to your parents that you sometimes stand up for the rights of people to send unsolicited commercial e-mail. More on that later maybe.

It's been a while since I've taken the bar (once in '97, and again in '98). My most prominent memories of the bar are "hit it and move on" -- the signature phrase of the MBE lecturer [fn1] -- and the heavy breather [fn2].

On the topic of whether the bar should be abolished, I can't think of an improved alternative, and those who advocate its abolition should come up with a better measure beyond law school that tests basic competence. While I, like most others, wholeheartedly agree that the bar exam does not adequately test lawyering skills (interpersonal skills, communication skills, or awareness of ethical standards for that matter), it roots out those that are so lacking in competence that we don't even let them enter the market. So it's better than nothing. Possibly I would add some components to the test, like something that tests research and something that tests formatting skills.

At any rate, the single most important thoughts that can carry you through the bar exams are: (1) if those crazy California lawyers you see advertising on billboards can pass the bar, then so can I; and (2) practice exams � practice exams � practice exams. On that first point, I'm convinced California has the wackiest collection of lawyers out there. A tour through the zoo that is the California bar (read the back of any month's bar publication) should be enough to convince you that, you too, can pass this exam with no problem. Seriously though, the bar is really a measure of whether you can put in the necessary amount of time within the given time constraints, both in studying for and taking the test. In some sense, this approximates a couple of basic skills in the practice of law, being able to actually put in some time and roughly budgeting your time.

Have I used any of the knowledge I learned during bar prep or during the exam? Absolutely not. It's foolish to think that the bar-bri provided "black letter law" will come in handy at any point in your law practice. Whatever the level of your practice (whether in-house counsel, big firm lawyer, government lawyer or solo) it's fairly certain that you will never turn to this knowledge of bar-bri black letter law in advising clients or writing briefs, agreements, or letters. I have heard of people consulting their bar-prep books to get them started on a question but most people quickly realize this is not a road you want to go down.

With those comments in mind, I offer my tips:

Laptop/typewriter: As far as the exam itself, I took it when laptops were not so prevalent and trying to use a laptop was more trouble than it was worth. I did, however, use a typewriter. I'm a much faster typist than a writer and my typewritten documents are much cleaner and more readable than anything I scrawl out. This helped because us typists were away from the crowd (anything you do to get away from the crowd is great).

Hotel: I'm not really that comfortable in hotels, unless they are nicer ones, so it wasn't worth the money to stay at a hotel during the bar; I lived one city over in both cases. Unless you are traveling from far out I would not advise it. Besides, you are likely to see a bunch of people taking the bar at the hotel and one thing you really really really want to avoid on Day 2 is the whole "what did you think about question #4," discussion, or the "what's the length of time for adverse possession" discussion.

Food: Food is something that�s worth planning out in advance. I don't remember what I did, but a grumbling stomach during the exam is something you want to avoid at all cost.

The Party: It's also worth planning a nice post-bar trip, even if it's just a night on the town or a jaunt around Europe or Asia. If you can hit a third world country, all the better. Nothing puts the bar exam into perspective like seeing poverty on a large scale.

Working and home-prep: I took the second bar exam while I was clerking and I borrowed the tapes from someone. Listening to the bar-prep tapes on your own is probably one of the most boring activities you will have to endure in your life. Also, there's an added level of stress that comes with taking the exam while you are working. But this experience didn't really dent the pocketbook or take too much time out of the schedule. For a second bar I recommend it.

[fn1] Who supposedly became fabulously wealthy through his bar-prep company, who had taken and passed some 40 different bar exams, and whose kids happened to go to school with OJ's.

[fn2] A prolific bar bri lecturer who just happened to be a loud breather.

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SL: Some Half-Baked Thoughts on What Is Wrong With Bar Exams, and How To Fix Them

(The Sardonic Lawyer blogs at ... The Sardonic Lawyer.)

Before flailing away at this topic, I would like to thank PG for extending the invitation to expand on my recent comments. Now to business...

As I have stated previously, I cannot agree with the notion that the bar exam should be scrapped in its entirety for a single, simple reason. The bar exam, however imperfect, is one of the few means our profession has for ensuring that newly-minted lawyers have enough of a grasp of the fundamentals that unleashing them on an unsuspecting populace is not absolutely certain to end in disaster. There is no better approach that is as economical, easily implemented and monitored, and likely to be effective than the bar exam. Period. And even if another approach to establishing initial professional competence does materialize, the bar exam should continue to be used unless it is rendered wholly redundant.

But why, I can hear some of you asking, is there a need to test for minimal competence in the first place? Doesn't the fact that the individual in question graduated from an ABA-accredited school naturally lead to the conclusion that he or she is at least minimally qualified to be licensed? Well, no. ABA accredation is largely a pro forma matter, dependent on several quantifiables (standards for admission, size of library, impressiveness of the professors' curriculum vitae, etc.) and a few intangibles (general reputation, overall impression, swimsuit and talent competitions), none of which individually or in aggregate really has much if any bearing on whether the students are being taught anything useful.

You think I'm just extracting this from my posterior? Let me clue you in on part of my basis for this assertion. In my state, the most prestigious/ well-respected/ highest rated law school you can attend is at the University of Texas. Now, nothing against UT grads personally, but in my years of practice I was told by others and observed for myself firsthand that new UT law graduates know very little about actually practicing law in Texas. For the most part they catch up quickly after getting into the sink-or-swim of practice, but for a time their value is limited to their potential. As many have remarked, the hardest thing about UT Law is getting in (gradeflation and similar matters are a debate for another day), and yet this has no effect on the school's ABA accreditation. If it weren't for the Texas bar exam, I don't think most UT grads would have even the slightest knowledge of basic Texas procedure and state-specific law.

But, you may counter, is this really a problem? Wouldn't this be sorted out by the ordinary course of events, with unqualified attorneys being pushed out of the market by competition and disciplinary boards? Again the answer is no. I hate to sound paternalistic, but generally speaking most individuals who need or want legal representation are poorly equipped to sort out for themselves who is and is not a good choice for legal services. Worse still is the fact that our profession (at least in Texas) does an exceptionally poor job of policing its own.

Now, assuming for the moment that we're on the same page in terms of need to guarantee minimal competence, I want to briefly address assertions that the bar exam is really little more than professional hazing and/or a mechanism for limiting competition. I cannot argue with the notion of the bar exam as professional hazing except to say that, viewed in the most positive light possible, this hazing is relatively benign and is as much a rite of passage for many as it is a form of harassment. The vast majority of individuals who attempt it ultimately pass the bar exam. And to be perfectly candid, The Sardonic Lawyer has a hard time not approving of anything that causes large numbers of attorneys to suffer a bit.

