Stop Kicking the Door Opener

KVH has just sent out an e-mail highlighting the perils of going to school in a building that's open to the public. The e-mail in its entirety is included at the bottom. I don't mean to trivialize the serious safety concerns that students face, but I did want to point out my favorite parts of this e-mail.

UCPD has been working with us to locate a person who has been staying in the building overnight. He has surprised both staff and students who have been in the building early in the morning. He appears to have severe mental health issues. He is about 5' 10" with a thin build, perhaps in his 30s. He has medium brown skin, short dread locks, and facial hair. He typically wears light gray sweat pants and sweat shirt and light colored running shoes with reflectors that are laced with the tongues hanging out. He has significant body odor.

How hard can it be to track down a guy who has significant body odor?

If this person (or anyone else whom you have concerns about) is just wandering around the building you should call UCPD dispatch at 510 642-6760 (or 2-6760 from a campus landline). If, however, he is causing a disturbance, or appears to be a threat to himself or others, then call 911 from a landline phone OR call 510 642-3333 from a cell phone. UCPD strongly prefers that the person who observes an incident call UCPD (rather than your reporting the incident to law school staff first) because they need to get your direct observations. But we would also appreciate it if you emailed Director of Operations GAR Russ*ll <gar at law dot berkeley> or me, so we are aware of any problems.

Because remembering which phone number to call is easier than finding a CSO. Or Mindi.

[W]e ask that if you are entering the cafe or commons from the east and west courtyards that you DO NOT use the disabled access buttons unless you are in a wheelchair or otherwise disabled. When you use the automatic opener the door remains open for a full 15 seconds (enough time for a wheelchair to enter). Unauthorized people are entering the building without a key card in the evening and on weekends this way. The other reason we ask you not to use the disabled access buttons is that many of you are kicking the opener button too hard.

My bad.

----


Original E-mail

We've had a few of security incidents that required assistance from UCPD in the last few days. I wanted to let you know about them and remind you of how to respond. In addition, please review UCPD's website about safety on the UCB campus.

UCPD has been working with us to locate a person who has been staying in the building overnight. He has surprised both staff and students who have been in the building early in the morning. He appears to have severe mental health issues. He is about 5' 10" with a thin build, perhaps in his 30s. He has medium brown skin, short dread locks, and facial hair. He typically wears light gray sweat pants and sweat shirt and light colored running shoes with reflectors that are laced with the tongues hanging out. He has significant body odor. When people look at him or speak to him he often becomes agitated, as well as verbally abusive and (on one known occasion) physically aggressive. If you talk to him or get in his path he may yell and use hostile language.

UCPD advises that you do not engage in conversation. Instead, walk away from him and when you get to a safe place call UCPD immediately. Be prepared to describe his location, give a physical description, and a description of his behavior. If this person (or anyone else whom you have concerns about) is just wandering around the building you should call UCPD dispatch at 510 642-6760 (or 2-6760 from a campus landline). If, however, he is causing a disturbance, or appears to be a threat to himself or others, then call 911 from a landline phone OR call 510 642-3333 from a cell phone. UCPD strongly prefers that the person who observes an incident call UCPD (rather than your reporting the incident to law school staff first) because they need to get your direct observations. But we would also appreciate it if you emailed Director of Operations GAR Russ*ll <gar at law dot berkeley> or me, so we are aware of any problems.

We also had two other incidents that required UCPD response. Both occurred late Wednesday afternoon. One involved a man who was stopping law students in the hallway, apparently trying to get legal assistance. When students declined to talk to him he refused to leave and aggressively pursued some students down the hallways and into the cafe. This person was approximately 45-50 years old, over 6 feet tall, with pale, white skin, and longish brown hair that was mostly covered by a black, derby hat. He wore somewhat colorful clothing and carried a large, yellow walking stick. Police officers explained to the man that he could not get immediate legal assistance from law students attending classes. He resisted leaving but after about 30 minutes he agreed to exit the building.

The other incident involved a person who seemed to be having mental health or drug reaction issues. He asked a student for help in getting food and books. When she tried to assist him he became increasingly agitated and engaged in inappropriate physical contact with the student. She immediately reported the incident to the library's CSO who was duty near the cafe elevator and he radioed for support. UCPD responded quickly and called paramedics. The man was transported to a hospital for observation. We do not have a detailed description of this person, other than that he was a young, thin, (perhaps Asian) male.

As always, we are concerned for your safety and well being. We would prefer that students (and staff) did not use the building after the library closes, but understand that sometimes you need to be here doing journal or other work in the Student Center or your offices. Please take care not to leave doors open or to let people who are not known to you into the building. And be aware of your surroundings.

Finally, we ask that if you are entering the cafe or commons from the east and west courtyards that you DO NOT use the disabled access buttons unless you are in a wheelchair or otherwise disabled. When you use the automatic opener the door remains open for a full 15 seconds (enough time for a wheelchair to enter). Unauthorized people are entering the building without a key card in the evening and on weekends this way. The other reason we ask you not to use the disabled access buttons is that many of you are kicking the opener button too hard. This is causing the mechanism to stick, leaving the door entirely open.

Thanks for your cooperation and have a good and safe holiday weekend.

CDAAIIAFEBAMN v. Nobody

A few days ago, the Ninth Circuit heard argument in Coalition to Defend Affirmative Action v. Brown. (The appellant is known as BAMN, although a more correct acronym would be CDAAIIAFEBAMN, even if you drop all the articles.) Like other important cases, the Court recorded the hearing and uploaded it online.



Now, my general legal ignorance is particularly acute in this area, so I can't comment on the strength of either argument. But the video gives some clues, and here are my observations:

1. There is no quicker way to lose an appeal than asking a circuit panel to overturn a prior circuit panel. They can't. So unless you are putting all your eggs in the basket of en banc reconsideration*, you have to put 110% of your energy into distinguishing the precedent. It should be your No. 1 objective. And here, the appellants don't really seem all that into doing this.
   
   * This would be a pretty dumb strategy, by the way.
   
   
2. If you stop getting questions, and the judges are just looking bored while you drone on, then you've already won or lost the panel. In either case, take the hint and sit down.

What I find most interesting is that, like the Prop. 8 case, the California government has refused to defend the constitutionality of the voter proposition. In fact, they argued against it, leaving the proposition's proponents to defend it in court. Now, I personally think the voter initiative system is terrible, and I vote against nearly every voter initiative as a matter of principle. But still, voter initiatives are the product of direct democracy, and they are constitutional amendments to boot. The California DOJ has at least as much of an obligation to defend the legality of the California Constitution as it does the laws passed by the California legislature.