As for the assertion that the bar exam is a tool for limiting competition, I not only am unaware of any credible evidence to this effect, but I would also suggest that if in fact the bar exam has been used in this manner, it was and is a spectacularly ineffective device. Seeing such cabalistic machinations in this context requires a significant predisposition to conspiratorial thinking and/or a hard libertarian bent, neither of which is particularly easy to address in this (or, for that matter, any) forum.

So, what does The Sardonic Lawyer think should be done to fix the bar exam? I have a few preliminary suggestions:

(1) Ditch the multistate. This portion of the exam seems to me to be the least likely to have any impact on professional competence. Also, while I've made clear my misgivings regarding ABA accreditation, it's a fair assumption that any accredited school will at least make passing reference to the basics covered here. The emphasis on rote memorization and question-answering strategy over true understanding is just annoying.

(2) Give test-takers official guidance on the content to be covered and an official study guide. Nothing strikes me as being more stupid about this process than the proprietary stance of the bar examiners on what information will be covered in the state-specific sections. What can they possibly be worried about? Are they afraid that those preparing for the test will actually study only the material relevant to testing, instead of trying to brute-force memorize hundreds of pages of BarBri outlines? Any law professor who insisted on taking such an asinine approach would be summarily executed by his or her students, preferably by being bludgeoned to death with hornbooks and Emmanuel's outlines.

(3) Hit the basics. Nobody gives a damn if you happen to have a thorough command of the most esoteric and obscure rules of law, so what possible grounds exist for testing on these rules? The rule of thumb for what to test is simple: if it's something the average practicing attorney could be legitimately expected to know off the top of his or her head, it's fair game. When is an answer due in a civil case? Legitimate question. What are the elements of buggery? Not so much.

(4) Make evaluation as objective and real world oriented as possible. This dovetails nicely with (3), above. Testing should be limited to the greatest extent practicable to issues with clear-cut answers. Also, I think it's time to dispense with spot-the-issue essay questions. We certainly want attorneys to be as
logical and organized as possible, but testing my ability to properly nest subissues in an essay answer and otherwise follow the IRAC formula is missing the point.

(5) Test ethics, dammit! Maybe this is a Texas-specific complaint, but I think it's perfectly ridiculous that an individual can become an attorney in our state without demonstrating any more mastery of the subject of ethics than passing the MPRE. Stop requiring the MPRE, if for no other reason than it can be passed by remembering three rules: behave like a saint, rat on your friends, give the money back (I'm only partially kidding here).

That's all I have at the moment. Further bulletins as events warrant.

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August 16, 2005

Exercise the Power of Life and Death

OK, just the power of admit, wait-list and reject. Our new dean of admissions emails to say, "We have commenced our search for a new Associate Director of Admissions, who will round out our team of officers poised to embrace the important challenges ahead. Please let David Martinidez know if you are aware of any qualified candidates."

I don't think I'm aware of any qualified candidates, but maybe y'all know some. Job description here. If you take the job, please do your bit to stop the rankings madness. (Though maybe not announce that intention at the interview.)

Posted by PG at 6:11 PM | Comments (0) | TrackBack

Complications of Comparable Worth

David Schraub declares himself more worried by John Roberts's position on pay equity than that on church-state separation:

Though this case [Wallace v. Jaffree] is nearer and dearer to my heart, I recognize it is far more controversial. Roberts's position on gender equality, by contrast, seems absolutely fringe. The "market" should decide what a woman's job is worth? If there was ever a clear cut example of a market failure, it seems like this was it (60 cents versus a dollar -- come on). And Roberts's comparison of judicial efforts to remedy rather blatant sex discrimination in the work place to "central planning" is just absurd. This is precisely the type of ideological blindness to clear facts that I hoped Roberts would avoid.

My support is slipping.

Perhaps due to my own political leanings -- socially liberal, economically moderate -- I take precisely the opposite view, and consider Roberts to be more in the mainstream on the question of comparable worth than he is on mandatory prayer in schools.

Through the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964, Congress required that employers not discriminate on the basis of race and gender in remunerating workers. However, the principle of "equal pay for equal work" can be read in two ways: narrowly, to force employers to pay equally for people doing the exact same work; or broadly, to force employers to pay equally for people doing work with the same levels of education, skill, experience and responsibility. It is the difference between paying two long-haul truckers equally regardless of their gender, and paying a kindergarten teacher the same amount as the long-haul trucker because various factors are weighed and the conclusion is that the former's work is "worth" the same as the latter's.

The first reading is well-accepted both in law and society. Most Americans probably would be offended by paying two people with the same jobs differently, and a woman who brought suit in such a case likely would win with ease. The second reading is far more controversial, because it means that conscious decision-makers, rather than the invisible hand of the market, will determine how particular work should be paid. In overturning the district court's order to Washington State, Anthony Kennedy (in 1985, still on the 9th Circuit Court of Appeals) wrote, "Neither law nor logic deems the free market system a suspect enterprise."

The comparable worth movement has stalled since its heyday in the 1970s and 1980s, and nowadays the focus seems to be more on ensuring that women are not discouraged from entering better-paid careers. Instead of pushing to have English professors paid the same as engineers, we are outraged by the notion that women are inherently less capable of being engineers. While a couple of states such as Washington and Minnesota have implemented comparable worth for their own employees, it is not a widespread scheme, nor one that courts have been inclined to mandate in either the public or private sector.

Roberts's comparison of comparable worth to central planning is not wholly unreasonable, as there is an element of central planning involved in determining how much a job is worth rather than letting the market settle the matter. That female-dominated professions often are underpaid is true, but even that can be corrected by the market eventually, as we are seeing now with the massive demand for nurses, which is driving their wages up -- just as an economist would predict.

On the other hand, Robert's belief that the First Amendment permits a state to mandate a silent time when legislative history shows that the state clearly intended that time to be used for a religious purpose strikes me as a significant departure from settled law and practice. That purely voluntary, un-coercive religious action should be protected is indisputable, and school officials should be instructed in the difference between having a teacher lead his class in prayer (bad) and letting a student do her book report on the Bible or Koran (good). However, Roberts would have states force students to participate in a prayer period, which has no legitimate purpose related to education and good citizenship -- which is what our public schools are supposed to be doing for children.