I respect that Governor Brown doesn't agree with Proposition 209 as a matter of policy. But that can't be a good enough reason on its own to refuse to defend it. The Ninth Circuit has already held that Prop. 209 is facially constitutional, so the present litigation appears to be an uphill battle (and one that panel--comprised of two Clinton appointees--doesn't appear to support). Unless the governor has a strong argument for an initiative's constitutionality, I think he has an obligation to do his best to defend it in court.

And what if an initiative's proponents do not have enough resources to adequately defend the initiative (that is, the California Constitution)? Does the Court then enter a default judgment and invalidate the state constitution? So many aspects of this trend seem problematic to me.

What Would You Do: Post-Apocalypse Edition

Maybe it’s because today is Valentine’s Day (and I kindof can’t resist shitting on a day dedicated to chocolate hearts and the color red), or because the Mayans have predicted the world will end this year, or maybe just because this blog has become so damn morbid lately (and if you’re going to do something, go for the gold baby)—but today, I'd like to pose a question that drunken frat guys and science fiction nerds have been debating since time immemorial: Post-apocalypse. What would you do?

Allow me to set the scene. Several unforeseen earthquakes have destroyed most buildings, streets, stores, etc. in your area. Random shit is on fire. Electricity isn’t working. There’s no news on how far-reaching the destruction is; for all you know, the destruction could just be in Berkeley / SF / whatever city, or it could be the whole state—or even (gasp) the WORLD!! Your goal: Survival.

Here’s some guidance on how to properly debate what to do in a post-apocalyptic alternate-reality. I am not ashamed to admit that I’ve discussed this enough times to know people generally fall into two camps: (1) Faith in Humanity (ban together with your fellow man), or (2) Humans? Screw Humans!! (run for the hills). If you’re creative enough to come up with other options, I’m genuinely interested and want to hear in the comments.

It’s a close call, but personally, I fall into the F(@#$ Humans camp. I’m not a general people-hater or anything, but I do think that people react unpredictably under stress. That’s why, if I ever live to see a post-apocalypse, I’m going to grab whatever survival implements I can find nearby and go live in the Berkeley hills (I hear Lake Anza is lovely) or an equally suitable mountain range. So long as I can start a fire and scavenge for small animals and plants, I think things would be OK in the short-term. The long-term plan? Wait. See if helicopters are coming to rescue people and the damage really isn’t that widespread (if so, rejoin fellow man). If time goes by and it becomes apparent the chaos was far-reaching, spy on the people who chose to band together and see how civilization appears to be working out (if it's working out, rejoin fellow man on the condition that they make me their leader). Meanwhile, recruit a badass doctor/nurse and/or Woody Harrelson to join my wilderness team. Ad hoc goals: Build tree-house. Learn how to kill big animals and make a bear-fur cloak. Make out with Woody Harrelson.

On the other side of the debate, I’ve met people who are like—come on, don’t be crazy. Obviously, people will be nice to each other and not loot each other’s shit and fight over whatever food they can salvage from crumbled-down-Safeway. Humans, after all, have not come this far by being big meanies! (OK, now I’m editorializing.) Anyway, it would be much more sensible to find a working car, and try to drive away from the post-apocalypse zone to someplace like Nevada where hopefully the supermarket isn’t crumbled-down. I’m sure there’s more to this side of the debate, but I’ll leave that to people who feel really passionately about it.

A final note: For those of you who have read this far and are thinking something like “OMG, what a terrible thing to think about,” or “This hypo is total BS, my iPhone will never die because that's technologically impossible...” please comment here.

For everyone else, the question remains... what would YOU do??

Buzz Killington

I hate to be Buzz Killington (though I wonder if there is really any buzz to kill here...) but does anyone else feel like the Gun Club pranks serve only to create extra work for an already-stretched-thin cleaning staff?

This is how the Fishbowl looked as of 8am this morning:







At the very least, they should be smart enough not to fill a mesh trashcan with ice... there was a pretty good amount of water on the carpet.

9th Circuit Finds Prop 8 Unconstitutional

You can download the decision here (PDF). There's a lot to chew on, but the decision appears to be limited. It doesn't say that there's a constitutionally protected right to marry under the Due Process or Equal Protection Clauses, but rather, that eliminating an existing substantive right for a particular class of people is unacceptable.

I'm not a huge fan of judicial minimalism, but this decision seems crafted for Anthony Kennedy in light of his opinion in Romer v. Evans.

Thoughts?

The Wonderful/Dreaded Class Campaign

A commenter asks:

Can we have a thread on the class campaign? I am a 3L and I don't really understand what it is. They are doing a poor job of explaining it. Is it just a fundraising campaign? Does the money go for a class gift or something (ie. named bench or sculpture)? Why do people seem to have such polarizing views on this? I'd appreciate anyone's thoughts. 

I figured I'd take a stab at each of the questions posted.  

Can we have a thread on the class campaign?

Yes.

Is it just a fundraising campaign? Does the money go for a class gift or something (ie. named bench or sculpture)?

I love how use of the phrase "just a fundraising campaign" betrays how as law students we are conditioned to expect some fringe benefit any time money is forked over.  You don't just donate, you go to an auction! Or a prom barristers' ball. In a way, this trend continues beyond law school. Soon politicians will ask you to pay $2500 a person for dinner (about 10x more if it's a political party dinner). But when it comes to law schools, they just pretty much whack you over the head and ask you to open your wallets. The class campaign is your gentle introduction to this wonderful tradition.

I'm sure someone can explain it in better terms than me, but unlike say your undergrad where the class gift to the school was a park bench, Boalt's annual class gift is the donations that the members of each class make to the school. If I remember my class campaign, you could pick and choose precisely where your money goes, e.g., your favorite journal (BJIL shout-out), your favorite clinic (CARC!), financial aid, etc.

Why do people seem to have such polarizing views on this? I'd appreciate anyone's thoughts.

This has been debated ad nauseam. The problem starts with the goal of having 100% participation in the class campaign, i.e., every member of the class donate something, anything. Why does this matter? Because then the school, when it's whacking alumni over the head for money, can claim 100% participation in the class campaign, which only raises the question of whether alumni give a sh*t about these things. I think to an extent it matters. I don't think anyone gets hung up on 100% vs. 98%, but I think when students have an active interest in gifting to subsequent generations, then it gives us the comfort that the current stakeholders are just as invested. This may not be the perfect analogy, but at some psychological level, even as practitioners we come to work much more inspired and motivated when the client is just as invested and eager. So, yes, a large level of participation from the students helps further raise money from alumni.

What's so bad about that? I think some tension and friction begins to build because a) some people are opposed to donating when they are six figures in debt and b) when the number of students who have not donated becomes small, these students are very aggressively targeted. Sometimes even suggestions of "let us donate in your name" are thrown around. This can rub people the wrong way. I can't quite put my finger on it, but there is something unsavory about it. As I suggested above, the actual numbers aren't as meaningful as the message they carry. And I think I'd prefer if that message were based on each student's volition and conscience, as opposed to some behind the scenes arm twisting.