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August 14, 2005

A Word of Reassurance

For those like the Sardonic Lawyer who fear that Bush appointees will pen "outcome-oriented opinions" tailored to conservative preferences, I offer the somewhat heartening tale of Judge Rosemary M. Collyer:

A federal court has struck down personnel rules adopted by the Department of Homeland Security, saying they violate the rights and protections given to employees by Congress.

In a ruling on Friday night, Judge Rosemary M. Collyer of U.S. District Court said the rules did not "ensure collective bargaining" as required by the law that created the department. The rules were to take effect on Monday. [...]

Collyer, who was appointed by President Bush, said the 2002 law gave federal officials "extraordinary authority" to develop a personnel system without regard to many of the constraints normally imposed by Civil Service laws. But, she said, the Bush administration exceeded even the "broad authority" granted by Congress. "Significant aspects of the human resources system fail to conform to the express dictates of the Homeland Security Act," Collyer wrote.

Of course, this isn't the only instance of a conservative judge's ruling against the Bush Administration in matters relating to the war on terror; Justice Scalia's dissent in Hamdi v. Rumsfeld actually went further than the majority's opinion by declaring that the detention without charge of a U.S. citizen, absent explicit Congressional authorization, was constitutionally impermissible and not merely requiring that the citizen be given a hearing.

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Sixth Amendment or First

I've gradually been coming over to the ACLU-approved view that restrictions on campaign finance violate the right of free speech, but some stories tend to make me wonder again. An article about Rep. Randy "Duke" Cunningham (R-CA)'s asking his contributors' permission to use their funding for his legal defense against a government investigation says, "The Federal Election Commission has approved similar requests to use campaign donations to pay legal bills."

In a way, there's nothing questionable about this, inasmuch as "Cunningham is setting up a legal expense trust, which will permit him to accept as much as $5,000 a year from individual and corporate donors." Once his campaign donors give their permission, an accountant presumably might transfer the money from the now defunct Re-Elect Duke account to the active Defend Duke one. But I'm troubled by the fungibility of these funds if the Supreme Court eventually declares campaign finance to be a First Amendment-protected right that can be regulated only in limited circumstances. Does this mean that no money one gives to a politician should be scrutinized?

In his McConnell v. FEC opinion, Justice Clarence Thomas suggested that perhaps bribery rules should be tightened if the public fears excessively quid pro quo behavior by politicians and their financial supporters; the behavior we truly want deterred should be fought through means other than curtailing speech. In this instance, maybe the quarrel should be with allowing campaign funds to be diverted for other purposes, rather than with the funding itself.

Posted by PG at 3:11 PM | Comments (4) | TrackBack

August 13, 2005

By Way of Explanation

(Sorry for what may have seemed an abrupt curtailment of the Bar Exam symposium -- it will continue with three more days of posts next week.)

My curiosity about how transnational media law might operate only has been heightened by yesterday's Wall Street Journal article -- available free to non-subscribers -- "U.K. Media Law Keeps News On Bomb Suspects Out of Press." The law in question is intended to ensure an unbiased jury for the suspects, and began restricting coverage once they were charged in court. But because these prosecutions may drag on for years, the public will be uninformed about terrorist networks and voters thus are handicapped in their decision-making about whether a particular government proposal, for military action or loss of privacy and liberty, is actually necessary. Assuming that the public reads only UK-produced news, of course:

The media rules, however, are posing increasing problems. The proliferation of the Internet and other alternative media is limiting the British government's ability to restrict information since Britons can read online coverage by foreign newspapers and independent bloggers. In theory, foreign news media are subject to the same restrictions on print editions that are sold on British newsstands and on their Web sites, which can be read in the U.K. But no foreign news outlet has ever been prosecuted under the law.

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Today / 08.14.05

Today in History (1912) - United States Marines invaded Nicaragua to support the U.S.-backed government installed there after Jos� Santos Zelaya resigned three years earlier. They occupied the country until 1933, and the experiences gained in counter-insurgency and guerrilla operations during this period was consolidated into the Small Wars Manual.

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August 10, 2005

Day Three: We Don't Need No Bar Control

After two days of advice and reminiscence about the bar exam, we now turn to arguments for getting rid of it altogether. Daniel Solove and Jonathan Edelstein both declare the bar exam to be useless for all purposes except enriching the bar review industry and slowing down the introduction of new competition to the legal service industry, neither of which are worthy goals. To put it in constitutional terms, the bar exam fails the rational basis test, and they urge that it be eradicated in favor of providing legal services and improving the education provided by law schools.

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Edelstein: Count Me As An Abolitionist

(Jonathan Edelstein practices law in New York, has taught at John Jay College of Criminal Justice, and blogs at The Head Heeb.)

I took the New York bar exam in July 1997. I was warned that taking the exam without a bar review course was suicide, but I reasoned -- correctly, as it turned out -- that it was more a measure of the ability to take tests than of the ability to practice law. I borrowed a set of Bar Bri books from a friend who had taken the course the year before, studied every day on the subway ride to and from work, and kept working right up to the day before the test. I passed first time out, used the $2000 I saved to take a trip to Finland, and came out wondering what the point was to begin with.

I measure the worth of education, whether formal or self-study, by how useful it is in the endeavor for which it is ostensibly preparing me. I have my quarrels with the way law is taught in the United States -- I'll get back to this later -- but in the time I've practiced, I've occasionally used my law school textbooks for reference. I still have my borrowed set of Bar Bri outlines, and in the eight years since I took the exam, I haven't even looked at them once. The knowledge contained in them was either useless, out of date or more easily available someplace else.

Based on this unscientific measure, the purpose of the bar exam seems to be much the same as that of other standardized tests: to measure the test-takers' ability to cram a large amount of information into their minds in a relatively small time. And I don't think it can realistically be improved. There have been proposals to add a "practical" component to the bar exam to measure "lawyering skills," but the variety and unpredictability of law practice can't really be simulated in the context of a mass test lasting two to three days. Any attempt to test lawyering skills on the bar will end up being as artificial and subject to coaching as the current attempt to test basic legal knowledge, and it will introduce an even greater amount of subjective grading.

The question that needs to be asked is why, aside from the financial health of the bar review industry, is a credentialing exam even necessary in the first place? The two justifications I've seen most often are tradition and gate control. The first is always a powerful force in the law, but not one to follow blindly; the second is something that the market can handle as well or better. Not to mention that, even assuming a barrier to be necessary (which is an entirely separate argument), a test that up to 80 percent of first-time takers pass isn't much of one.

I sometimes suspect that the real, unspoken reason for the bar exam's survival as a part of the modern law profession is that law schools don't teach basic skills. The trend in American legal education, especially in the elite schools, is to teach law almost as one of the humanities rather than as a trade, which means that new graduates lack much of the knowledge necessary to practice law day to day. The bar exam is a guarantee to prospective employers that a candidate has studied basic knowledge at least once, in the context of the state in which he intends to practice. But that in itself is hardly a reason to maintain an otherwise useless credentialing test; what's necessary is to reform the educational process leading to that credential and ensure that it provides graduates with an adequate supply of professional knowledge.

Don't mend the bar exam, end it. If you must mend something, mend the law schools.

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Solove: Bar None

(Daniel J. Solove is an Associate Professor of Law at George Washington University Law School and blogs at PrawfsBlawg and Balkinization.)

Earlier this summer, I posted on PrawfsBlawg my thoughts on abolishing the Bar Exam. Yes, as radical as it may sound, I believe that the Bar Exam should be abolished. Not just amended. Not just tweaked. Not even modified substantially. No. I believe it should be abolished entirely. So all you graduating 3Ls stand up and cheer! I'll accept generous tips, too. Actually, it�s too late for many of you, since you've already been put through the torment, having just completed the exam and wasted most of your summer. Now you probably want the torture inflicted on others -- if so, the Bar is little more than a hazing ritual, one with about as much social value as guzzling beer while blindfolded and upside down.

Here's what I initially wrote:

Abolish the Bar Exam. Despite my enjoyment of the Bar Exam as a work of jurisprudence, I believe that the Bar Exam should be abolished. It prevents mobility among lawyers, making it cumbersome and time consuming to move to different states. It does not test on actual law used in legal practice, but on esoteric legal rules, many of which are obsolete, and most of which are of absolutely no value to a practicing attorney or to anyone for that matter. In short, the Bar Exam is an unproductive waste of time.

My guess is most all lawyers would agree. So why does the Bar Exam persist?

Perhaps as a way for states to restrain competition among lawyers... but this would be an impermissible purpose. Perhaps inertia. Perhaps because of the "we suffered, now you must suffer too" mentality. I can't think of good reasons for retaining the Bar Exam. Yet this misery-creating, time-wasting ritual survives -- even thrives -- despite the fact that it has no valid justification and has achieved near universal enmity.

In lieu of the Bar, states should permit all students who graduate from an accredited law school to become members of the Bar after working a certain number of supervised pro bono hours. All the time spent studying for testing could be used for pro bono work, which would provide a benefit to the community and practical training for future lawyers. I think that this is much better than wasting most of a summer studying for a meaningless test.

I received quite a response. I was surprised that many stood up to defend the Bar Exam, which definitely demonstrates lawyers will defend absolutely anybody or anything, no matter how dangerous or odious.

Replying to these comments, I wrote another post explaining my position in more detail.

Further Thoughts on Abolishing the Bar Exam. I received many thoughtful comments on my earlier post about abolishing the Bar Exam. Most of the arguments for retaining the Bar Exam involve the need for erecting a barrier to attorneys being licensed.

Hardly any of the Bar Exam supporters contend that the Bar Exam is a good metric for merit as an attorney. If we want to block people from becoming lawyers, there are many ways to do it, but why use a test that doesn't do a very good job of it? If we want a barrier, why not make applicants go through an obstacle course? Or have a silly competition in something? The Bar Exam is a hurdle that mainly functions as a hurdle, not as a meaningful way to distinguish competence from incompetence. Passing the Bar Exam reflects at best: (1) whether you have enough money to pay for BarBri; (2) whether you have a decent memory to remember the rules; (3) whether you are willing to waste many hours studying. The Bar Exam doesn't test legal thinking; the rules it tests on are not useful to the practice of law or much of anything else. [...]

In the end, the fact that the Bar Exam serves as a barrier does not strike me as a valid reason to exclude people from the practice of law unless it functions as a meaningful barrier. It doesn't. To the extent it correlates to effort in studying or memory or standardized testing skills, I'm not sure that these are the best skills that we should be looking for in members of the profession. And also consider that there is not a large social benefit to all the hours that people expend studying for the Bar Exam. All the hours spent on the Bar Exam could be used for a more productive purpose, such as helping people in need.

Here's a brief listing of some of my arguments for abolishing the Bar Exam:

1. It doesn't test on the kinds of skills a good lawyer should have.

2. It often tests on obsolete legal rules.

3. The Bar Exam is largely a memory test, and memorizing legal rules is not something that most lawyers really need to do.

4. The Bar Exam often serves to inhibit practicing lawyers from moving readily from state to state. The investment in time to retake the Bar Exam can be too much for many if they are going to a state without reciprocity.

5. The Bar often weeds out people who don't have the money to take an expensive course like BarBri. Certainly, there are the unlucky folks who take BarBri and fail, but this does not frequently occur.

6. There is no need for lawyers to know much about a lot of Bar Exam subjects. Does a criminal lawyer need to know the rule against perpetuities?

7. The Bar consumes hours upon hours of time. This time could be used much more productively in ways that help out the community. Right now, time studying for the Bar is time that could be spent helping others or doing something more productive. The time taken to study for the Bar is wasted time, with little value to the person studying or to society.

8. Nobody really uses the rules as formulated on the Bar Exam. As I've written elsewhere, if one practiced the criminal law on the Bar Exam, one would be disbarred!

9. As far as barriers to entry, the Bar Exam is not really necessary. Law school is a significant barrier to entry. It requires three long years of time, study, and money. In the end, it�s much easier to make it past one Bar Exam than through three years of law school.

One of the main arguments for the Bar Exam is that it will help ensure that lawyers are competent. Our profession doesn�t do a very good job of this. It provides a meaningless entry exam (the Bar) and then requires attorneys to waste their time and money on expensive continuing legal education (CLE) courses. In the end, the only real way to ensure that lawyers are competent is for the profession to crack down on incompetence. Many a time, judges wince through incompetent lawyering and accept incompetent briefs and pleadings. Many an ineffective assistance of counsel case contains egregious actions by the attorney. It shocks me that attorneys can engage in some of these actions brazenly in front of judges and prosecutors without being taken to task. In short, the Bar Exam has little to do with competence.

So that's why we should just get rid of the Bar Exam. Throw it away. Burn it. Bury it. And go to a system where lawyers-to-be spend some time helping the community while honing the necessary skills.

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August 9, 2005

OCI Woes

EDITED to add: Ooops, forgot it was symposium time. But if you need a break from Bar Exam talk, here it is.