All that said, the Class Campaign is a great opportunity to give back to a school that you will be a part of forever. I won't go into detail how the school becomes an integral part of your very being, but suffice it to say, being a Boaltie is probably the most defining aspect of who I am as an attorney. Honestly, only the extreme cynics among us can walk away and truly never care about the school or ever look back. To those, I say good riddance. And I really hope no one donates a penny in their name.

If I May...

While we continue to mourn the loss of Polly, I wanted to briefly interject to pass along some uplifting news regarding the Boalt community, namely the appointment of my classmate Sonia G. as the executive director of the California Bar Foundation (the non-profit that you can donate to when filling out your bar payment forms).  The broader mission of the Bar Foundation is to increase access to justice, but as it relates to law students, the Bar Foundation offers scholarships for students from underrepresented communities as well as those who'd like to work in the public interest sector.  No doubt, Sonia will continue with the Bar Foundation's mission full steam ahead. 

Polly

Dean H*rshen just sent out an update about Polly, who's been on medical leave for a while:

Dear students,

Some of you have been asking about Polly. After consulting with Polly and her family, Mind* and I wanted to let you know that Polly is gravely ill and unlikely to recover. She has a very aggressive form of cancer that has progressed rapidly. Many of you have asked what you can do and if you would like to drop off a card for Polly, we will be taking them to her. This is a very sad time for us and we know it may be difficult for some of you as well. If you would like to talk about this, please feel free to come by our office.

Best regards,
Dean H*rshen

For those who don't know, Polly is the friendly lady in student services who works with M*ndi and Dean H*rshen. She's the person who you talk to when you dropped off your BHSA reimbursement requests, fill out those pink forms to get card access to a journal office, or pick up facebooks (the physical ones). She also has candy in her office.

When I was on BHSA, I often had to work with Polly to schedule meetings and handle event logistics. She was kind, funny, and helpful, which is really all you can ask of someone.

I know there are people passing around cards for students to sign. If you're one of them, would you mind posting in the comments about when and where the signing is happening?

Update (1/30): Polly has passed away. The following e-mailing was sent out today:

Dear Students,

I am very sad to let you know that Polly Paterson passed away this weekend. As you know, Polly had a very aggressive illness and her health deterioated rapidly in the last week. Her entire family was able to be with her last week and they were a wonderful source of support for her. I was able to deliver all of the cards you gave us last week and Polly received them before she passed away. If you have cards for Polly, please continue to drop them off with us. We will give them to her family members, who I know will appreciate hearing how much the community supported her.

We will be having a memorial service for Polly at the Law School and as soon as we have more details, I will let you know. There will be a funeral for Polly and as soon as I have those details, I will let you know as well. Polly's family has let us know that anyone from the school is welcome to attend the funeral.

As Polly's illness was so aggressive, many of us have had very little time to process what has happened. Everyone expresses their grief differently and your reactions may be impacted depending on your relationship with Polly, if you have experienced other recent losses, or if it is a significantly stressful time in your life. What is important is to support each other in the days and weeks ahead. We know that many of you will get comfort from your friends and family. However, talking to a professional counselor can also be helpful if you have strong feelings or if you are concerned about your reactions in any way. For students interested in support please contact: Counseling and Psychological Services (CPS) located at the Tang Center. If you would like to talk to a counselor, call 510-642-9494. Students can also be seen on a drop-in basis between 10am-5pm.

Of course, please feel free to come by our office and talk to either me or M*ndi if you would like to talk more about what has happened.

Best regards,

Dean H*rshen

SOPA / PIPA Update

Two quick follow-ups to Wednesday's online blackout:

First, in the face of tremendous opposition, both SOPA and PIPA have been put on hold. Yay Internet!

Second, the day after the online protests, the Department of Justice took down the MegaUpload file locker based on allegations of piracy and is now pursuing a criminal case, even without SOPA / PIPA. If everything in the indictment is true, things don't look good for MegaUpload.

But the DOJ's actions are extremely questionable from a due process perspective. MegaUpload was making efforts to comply with DMCA takedown notices. MegaUpload had also filed a complaint in a U.S. Federal Court against the Universal Music Group for abusing the DMCA takedown process. The allegations in the DOJ's indictment resemble the claims Viacom made in a civil action against YouTube, and in which YouTube has so far prevailed. In short, there's no good  reason why the government had to pursue a criminal case and unilaterally take down the sites. These claims could have been resolved with a civil action and preliminary injunction, which would have provided for an adversarial hearing prior to shutting down the site. As it is, it gives the unfortunate impression that the DOJ is acting as a hired gun for the MPAA.

Why SOPA and PIPA Are Bad News

Wikipedia, Google, and a number of other sites (including Tort Bunnies) have blacked out or partially censored themselves to protest the Stop Online Piracy Act (SOPA) in the House and the PROTECT IP Act (PIPA) in the Senate. The two bills would establish a "Great Firewall of America" to block access to foreign websites that infringe upon American intellectual property rights.

A few reasons for why the bills are bad:

First, the blocking would be overbroad. Proponents of the bills argue that the bills are narrowly targeted at infringing content. Unfortunately, infringing content is frequently "bundled" with non-infringing content. For instance, it's technically difficult to censor the parts of your Facebook news feed that violate copyright law without blocking Facebook altogether. Yet because the bills penalize Internet intermediaries who under-censor but immunize those who over-censor, even a narrowly tailored court order would likely result in the take-down of perfectly legal content.

Moreover, the U.S. government hasn't exactly shown a great deal of competence in discriminating between legal and illegal sites. For example, DHS recently seized the domain name for the Dajaz1 blog on the grounds that site was dedicated to violating copyright laws. But DHS never filed charges or initiated court forfeiture proceedings. It took over a year before DHS admitted it made a mistake and returned the domain name to its owner. That's under existing laws. Give the government an even bigger hammer, and more sites will start to look like nails.

Second, the anti-circumvention provisions would hurt human rights activists. SOPA would criminalize the distribution of technology that could be used to circumvent the Great Firewall of America. But that same technology is also used to circumvent the Great Firewall of China. From a political perspective, there's a huge difference between censoring the Wikipedia article about the Tiananmen Square protests and censoring The Pirate Bay. But from a technical perspective, there's none. In going after pirates, SOPA and PIPA would trample all over the community of developers assisting political dissidents in countries like China and Iran.

Finally, the bills would make the Internet less secure. Some of the proposed measures would mess around with the inner workings of the Internet's domain name system (DNS). One proposal would let the Attorney General redirect all requests for a pirate website to go to a special page notifying users that the website was taken down. Unfortunately, there's little technical difference between that and redirecting all requests for a banking website to a special page that steals your password. In effect, SOPA would break technology designed to protect your personal information and online identity.