Number of firms interviewing on campus this fall: 362

Minus those that require Top 10%, left with: 345

Minus those that require Top 25%, left with: 310

Minus those that require moot court or law review, left with: 270

*cue picky nature*

Minus those that are not in Dallas or Austin (Houston's too humid, don't really want to live anywhere else), left with, erm, like 50.

*cue laziness*

Minus those that require a cover letter, because I can't be bothered to write any, left with: 20

Minus the thirty minute interviews because of sheer length of interview, left with 10.

You know, I didn't really want to work next summer anyway.

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The Other Exam You Take

I interrupt this symposium on the test that closes most of our legal education, for a brief remark about the test that begins it: the LSAT. Volokh Conspiracy guest-blogger Andrew Morrison has been posting on his research into the relationship between applicants' exam scores and law school rankings. If I am reading his work correctly, it would provide at least one answer to something that puzzled me last year.

My law school application experience can be boiled down to low GPA, high LSAT, lots of applications ranging from the University of Houston to Harvard and a wide variety in reception. Some schools accepted me quickly and even threw in merit-based scholarships. As I told my mother would happen when she pushed me into applying to Yale and Harvard, I was quickly rejected. (In the years for which I had statistics, those two schools accepted not a single applicant with a GPA as low as mine.)

I was surprised to be waitlisted by several top ten schools, yet summarily rejected by "second tier" ones. However, if the top schools are more likely to select students based on LSAT, my record is easily explained. That admissions decisions are so strongly affected by US News jockeying is sad but apparently worked to my benefit.

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Day Two: The Class of '05

Today two people who just took the bar two weeks ago -- one in Texas, the other in New York -- recount their experiences. Mark M. is confident of his success and annoyed with having spent so much time studying for the exam. Raffi Melkonian is less certain about having done well, but more inclined to see the value of the bar exam as a traditional bond among American attorneys.

We welcome comments, questions, come-ons (although please note that Mr. M. is a married man), etc. If you'd like to share your own experiences with or views on the bar, feel free to e-mail

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M: Burning My Bar Ticket Was the Most Satisfying Experience of My Life

(Mark M. is a 2005 graduate of the University of Texas Law School, as well as a high school classmate whom PG feels free to nag.)

This post should ensure that PG remains on speaking terms with me.

The bar exam marked the first time I've ever actually worked hard in my life. I've lied about working hard in the past: "Sure, mom, law school's got me working dusk til dawn... [giggle]." But, essentially, undergrad was a joke, law school was a lark, and every job I've had before was just a way to pass the time and earn CD money.

I studied hard for the bar exam. Relatively speaking. Generally spent 10-14 hours a day, every day, after July 4th. I realize some people surpassed that, but then, those people probably took law school more seriously.

And sometimes I've felt foolish during that process. I'm around the top 10% at a top 15 law school -- without putting any effort into law school, outside of generally doing the reading so long as it's interesting. And, after all, 80% of all first time takers pass the Texas bar exam. Well over 90% of takers from my school pass it. Surely I could half-ass it again, and succeed, right? The phrase "minimal competence" became my best friend.

Theoretically, perhaps. But the consequences of failure would have been too disastrous. So I worked. Ground out dozens of practice essays. Quickly got to about 85% on the practice multi-state, then panicked when I only got 80% on a 50 question sampler the week before the exam. And the sample answers in the back of the Barbri books tortured me. If that was maximum points, I figured I was doomed. I became a hermit, petulant with my wife, short-tempered with my friends. Joined the cult of "barzam." Visited blogs by other bar-takers. Only those who are taking the vile thing fully understand it.

I found myself tipping bigger at my local coffee shop on the rationale that they do have to put up with my shit, and I needed the karma. Found myself wondering if my walks around the wall school every couple of hours with my iPod were compromising my study routine. Found myself wondering if three beers before bed were good, because they relaxed me after a vile day, or bad, because they were rotting my mind.

The actual bar exam was mostly easy. The Texas procedure and evidence questions were pedestrian. I didn't know every one completely, but I had no doubt that I was proficient.

After the second day, I was even more confident. Even from the beginning, I'd never gotten fewer than 75% of the multi-state questions correct, so I always figured that would give me a good cushion.

On the essays, which I had been dreading, the first four seemed ridiculously simple. The fifth was slightly troublesome because it was an obscure twist, but the sixth was freaking impossible. Asked a question that hadn't really been asked before, so Barbri hadn't prepared me for it. It was dreadful. Regardless, after the exam, other people were all sweating it too, saying they'd just made it all up, so that was a relief.

The afternoon of the third day was OK, but fatigue began to get to me. I've always found both wills and BA quite easy - but had more trouble than I should have. Physically, I was exhausted. My back hurt, my fingers were sore, and my brain was getting fuzzy.

Oh well. It's over. I'm sure I passed. And when I get my score, I'll regret every second I spent that was unnecessary in studying.

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Melkonian: Bars That Bind

(Raffi Melkonian is a 2005 graduate of Harvard Law who blogs at Waddling Thunder and Crescat Sententia.)

I don't carry any particular water for the bar exam. My own experience with the hoary rite of passage was more miserable than most, I suspect. My hotel was about to be indicted for fraudulently holding itself out as a national chain, and was infested with bugs besides. The Albany cabbies had to be individually threatened before they would take me to my out-of-the-way testing site, and even then they charged me a clearly extortionate rate for the dubious favor of following the law. Even the free breakfast at my fraudulent hotel was a wretched disaster -- unless one has a particular liking for stale donuts and cold coffee sweetened with sugar accessible only after mining a dirty looking crystal mountain.

And all those rather specific details leave aside the worst part of all, common to most test takers -- two months of grueling unpleasantness at the hands of Bar-Bri, a oligopolistic juggernaut charged by accident with teaching American lawyers the vast swathes of law considered beneath the dignity of most law schools. As one of my friends said during a long afternoon hunched over the outline for Trusts, "Assuming I don't get a fatal disease sometime before the end of my natural lifespan, this may well be the worst experience I'll ever have." Given that we're both pretty lucky people, in the grand scheme of things, I think I can agree.

Is there, therefore, anything left to be said for the bar exam? Probably not. But if I were to defend it, I would start by telling a story passed to me by a friend a few weeks ago.

He was talking to an older lawyer he had met at some event, perhaps at his church, and they were having difficulty finding common threads to talk about. But then my friend let slip that he was preparing for the bar, and the older lawyer's face lit up. How did the youngsters these days study for the bar? Did most take BAR or BRI (which turn out to be the precedent companies to the current monolith)? And so a rather unlikely link was forged between this much older lawyer and my friend. They had things to talk about. And enjoyed their conversation.