So ... bad news all around. To learn more, visit americancensorship.org. And call your Senators and Representatives!

"You've got to analyze by it upward in the air . . . . Our Recognized N&B forecast: Bieber will probably be Onceling inside of weeks."

Little known fact: we get lots of spam comments here at N&B. We do our best to stay on top of deleting it because generally it truly is most worthless – strange computer-generated references to internet relationships that bear no connection to anything in which anyone would be interested. Ever.

But every now and then our spam – for unknowable computer-generated reasons – strikes a chord. Every now and then, for reasons understandable only to the internets, the run-of-the mill spam at N&B manages to be just, well, perfect.

Exhibit A, from the Onceling thread:

With what can only become identified as "the newest thing, in Onceling usually takes Boalt Corridor through hurricane.

Precisely what is Onceling? It's a new move that will makes sense gratitude in order to both planking, owling and also understanding so hard in the course of finals your current bum affects and you've got to analyze by it upward in the air.

As pictured, the actual pose entails located on your knees using reading through content in front of see your face, your current biceps and triceps or perhaps hands also positioned on the outer lining till you and your rear prolonged. Be on the look out with this very hot brand-new move at your nearby bar as well as eating place. Our Recognized N&B forecast: Bieber will probably be Onceling inside of weeks.

From whence did this comment originate? Who knows?

It was posted by "英文seo", who plainly and undoubtedly is a scrupulous N&B follower and front-row disciple of esteemed Professor B's public land seminars. Beyond that we will leave it to you, dear reader, to pontificate in the comments.

Removal is for Nerds

For those of you who just finished taking CivPro, maybe you were already aware of this. For everyone else, on December 7 Obama signed into law the Federal Courts Jurisdiction and Venue Clarification Act of 2011, H.R. 394, P.L. 112-63.

The Act significantly modifies the situations in which a defendant may revove cases under both federal question and diversity jurisdiction. Linked to this article is a brief summary.

In even briefer summary:

-The 30 day removal clock now runs for each defendant when they are served, which resolved a circuit split. The Ninth Circuit rule was the same as the new codified one.

-Treatment of resident aliens: The Act clarifies that resident aliens are not citizens for diversity purposes. In other words, two aliens suing each other and are domiciled in different states cannot invoke diversity jurisdiction.

-The Act clarifies that corporations are citizens of both their state of incorporation and their primary place of business.

-District Courts will no longer have discretion to decide unrelated state law claims following removal. This is a significant departure: Before this change courts had the discretion to keep a case intact even where state law claims were entirely unrelated to federal questions. Now the case will be severed unless a court has supplemental jurisdiction under section 1367.

-Now codified is the widely-accepted rule that all defendants must consent to removal, except in class actions.

There are also numerous venue changes, which I will let others explain. My personal opinion is that V*tter will have to come up with some new jokes next semester.

Class of 2011 - We Miss You! We Need You!

The letter that follows comes to you from that great bar-oath-squatting, shoulder-peeking, Booth-occupying class of 2011, along with a few professor types who have signed on to the message:

Dear Class of 2011:

Recently, over a hundred of us returned to Boalt Hall to be sworn in as members of the Bar. Together, we returned to new buildings, old teachers, and lifetime friends to cross that final Rubicon of law school. We are thankful for those that have helped us make it this far, and we are proud to now be official members of this fine profession.

As one chapter of our education ends, another begins for the Class of 2015. As we uploaded our exams to ExamSoft, they packed their clothes to move to Berkeley, California. And as we swore our oaths, they were preparing for their first torts exam.

Now, more than ever, their education is in our hands. Their ability to enjoy the opportunities that we enjoyed—producing cutting-edge journals, working on death penalty cases, providing legal services to the local community, receiving Edley Grants for public interest internships—all of this depends on our generosity and support.

As you know, Sacramento has steadily withdrawn billions of dollars from California’s higher education system. The University of California at Berkeley, which the State and Cal alumni built over decades to become the pinnacle of the nation’s public higher education system, must now be sustained in large part by Cal alumni, faculty, and students. Reform will come, but in the meantime, it’s on us to preserve this invaluable experience for future generations. It’s on us, as alumni, to continue supporting the school that allowed us to become the leaders that we are and that we will be.

It’s on us to build.

Melissa Murray: Class of 2011, you are missed! Congratulations on entering this new phase of your professional (and personal!) lives! In your absence, things continue apace at Boalt. A new crop of 1Ls has arrived, new professors are settling into their offices, and the new building is bustling with activity. Amidst all these changes, I am reminded of what remains constant. Boalt continues to be a vibrant, exciting place to teach and learn. With your support, we can continue to recruit talented, energetic new students and faculty. We can expand our clinical and skills offerings, which help prepare our students for the challenges of legal practice. We can continue to support student groups and the unique extracurricular culture that Boalt has cultivated over the years. I know that these are challenging times, but I hope you will help us by supporting Boalt.

Eric Talley: To the Class of 2011 - I was thrilled to see so many of you in the CA Bar swearing-in ceremony on Dec. 2. Not only did you get a chance to see the completed new facility actually being put to daily use, but the event provided a real sense of closure for so many of you whom I was pleased to get to know while you were here. Although public education is in challenging territory, the level of excitement and activity at Boalt remains characteristically high. This is in no small part due to our students - both past and present - who continue to make this place so special. Our ongoing support for the Law School community -financial and otherwise - is an essential link in maintaining this institutional energy. Please stay engaged, stay well, and stay in touch.

--

Alumni will continue to double all our support of the Financial Aid Fund, ELQ Diversity Scholarship, and LRAP. We have never had as many resources at our disposal – financial, professional, and personal – at a time that our institution is more challenged than at any time. $50 matters – it becomes $100 because of matching alumni funds. Give your old clinic a new printer, and your journal a case of oatmeal. Give an aspiring attorney’s financial aid package a boost.

Happy & Healthy Holidays

Melissa Murray, Eric Talley, Lala Wu, Jay Purcell, and the Class of 2011.

"Onceling" Fad Takes Over Finals

In what can only be described as "the next big thing," Onceling takes Boalt Hall by storm.

What is Onceling?  It's a move that pays homage to both planking, owling and studying so hard during finals your ass hurts and you have to study with it up in the air.

As pictured, the pose involves sitting on your knees with reading material in front of your face, your arms or hands also placed on the surface in front of you and your posterior extended.  Be on the look out for this hot new move at your nearest bar or restaurant.  Our Official N&B prediction: Bieber will be Onceling within weeks.

"My Advice Is to do What Your Parents Did; Get a Job, Sir!"

A while back a person asked in the comments for advice and a thread for new or starting associates. As a new associate myself I’m not sure I can provide the advice but I can provide the thread.