Perhaps that kind of link is too weak a thread on which to hang months of preparation and angst. But the legal profession as profession doubtless is built upon just those slender connections of common experience, both as a matter of historical perspective and in the nearer term. While studying Roman law in an itinerant fit of curiosity, I discovered that Roman students too had dealt with many of the same problems of jurisprudence that so enriched our own first year experience: how does one distribute liability when an accident is no one's fault? what to do when farmer Horace�s cow wandered onto Justin�s farm, and ate his grain? The feeling I had on reading those basic cases was precisely the transcendent feeling that I used to have when as a historian I read Herodotus -- the sense that two millennia ago, a similar group of similarly balding bookish men were hunched over similar tables thinking about how society might best be ordered.

We as lawyers and law students, in other words, are engaged in the very ancient job of withdrawing violence from the public sphere through reason, and that sense of history, that grim weight of responsibility, is what I believe to be the best hope of maintaining professional standards today. And in the same way, the bar is one of those threads that binds lawyers here in America, that allows lawyers to immediately have something in common, that makes even groups of young lawyers-to-be driving to Albany in rented Chevy Malibus smile at the sight of a small law office promising the best possible representation in your very own personal injury case. We all take the bar. We are all, therefore, identifiably part of the same profession - automatically colleagues, no matter what law we practice.

I don't actually believe that these important considerations justify the bar exam. There are many other methods of socialization that perform the same function, though perhaps not as uniformly; most of us go to law schools that teach similar subjects, and we're grounded in the same tradition of legal reasoning. In that context, the bar probably does emerge as an illegitimate obstacle to professional accreditation, an artificial hurdle protecting existing lawyers from competition. But for those of us who have some sympathy for ordered hierarchy, and tradition, the bar can't be immediately dismissed as the anachronistic error of an earlier generation. At least, that's my story unless I failed -- at which point my feelings towards the thing are certain to be less tender, and wax less lyrical.

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August 8, 2005

Day One: The Only Thing You Have to Fear

We open the De Novo symposium on the bar exam with reassurances. Two people who definitely passed the bar -- on their first tries, no less! or rather, no more! -- not long ago talk about their experiences and make it sound less painful than one might imagine. Fitz-Hume taught himself the material in about a month, and Alex Wellen stopped freaking out once he realized that passing the bar doesn't even require a passing grade.

Later in the week, contributors will criticize the bar exam, re-live having just studied for and taken it, compare it to the accreditation procedures in other professions and countries, and more, so keep checking back.

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Wellen: Get a D

(Alex Wellen is the author of the bar exam memoir Barman. He welcomes your thoughts at

Let me start off by saying that like most candidates who have sat for the bar -- in my case, the New York exam -- I walked out feeling as if I had failed. In fact, as the Results Day loomed closer and closer, I became convinced of it. I was more certain that I had failed the bar exam than I was certain about half the MBE questions and most of the essays. I had this big gorgeous diploma from a wonderful law school, I had tens of thousands of dollars in loans, I hadn't missed a single BAR/BRI or PMBR bar prep course all summer, I had served my 1000 hours of studying, and what did I have to show for it? Squat. I had probably failed the bar exam and I was going to have to go through the whole God-awful experience again.

Then, come mid-November, two weeks before the results arrived, I was hit with an epiphany. It was a number actually: 55. The number 55 would liberate me; it would set me free; the number 55 would give me hope. To arrive on this figure, I would need to dust off my engineering degree, look back at my BAR/BRI notes, identify variables and constants, and employ formulas, calculations, and weighted averages. Indulge me if you will as I reverse-engineer that precious figure:

Back in 1997, for the New York bar exam, we had to complete five essays, and according to BAR/BRI, we needed to receive a score of at least 5 out of 10 on each (50%). Then there were the 50 New York-specific multiple-choice questions. Here again, BAR/BRI told us to shoot for 25 out of 50 (50%). Finally there were the MBE questions. This time we were expected to fare a bit better. If we answered 125 out of 200 questions correctly (62.5%), BAR/BRI assured us that we would be in decent shape. Back then the New York portion of the exam was worth 60 percent and the MBE portion was worth 40. A weighted average of the minimum scores needed to pass each part generated the figure 55. I needed a 55 to pass the bar exam. Even back in elementary school, a score of 55 was an "F." I needed to get an F. I could do that. I could get an F. In the days right before the results arrived, I concluded: "If you got a D, Alex, you�re a genius."

Yes, I realize that times have changed, that the format of the New York bar exam, for example, now includes the Multistate Performance Test (MPT), and that every state has different requirements and minimum standards, but I believe the advice still rings true. You don't need to nail this exam; all you've got to do is pass, even if they round up your score to the thousandth place. This sounds like simple advice, but it means nothing until you embrace it completely. Right before you break the seal on that bar exam booklet with your No. 2 pencil, remind yourself: "Get a D and be a genius."

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Fitz-Hume: You Can Do It

Allow myself to introduce... myself. I am a 30 year-old attorney, I work in the office of legal counsel to a state legislature, and I post under the nom-de-blog of Fitz-Hume at Begging the Question. Due to the nature of my work, I don't write about law or politics on my blog, so don't click over and expect anything from me related to the law beyond my simul-posting of this post. Not long ago, I was a mediocre student at a top twenty law school. I finished in the top third of my class, I participated in a two-year legal clinic assisting capital defenders, and I wrote for and served on the editorial board of a legal journal.

A quick aside, if you'll permit me. I think it is truly bad advice to take courses in law school just because they cover subjects tested on the bar exam. Beyond those courses that should make up the components of basic legal literacy (your first-year courses, plus evidence, admin law, and tax) I don't see any value in choosing your courses solely because they will be tested on the bar exam. Instead, take classes that interest you because you're more likely to care about those courses and perform well in them. Obviously, people will disagree with me, but you just don't need comprehensive knowledge of every subject tested on the bar. The first-level knowledge you need to pass the exam can be obtained from the review materials.

My bar preparation did not include PMBR or BarBri. I ordered the self-study kit from MicroMash and I could not have been happier.

I chose MicroMash for several reasons: (1) it was much cheaper than BarBri and PMBR, (2) you could get a refund for the cost of the materials if you failed the bar, and (3) I couldn't imagine sitting in class for several hours every day listening to someone drone on about the bar exam subjects. I had confidence that I could learn or re-learn everything I needed to know without watching videotaped lectures. If the mountain of debt I piled up during school was not motivation enough to get me to learn the material on my own, the BarBri videos weren't going to be the panacea.