. . . well, without venturing so far as to call it “advice,” I do have some suggestions that have helped me greatly during my clerkship and in the two short months I have been a litigation associate:

• Figure out a way to organize your email. For me, this is a system of folders and outlook rules. At the end of each day I empty my inbox and sent mail into these folders so that I start each day fresh. This also helps me review issues that came up during the day so nothing slips through the cracks. It may be different for you, but this little ritual has helped me to keep on top of things.


• Figure out a way to organize your tasks and assignments. For me, this is a running “task list” document that I keep on my desktop. Its columns are: task, due date, client, and status. I also update this at the end of each day, which helps me to stay on top of things.


• Figure out a way to organize your timekeeping. For me, this is combination of a downloadable stopwatch and a yellow sticky that sits next to my computer. There are about as many systems for keeping time as there are lawyers in the world so find what works for you, but whatever you do, don’t let timekeeping get away from you.


• If you are doing document review online, take some time to really learn how the platform works and how to use all of its features. This is another big time saver.


• Ask as many questions as occur to you, even if they feel (or are) dumb. Many of them will turn out to be not very dumb at all but that's not what matters. What matters is that you don’t know something, and you need to. So you gotta’ ask.


• All of the standard rules for politeness and professionalism that you received for OCIP and for your summer gigs apply to your job as well, but if at this point you need to read this bullet to realize that you probably are doomed.


• ‘Fess up to your mistakes immediately. I’ve made a few and the two lessons they consistently teach me are (1) pretty much every mistake you could possibly make has been made many times before, and (2) most things can be fixed if addressed quickly by people who know how.


• Write lots of stuff down. Get in the habit of being a jotter, and a saver of notes. Stick your jottings in a folder near your desk and ignore them until later when you suddenly find you urgenly need them. Which you will.
  


• Pay attention to the differences between being a law student and being a lawyer. My experience as the former has given minimal guidance in many important aspects of the latter. In a lot of ways I feel like I am starting all over again. It seems to me that, like the first semester of law school, now is the time to give it one hundred percent.

I am sure that the comments to this thread will be far more helpful than what I have posted above. In a year my own thoughts may be totally different. But this should get things going.

Open Note/Closed Computer: The Hidden Dark Side

Andrew does a great job illuminating the hidden underside of forcing students to print out their outlines.

Is the use of "find" really that big of a deal?  Does the advantage go to the tabber?  I have no idea.

Who Is to Blame for Siri's Abortion Incompetence?

You may have heard of the recent kerfuffle surrounding the apparent reluctance of Apple's new voice recognition application, "Siri," to locate an abortion clinic. Over the last week, groups like the National Abortion and Reproductive Rights Action League and the American Civil Liberties Union have spoken out against Apple because of the broader implications of the software glitch. In the preamble to a recent online petition by the ACLU to Apple: "[I]f Siri can tell us about Viagra, it should not provide bad or no information about contraceptives or abortion care. Send a message to Apple: Fix Siri."

But what exactly is causing the problem? A friend's gChat status sums it up nicely:

"I’m standing in front of a Planned Parenthood,” the CNN reporter says, “And Siri can’t find it when I search for abortion clinic.” No, it can’t. It’s not because Apple is pro-life. It’s because Planned Parenthood doesn’t call itself an abortion clinic.

Sigh. A pretty good rule of life is to never blame on malice what can be attributed to incompetence. Just because Siri talks to you doesn't mean she is anything other than a basic search engine.

I Just Want to Tell You Both Good Luck. We're All Counting on You.

Soon the results will come out.  A few years ago, co-blogger Danny Z had some insightful comments as he awaited the results.  This year, aside from the traditional pithy post that opens it up for commenters to vent any angst or frustration, I want to offer a list of DOs and DON'Ts.

1.  Do celebrate your bar passage with friends and family.  You become a licensed attorney only once.

2.  Don't celebrate by posting your name followed by "Esq." on Facebook.  In fact, never refer to yourself as Esq. or Esquire; it's really obnoxious.  Imagine if a judge introduced himself, "Hi, I'm the Honorable John Smith."  Esquire is no exception.  It's an honorary title that others may use to refer to you.  When people use honorary titles on themselves, they come off as pompous pricks.  We have Hastings for that kind of nonsense.  KIDDING!

3.  Do go home early to check your results.  You don't want to be at work.  Trust me.

4.  Don't feel like it's the end of the world if your name is not on the pass list.  Always reenter your info in case you had a typo...happens more often than you might think.  If it's not a typo, it's still not the end of the world. 

That is all for this year.  Only a couple of hours more of feeling like you're on a roller coaster that's continuously falling.  Good luck.

Breaking: Cal Supremes on Prop 8

The California Supreme Court has just issued its opinion on the recent certified question in Perry v. Brown, the Proposition 8 case. The short answer, so far as I can see, is that the case is headed back to the Ninth Circuit with only minimal guidance on the core inquiry: do the backer of Proposition 8 have standing to defend it?

Rather than read and contemplate the opinion, however, in true busy associate fashion I have given it a skim and will now fire off a few disorganized thoughts before turning the forum over to the comments where, no doubt, someone anonymous will do the hard work of saying something profound. Thanks for that in advance.

As you will recall, last year a panel of the United States Court of Appeals for the Ninth Circuit used the “certified question” procedure to send a portion of the case to the California Supreme Court. As Boaltie federal court nuts are no doubt aware, the procedure is designed to further our federal system of government by providing the federal courts with an avenue by which they may ask state courts to resolve “novel or complex questions of state law.” (This is also know as “judicial restraint” or “punting the question,” depending on the circles in which you run.)

In this case, the question certified was:

Whether under article II, section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

In plain English, what the Ninth Circuit really wanted to know was whether the proponents of Proposition 8 had standing to defend it from a constitutional attach in federal court. Obviously (at least to those Boaltie federal courts nuts), Article III standing presents a rather common question of federal law, and not a “novel or complex question” of state law. But by disguising the inquiry in language like “particularized interest” (see the quotation above), the Ninth Circuit hoped to find a backdoor path to the issue -- that language is designed to tip off the Ninth Circuit as to whether voter-backers of Proposition 8 have an interest under California law that also is legally cognizable under Article III of the United States Constitution.

If you wonder why a federal court needs a state court’s help with this issue (i.e.., with whether a person has been injured in a way that is cognizable under Article III), you’re asking good questions. And, according to my very hasty read of the opinion, the California Supreme Court is on our wavelength. Rather than state “yes, these voters have been injured,” the Cal Supremes have avoided that question and asserted only that the backers of Proposition 8 have chosen a procedural path that is valid under California law. That’s a distinction with a substantial difference: instead of accepting the Ninth Circuit’s invitation to answer its own standing inquiry (which was a question of federal law anyway) the California Supreme Court appears to have addressed the relevant California law and left the rest of matters as they found them. Good for them.