To anyone looking for an alternative to BarBri, I recommend MicroMash without reservation. The CD-ROM filled with tens of thousands of multi-state multiple-choice practice questions is particularly useful in preparing for the Multi-State portion of the exam.

There is no reason that preparing for the bar exam should consume your summer. I did not study at all during May. Instead, I moved my family. During June, I spent perhaps an hour a day reading through the detailed outlines of the state-specific areas of law. I did not take notes, I did not make outlines, I did not write out practice answers. I just read the prepared outlines. I spent the rest of my time fishing, playing video games, reading for pleasure, or playing basketball. My bar preparation did not really begin until the Monday after the Fourth of July. For the next 3 1/2 weeks, I spent 10 to 12 hours per day studying, making notes, reading, re-reading, and outlining answers to practice essays. I divided my time pretty evenly between studying for the MBE and learning the state-specific topics. I spent the two days before the bar exam helping my co-blogger pack up his house and move.

And I passed the Virginia bar exam on the first try - without BarBri and without sacrificing my summer to the bar examiners.

I think that the fear most people have about passing the bar exam is misplaced. Yes, the bar exam is important. It may be the most important test you ever take, but a diligent law student has the tools to pass the exam. I'm not a genius, I'm not particularly gifted in terms of "getting" the law, and I certainly didn't exert an extraordinary amount of effort preparing for the bar, either, but I passed.

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August 7, 2005

Statements of Interest

Two seminars for which we had apply with one-paragraph "statements of interest" were somewhat inconveniently scheduled for the exact same time, so I had to go with the one that decided on its class list first. But as I was deleting files (how have I managed to use up 14 GB already?), I thought I'd share what I wrote.

Federalism Statement of Interest:
The "moot court" for my undergraduate class on federalism and separation of powers was Solid Waste Agency of Northern Cook County v. Army Corps of Engineers. In arguing on behalf of the Army Corps in order to preserve the migratory bird habitat, I had my first grapple with the constitutional limits on federal power. Having had Constitutional Law with Prof. Henkin, I've become familiar with the proposed Bricker Amendment and the conflicting pressures of state sovereignty and treaty compliance (migratory birds again being the initial cause; these entities that insist on not only interstate but international travel are vexing!). I joined the Federalist Society upon coming to Columbia in order to get more exposure to these ideas, and have discovered the vast range of thinking even within what might be called the federalist movement. I also became so interested that I joined the board, which came as a surprise to those aware of my political leanings. At this point I am more open to but still somewhat skeptical of strong federalism, and would appreciate the opportunity to study it in depth and with more guidance.

Torts Statement of Interest:
When I first announced an ambition to attend law school, my extended family's opinions converged on one point of agreement: I was not to join the plaintiff's bar. Due to several members' being physicians, the Indian network in which I grew up had a strong antipathy to malpractice suits specifically, which was generously extended to torts at large. Thus a frequent topic of dinner conversation is the deviltry of attorneys who incite normal people to become plaintiffs, in which I defend the necessity of a check on the behavior of those with greater control -- businesses the provide defective goods and services, firms that create negative externalities for non-customers, yea, even doctors who may act negligently -- than the consumers, community members and patients who suffer thereby. I've heard the arguments in favor of higher filing fees, loser-pays-all, experts to vet claims before they go before a court, and of course Texas's latest experiment, capping non-economic damages. In short, what Molly Ivins calls "tort deform" has been a longtime interest and promises to continue as one. A seminar covering the issue in depth would be tremendously useful not only academically but also for the next wedding I attend.

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August 5, 2005

Today / 08.06.05

Today in Equality History (1965) - President Lyndon B. Johnson signs the Voting Rights Act into law. Portions are scheduled to expire in 2007. Prof. Richard Hasen recently claimed that Judge John Roberts may be unfriendly to expansive voting rights.

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Judge Nodd

This sleeping judge in Australia retired for medical reasons.

Okay, falling asleep during a rape victim's testimony? Probably not a smart thing to do. But a lot of stuff that goes on in court is just plain boring, so can a judge really be blamed for nodding off every now and again? I suppose falling asleep every day during a seven day trial probably isn't every now and again, though. Yeah, maybe retirement was smartest.

I have a feeling though, that if the judge was in Texas he needn't have retired. Unless judges are held to a higher standard than lawyers, of course. This would make sense, but making sense isn't always necessary in Texas.

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August 4, 2005

The Reasonable Man Is a Rapper

Because proving that someone knew that she was selling a product that would be used for illicit purposes is difficult, the federal law apparently sets the bar at "reason to believe." For example, if a customer comes into her store and says, "I need this cold medicine and aluminum foil to do some cooking to feed my jones," a Reasonable Person would know what he means, even if she disclaims having made the connection from "cooking" and "jones" to drug manufacture.

These assumptions of what a Reasonable Person knows, however, may be complicated by language barriers and even by a failure to acquaint oneself with certain aspects of American culture. My mother has lived in the United States for almost 30 years and speaks standard English, but I would be willing to bet that she wouldn't understand the above to be slang about narcotics, instead assuming that "jones" referred to a person and "cooking" to food production.

Assuming that the defendants in these cases have decent defense attorneys, I suspect that prosecutors will need instances like the retailer who specifically told a customer that he would not report him in for buying suspicious quantities of meth-making material, or even just a retailer who had been ordered clearly and unmistakeably to call law enforcement in such cases and failed to do so. A convenience store owner who simply nodded when customers talked about cooking crystal is going to be more difficult to convict, especially if the defense uses expert testimony about the gap between immigrant retailers and black market culture.

UPDATE: A friend e-mailed the story to me, with the message "If I am pissed, you better be pissed too." I wouldn't say that I'm pissed, exactly, because insofar as the general War on Drugs makes sense, law enforcement needs to prevent the sale of products that are going to be used to make drugs. I'm only troubled by the possibility that people who really didn't know what was happening, and who didn't know because of culture gap, are going to prison for their ignorance. (Which turned out to be irrational ignorance, in contrast to the kind of ignorant Will Baude often characterizes himself to be; as one Ms. Patel said, "I think you need all this bad knowledge now if you want to live here.")

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August 2, 2005

For Heaven's Sake

Apologies for posting on the John Roberts Supreme Court nomination twice in a row, but this E.J. Dionne piece in the Washington Post misunderstands jurisprudence so thoroughly that I couldn't resist. Dionne declares that Democratic Sen. Richard Durbin is justified in asking about Roberts's religion because

a) Republican Tom Coburn has said that Roberts's "personal faith" reassures him about how the judge will rule on culture of life issues; and
b) pro-choice Catholic Mario Cuomo said, "the bishops who went after Kerry would have to say that it's different for a judge, but that would be very hard to explain."

a) Why are we paying attention to someone who worries about lesbians in the bathrooms ?
b) No, it wouldn't.