The next step is a return to the Ninth Circuit where, hopefully, the panel will commence to answering its own threshold question: have the backers of Proposition 8 been (1) injured, in a way that is (2) fairly tracable to the defendant's wrongful conduct and that is (3) redressable by court order?

All of the above comes with the caveat that I have not read the entire opinion. I’ll get to it later today, I hope, but in the meantime discuss away.

Faculty Strongly Condemns UC Actions Against Protestors in Letter to Birgeneau

In a letter sent to Chancellor Birgeneau, an impressive list of over 60 members of the Boalt faculty have condemned the UCPD and UC Berkeley Administration actions towards the Occupy Cal protestors. The letters also calls on the administration to follow Judge Brazil's report on the 2009 police brutality incidents and implement policy changes to prevent police violence and harassment towards UC students.

It's commendable that so many individuals on the faculty have taken such a strong stance on what has been happening at Cal. Here is the entire letter reprinted (with the faculty signatures after the jump):

Dear Chancellor Birgeneau and Vice Chancellors Breslauer and LeGrande,

We, the undersigned members of the Berkeley Law faculty, write to condemn in the strongest possible terms:

1. the violence directed against non-violent student, staff and faculty protesters at Sproul Plaza on November 9, 2011;
2. the temporary detention by police of two law students near the law school on the same day; and
3. the Chancellor’s public and explicit defense of the police action of November 9, 2011, which made inaccurate distinctions between violent and non-violent civil disobedience and which he apparently signed without having viewed the videos of the incidents at issue.

Sproul Plaza. The First Amendment enshrines the right to assemble peaceably, to speak freely, and to petition for governmental redress of grievances. Interference with these rights, particularly in the form of violence that was visited upon protesters in Sproul Plaza last week, is inexcusable by any government entity, but is particularly troubling at a public university. While the University may enforce its rules, including citing or arresting those engaged in acts of civil disobedience (such as linking arms and refusing to disband), there is no place for instigating violence in a community dedicated to the free exchange of ideas.

Kroeber Plaza. On November 9, in separate incidents, a group of officers detained two Berkeley Law students who were attempting to return to class after participating in the peaceful demonstration at Sproul Hall. The officers detained each student near Kroeber Plaza, though there had been no protest activity at the Plaza or the law school, and the students were simply walking back to class. Ostensibly, the officers were asking for identification. However, the accounts of these incidents provided by the two students and other witnesses – law students and law school faculty and staff – describe police actions that were unwarranted and excessive.

Going Forward. The police conduct at Sproul Plaza, and the humiliating and frightening police activity at Kroeber Plaza, have caused a number of our students to question whether they can safely come and go from the law school, much less exercise their First Amendment rights at our university. In addition to the urgent need for a thorough review of these events – including holding accountable those parties responsible for any actions that violated the civil and political rights of our community members – we call on the administration to:

1. implement immediately the recommendations of the June 2010 Brazil Police Review Board Report;
2. publicly support and defend the rights of community members – and especially our students – to engage in non-violent political expression; and
3. take all other actions necessary to reestablish Berkeley’s reputation as a beacon of peaceable assembly and free speech.

Sincerely,

Read more »

Shooting at Haas?

Students at Boalt: please be safe. Anyone with details, please provide.

The Most Interesting Boalt Profs in the World

Piggybacking off of the popular internet meme "The Most Interesting Man in the World" (which mocks the Dos Equis Beer ads), some internet savvy Boaltie has come up with his or her own version:

The site can be found here and it encourages us all to make and submit our own.

Town Hall Liveblog Kicking Off at 1235pm Today

Dean Edl*y will be having a conversation with the student body today at 1245 in Booth Auditorium.

We will be covering all of the action right here at your one and only Nuts and Boalts.

Andrew and I will both be blogging. I'll be kicking things off and Andrew will likely continue on this post.

James and Andrew here:

12:35 - Booth is cold as usual.  A few people are here and are generally impressed by Booth's new seats.  As discussed, Andrew will take over for me about halfway through (or if I start to talk too much).  Or he might post intermittently.  We're figuring out the structure as we speak.  Any bets on what Edley will say?   I'd expect that the crowd is pretty pro-99%, but you never know.

12:35 - Some clases have been cancelled for tomorrow due to the general strike in response to the UCPD's brutality and the general UC response to the protests.

12:36 - Some professors are asking media services to film the classes, but ironically, the media services people may strike too. So some classes might only have audio recorded.

12:38 - M*ndi is here.  I'm going to ask her about the action figure idea as soon as I have the chance.  Auditorium continues to fill up.  No one has any illegally sized signs.

12:44 - No DE in sight.  Maybe he's waiting to make a grand entrance.  Booth is mostly full.  Not sure how many people it holds.  There are too many Castro baseball caps in here for my taste, but that's a personal problem.

12:45 - Right on time DE makes his way to the front.  Several professors are also in attendance in the audience.

12:47 - And by on time, we mean fiddling with mics for a few minutes.

12:48 - DE just spent the last few moments talking to one of the Student Regents.  He opens by saying he has nothing prepared, but wants to make a couple of points to get things started:

- He's watched several of the videos and he's read several things and most of what he saw was "pretty standard protest fare, but some of what I saw was shocking and unacceptable and just not my university."  This gets applause.

- He can't understand nor imagine the circumstances that could have created any justification for using batons and he certainly saw nothing of that sort and couldn't even imagine what the justification might have been.

12:50 - Apparently, both DE and the Chancellor were at the same event in Shanghai. DE's not sure how familiar the Chancellor was with the circumstances.

12:51 - DE: "I have been criticized for acting as though I believe the law school is a world unto itself. and I plead guilty to that. But one of the consequences of that is that we have zero control over the police."

12:53 - Things last week didn't go as well as ordinarily because the Alameda County Sheriff's Office don't have the same set of sensibilities and relationship with our law school folks and there were some harsh words exchanged by M*ndi and KVH and the police.

12:55 - DE has several responsibilities:

- Giving us the best legal education in the world.
- This doesn't include being stopped and questioned and interrogated; feeling threatened; feeling unsafe and DE will be taking steps to communicate with the police and the Chancellor to communicate what he believes to be unacceptable police behavior towards our students at Berkeley.
- Also is responsible for being a teacher and he's going to get pedantic on our asses.

12:55 - I'm going to posit that the Chancellor didn't have any independent sources of information apart from what the police said when he sent out his infamous "linking arms" e-mail. Also, YouTube sometimes doesn't work in China, so he may not have seen the videos. [AFong]

12:55 - DE: As a tactical matter, sometimes you want to get in trouble with the police, so "be mouthy".

12:56 - DE makes it clear that cops can misbehave when you act out towards them and that this is something that DE knew growing up and we should as well.  He's now asking us to be lawyers and put ourselves in the shoes of the cops and that Berkeley students, from their point of view, must be "privileged, entitled kids" and the students have an enormous amount of power over the police.

12:57 - When students file a grievance the life of that officer can be hell.  DE is now saying we have more power than the cop does.  I don't think this is accurate, but I think he means in a societal sense.  So the chances they'll act out are high because we have more societal power and they have more on the ground power.

12:59 - There are serious problems with the training and disciplinary measures within the department.  There are huge problems with the way they coordinate with outside agencies.  But, what about deploying riot police at all? That seems like a UC position and not simply a UCPD position.

1:00 - Incidents of police misconduct are not as significant as the movement itself and the issues and that we move past this as quickly as possible and try to change the world instead of Cal.  This is some great advice.  But, the police are deployed in order to keep the status quo.  Oh man, the comments are now open.

1:02 - And of course it's immediately a personal anecdote.  And now the Dean is being told he was mocking.  He's been told he's consistently mocking at town halls.  A few people booed, basically this individual is super pissed because of all of the problems at Cal ever.  Fee hikes have been brought up and now he's being called out on how the cops are taking orders from the administration.

1:03 - For those not clear, shit has just gotten real.  DE apologizes for his tone as he does not mean to mock and he wants to be clear.  This is the right way to deal with the criticism.

1:04 - DE: "The 99% issue in the larger scheme of things is more important than, uh (long pause), is this about fee hikes or the police misconduct?"

1:05 - Commenter: You're trying to tell us about police misconduct as something we don't know anything about. "We live next to Oakland" DE: Maybe you're more of an expert than the rest of the people here.

1:07 - DE: "I disagree with you about the fees. If you want to talk about the fee issue, we can talk about the fee issue." DE thinks this is distinct from the general education policies of the state and the federal government (and this is what, he thinks, OWS is talking about). But "he has to manage for today while thinking about tomorrow."

1:08 - We've moved on to another commenter who wants two things:

- Wants to have assurance that regardless of what kind of influence you think you have with the police that you are expressing your displeasure with what has occurred.  Who do you plan to talk to?  What do you plan to say?
DE response: Spoken with the Chancellor and the President of the University and he will write something in addition.  I'd like to see it in a big media outlet in the Bay and on the internet.  He expects that the chancellor will act.  He doesn't know to what extent the administration was involved in the tactical decisions or the clear rules of engagement for dealing with the protestors.  It doesn't appear that they have clear or good rules of engagement.  "I do know the administration does not want a semi-permanent encampment on the campus."

1:13 Commenter thinks everyone is united against the brutality (take that anon) and she wants the Law School to take a leadership position on this issue.

1:14 - DE immediately waffles about what the school's role should be regarding this issue.  Faculty are encouraged to make statements and DE needs to think about what he should do publicly.

1:15 - DE contrasts "publicly" berating the Chancellor about how to do his job with quietly advising him.

1:16 - DE does not think linking arms is violent protest and disagrees with the Chancellor and how do we respond to campus leaders making statements like this?

1:17 - Comment from the peanut gallery:  "it sounds like DE wants to think about some things. wasn't this his forum for expressing what he's thought about?"

1:17 - DE talking about China now and rule of law. Concern about how vague rules chill speech. Likewise, unclear what is acceptable and unacceptable here. DE will press for clarification about the linking arms issue and where line should be drawn.

1:18 - DE clarifies - If you're engaged in civil disobedience, remember they can arrest you (that's the point).

1:19 - Everyone gets more than one question, apparently, as we continue to make sure we tell DE all of the ways he was slightly wrong or over broad in his statements. Commenter complains about how protesters are being dismissed as hippies or otherwise ignored.

1:21 - DE says those are terrific points and agrees.  "Don't go crazy trying to fix this school- think about out there."  DE was never that into campus.  I also would have liked to see more UC students at Oscar Grant Plaza instead of at Sproul.

1:22 - DE says go to Sacramento to protest how the UC's are being treated. (You can take Amtrak)

1:23 - DE: "I am not being mocking. Okay, so saying that I'm not mocking is mocking." But he explains faculty is frustrated that people are protesting here and not in Sacramento. "You care enough to protest only when its convenient."

1:24 - DE: Berkeley is #2 in leading research university. And Berkeley has more Pell Grant recipients than the entire Ivy League. Would love to be part of conversation about how to have more of an impact, but it is "not a simple job."

Commenter: We would be more willing to take this to the administration if we didn't feel like you viewed us as the enemy.

1:26 - Basically, the students want more handholding about how to change stuff from Edley.  We're going to have a planning meeting.  It seems like this is a step forward as long as we don't use that whole meeting to attack straw man DE positions.  DE wants the movement to be led by students.

1:27 - The mic is stuck on one side of the room.  Let the left side speak!

1:28 - Now we're going to argue more about what actually happened and how the students "were prevented from walking through the campus" and DE clarifies and apologizes.
Hey BHSA, remind him about that planning meeting next time you see him.

1:29 - Everyone is getting emotional.  DE's response wasn't quite right because the full facts weren't talked about by DE.  DE reiterates what he said at the beginning of the talk.

1:30 - DE says I don't get the point.  DE says he'll send the letter.  This is the kind of thing that makes DE pissy.  And he's getting pissy.  And some of the crowd is yelling that they're not getting support.  He's getting blamed for an inaccurate interpretation of what happened and he didn't provide all of the facts.

1:31 - Both students who were confronted were latino and there were racial slurs used by the police towards the students.  DE was not aware of this and gets called out on for not speaking to the students about what happened.  The students are not ok and are not traumatized.  DE should have first reached out to them instead of just going ahead with what he thought he knew.  DE apologizes and says the student was right.

1:32 - These students were singled out, they were alone and they were humiliated in front of their own school.  DE's comments about "power" come back to bite him in the ass because they weren't clear.

1:33 - DE agrees with almost everything accept his complete culpability for sending the memo without knowing all of the facts.  Now that he has more information he will send another memo.  DE is getting called on the fact that he didn't email from Shanghai before talking to us.  As he gets additional facts he'll send out another memo.  This seems to be a "either you're with us or against us" situation in Booth.

1:35 - DE is getting called out on his "consistent attitude towards the students" for what the new commenter says is "mocking" and that the fee hike cannot be separated from the 99% or the police brutality.  I feel like we're missing the point here.  Instead of getting DE on board, we're insisting on attacking him.

THIS JUST IN - All students granted amnesty if they were arrested.

1:36 - Commenter says DE doesn't care about anything we say.  Why even hold the meetings?  DE holds them because he wants to respond when stuff happens and that students what to hear from him even when they disagree.

1:37 - DE agrees that fee hike issue and 99% issue are the same.  He doesn't agree police misconduct is the same, commenter interrupts DE and clarifies.