Politicians make decisions based on the wisdom of a policy, and their opinion of its wisdom may well be influenced by religious teachings on the subject. I don't think that someone's own preference on whether to have an abortion or euthanasia should make the law for the rest of us, but I accept that it is how things are done. We have seen the difference in how the Executive's preferences play out in policy with the difference between the Clinton and Bush II administrations on fighting Oregon's assisted suicide law; Janet Reno refused to take action against doctors, while Ashcroft sought to take away medical licenses.

Justices, on the other hand, make decisions based on the Constitutionality of a policy. Do justices' constitutional philosophies tend to track their policy-outcome preferences? Certainly, but there are frequent divergences, as when liberal pro-medical marijuana justices had to rule against California's program in order to maintain their expansive commerce clause, and anti-pot but pro-states' rights O'Connor dissented from that opinion. In the "culture of life" area, a federalist justice may feel obliged to rule for the state in Ashcroft (now Gonzales) v. Oregon, even if he opposes assisted suicide as a policy matter.

To tiptoe into really personal territory, consider the line of privacy cases. The political focus is on Lawrence and Roe, ignoring the intellectual basis for those controversial decisions: Griswold. The Catholic Church technically prohibits contraception, but while the nine-times-a-father Scalia may hew to that rule, the younger generation of which Roberts is a part is less likely to do so. (Roberts and his wife married in their early 40s and adopted two children.)

Without delving any further into an individual's choices, I would assume that Roberts probably doesn't think contraception should be illegal. (Ditto Clarence Thomas.) However, in the unlikely event that Griswold comes up for review, he may well vote to overturn it as part of his Constitutional beliefs, not his Catholic ones. It is therefore the former and not the latter about which we should be asking.

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August 1, 2005

Some of My Best Friends Are Federalists: A Personal Reflection

"For the record: Yes, I am a card-carrying member of the Federalist Society. But the more important question is, why aren't you? This is an organization whose purpose is to encourage debate, so it naturally begs the questions."

There's probably a special hell reserved for someone who misquotes Aaron Sorkin to talk about an organization that's supplied so many Bush Administration legalists, but as my ACLU membership card shares a wallet pocket with the FedSoc one, I couldn't resist. There's an important deletion from the original: the American Civil Liberties Union asserts its sole purpose as being defense of the Bill of Rights (except for the strongest reading of the 2nd Amendment), whereas the Federalist Society, despite claims that it is only for debate, asserts certain views associated with conservatism on its own website. And while I agree with almost every ACLU position, and am inclining to delete the exception and join their opposition to campaign finance reform, I'm neither conservative nor libertarian and am deeply suspicious of any call to restore "traditional values."

However, being a FedSoc member is not as simple as some would make it seem, and so I wanted to comment on this New York Times article about it by talking about my own experience.

Unlike Judge Roberts, I paid my dues ($5 for a student) and am a formal member, with no squirming about being part of leadership without actually being a member. Also probably unlike Roberts, I participate in FedSoc for the intellectual challenge rather than comfort and support of my fellows, because I generally disagree with what they say. Like Roberts's would, my membership card identifies me as "Mr." Unlike Roberts, I am not accurately addressed this way, and I somewhat suspect that the error is due partly to the predominance of white males in the organization, such that the person who makes the cards is both unfamiliar with non-European names and statistically justified in assuming that I would be a Mr.

As founder Stephen Calabresi noted in the article, federalists often can disagree with one another. At February's student conference, I was not the only person disgusted by Hadley Arkes's equating homosexuality with pedophilia; doubtlessly among others, genuine federalist Amber Taylor felt the same way.

That same conference got me set up with my summer housing, so while FedSoc hasn't advanced my career, it helped to get me out of NYC for the summer. The mail that the person from whom I'm subletting gets is eye opening (the latest edition of Clarement Review of Books implies that William F. Buckley Jr. brought down the Berlin Wall), and he has a full library of conservative books, including two copies of The Road to Serfdom. So even Federalists who don't talk to you about law or politics can put ideas before you.

When the people who own the building asked me how I met their renter, I told them about the conference, and they asked, "What does the Federalist Society believe?" Being on the spot and without Calabresi's guidance, I tried to give an example. "If you take something like the death penalty, most federalists would say that the Constitution's Eight Amendment permits it, because either they think we should be guided by what the Framers thought, and they had execution, or that we look at the words' meaning and execution doesn't meet the definition of 'cruel and unusual.' That doesn't mean that they're all pro-death penalty, just that they don't think the Constitution keeps the states from executing people if that's what the states want to do."

My own situation proves that membership in the Federalist Society doesn't actually tell you much about a person. Unlike the Heritage internship program, FedSoc doesn't make you fill out a questionnaire about your beliefs before they let you in. Looking back at this post's title, I have to admit that only one of my best friends is a federalist, and I use the little "f" because I'm describing a viewpoint rather than membership; the person in question probably doesn't pay dues or otherwise significantly participate in the capital "F" FedSoc. So if membership is what counts, I'd be a worse candidate in People for the American Way's eyes than my friend would be. A sad break with PFAW after they trained me to help with Gore's campaign in 2000.

Instead of this pointless focus on whether or not Roberts is a Federalist, a more useful line of questioning would be on whether or not he is an originalist, a textualist, etc. Or, as New York judge Robert Smith claimed of himself when being honored by the Federalist Society, without such an easily-described or yet-ascertained philosophy of Constitutional interpretation. The senators even could ask questions like, "Of the opinions in Kelo/ Raich/ the Ten Commandmants cases, which did you consider the most correct reading of the law?" in order to get a clear picture of how his understanding on certain issues aligns with that of his future colleagues and the woman whom he'll replace.

I call the Court and O'Connor that with no qualification, because Roberts will be confirmed and the Democrats shouldn't make asses of themselves over it. Queries about the Federalist Society, as well as Catholicism (an association with even less relevance to Constitutional interpretation than FedSoc) go in the category of "making oneself an ass."

This is not to say that there should be no questions about Roberts's jurisprudential views; I put forth the above example as a way to avoid asking Roberts to pre-judge future cases or say that he wouldn't apply the relevant precedent as a lower court judge, but still understand something of what he thinks. The public has a right to know a little about what their next Supreme Court justice has in his mind.

Just not in his wallet pocket, next to the expired Amnesty International card.

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