1:38 - "Expressing your views is not identical to having political effectiveness."  In this circumstance DE thinks it's preaching to the choir and it's better to preach to the infidels (in Sacramento).

1:39 - DE is trying to get more money for the students so that the law school can use the money in place of lost California state revenues so we can stop having future increases.  He cannot cut back on tuition without revenue to displace it. The reason he was in Shanghai was to push executive education programs that would raise revenue.

1:40 - Having campus protests about fee increases doesn't help Edley.  He wants more pressure on Sacramento.

1:40 - DE: This has been going on for several years now. And generations of students have made the same point many times. DE says he get the point. Having another meeting to tell him what last year's students told him does not improve the politics of opportunity.

Commenter asks for more transparency about what DE is up to. DE says he'll do that.

DE - "Students should do more than administrators do."

1:42 - A whole bunch of hands went up after that.

1:44 - J. Ste*n, student regent - Regent meeting has been cancelled. This is bad. This is also going to double or triple student passion at future regent meetings. Ste*n re-routing buses from regent's meeting to Sacramento. Invites DE to come with them.

Chancellor sent e-mail about granting amnesty to students arrested while this was going.

More transparency requests - want more info other than at town halls.

1:46 - Commenter doesn't understand how the administration can justify riot police and why there's no encampment being allowed.  I am not sure if DE will be able to answer this question.  DE is getting bashed for not seeming "upset" enough.

1:47 - Now the students have taken over, finally, and we're just going to talk to each other.

1:48 - Can we please move on from this "you haven't sounded" right BS?  Wanting DE to respond at exactly the right pitch just seems counterproductive.

1:49 - Someone finally says, "Yelling at Dean won't fix the problem," and some people clap.  Some people sort of clap.  People are definitely afraid to clap for moderation.  I know I am.  DE cannot be our "avatar" which is an awesome word, but a shitty movie.

1:50 - DE: I can't be your "avatar" in attacking the Chancellor or Regents. Most effective use of Dean's position to speak in measured tones and to speak the truth. As such, anything I say can't express student's passion. Not my job. My job is to be effective.

1:51 - Student: What expectations should we have about our safety at tomorrow's strike?

DE: If I were in your shoes, I'd be very puzzled about that. I'll try to get some guidance from the police department and chancellor.

DE: Take your Cal ID with you! Police will definitely be concerned about trouble-makers from Oakland. See head bashing and murders in Oakland. Of course, this has nothing to do with Occupy, but police are concerned about non-protesting troublemakers trying to get in.

1:54 - He's being told he's mocking again.  He's being accused of calling students "nutty."  He says he's being unfairly attacked.  He said it was nutty to attack members of the staff as uncaring.  He's right.  There's no reason to personally attack DE.  It does nothing for the conversation and when you hear it for the 10th time it gets distracting to what's at stake here:

- stopping police brutality on campus
- continuing the 99% movement.

1:56 - Commenter: The time that the law school isn't going to take a position on this has passed.  Working group with everyone working together and making public comment.  DE: That's a great idea. Yes it is.  This is what we need to be doing.

1:57 - Staff witness saw people get pepper sprayed and is telling us about it.  She lends her support to the students standing up for public education.  She commends us for our courage and now we all applaud ourselves/her/both?

1:58 - Now we're being thanked!  Not sure who is thanking us, but he's glad we came.  So am I.

1:59 - A lot of people came here wanting an emotional response and they didn't get it initially, but we appreciate all of what was said and that things continue to build and be positive.

1:59 - That are actually quite a few staff members floating around hear. Saw Bamb*rger and T*lley listening in.

2:00 - DE: Explaining "nutty" comment. Staff stayed after hours to chastise police and make sure there were no further incidents affecting students. So when he received communications (in Shanghai) from student groups accusing law school of not doing enough, he though it was nutty, if not worse. Distinguishes between central campus and law school employees.

2:02 - Prof. Alp*r - Re. creating committee to work through police conduct - this was done in 2009 by Wayne Br*zil. Hard to reconcile video with conclusion of that report. Asks people to look at that report and see how to build on that.

Re. faculty members not expressing support publicly - Many members of our faculty were appalled and wrote directly to the Chancellor to protest. Also, Prof S*mon wrote a blog post.

DE - There is a petition circulating among faculty about no confidence vote in Chancellor.

And we're done!

Dean Edl*y Doesn't Carry His Cal I.D., BUT YOU BETTER PUNK...

...unless you want to get arrested by the UCPD.

DE just emailed the student body with his reaction to some of the recent activity on campus involving law students and UCPD. There will be a town hall meeting tomorrow at lunch (location TBD) for Boalt students to discuss. There is also talk of a student strike on Tuesday, in opposition of recent UCPD behavior and to support the greater protest movement at Cal.

I just have a few initial thoughts: 1) I appreciate getting this information; 2) I appreciate the way KVH and MM handled the situation in the heat of the moment; 3) Just because UC has a campus regulation doesn't mean that regulation is constitutional and/or good policy; 4) Just because UC has a campus regulation that sometimes makes sense doesn't mean UCPD should enforce it by senselessly harassing individual students not bothering anyone; 5) I would really like to hear DE's thoughts (or actually, maybe Professor B*mberger or Ch*per's thoughts) on the other well-documented UCPD actions in Sproul; 6) I hope DE is pressuring UCPD to leave us alone and keep their distance from the law school.

DE's Email:

This memo would be shorter, with fewer typos, if I had more time.

1: I have asked by staff colleagues to arrange for a brief “Town Hall” meeting for our community tomorrow, Monday, during the lunch hour. The location is likely to be the “west commons” outdoor space, but details will be nailed down first thing Monday morning. This will be an opportunity to share information and, I hope, constructive ideas. The issues I imagine people may want to discuss include not only UC Police Department actions with respect to our students, but also the Occupy Cal protests, the broader Occupy movement, and the relationship of these to the future of our University. I envision this as highly participatory, not performance art by me as dean.

2: I returned a few hours ago from a week of travel to Seattle and Shanghai. While abroad I received reports on the campus protests and police actions, but it was impossible for me to be fully sure of the facts. I now know more, which is what I wanted before shooting my mouth off – especially since none of our students were in any immediate crisis.

3: Although the Law School was distant from the protests on Sproul Plaza, we (my colleagues in Boalt’s administration) know of two incidents involving Law students who were walking across Kroeber Plaza, the fountain west/downhill from us. On their way to class, the students were stopped and detained by U.C. police officers stationed near the Law School. Here’s what we think happened: Police physically detained the first student and confiscated some signs he was carrying. He was released when he produced UC Berkeley student identification; the police allege that he initially refused to do so. Later, police physically detained a second student, confiscated her bullhorn, and instituted arrest proceedings-- including handcuffing her and placing her in a squad car. Unlike the first student, she did not have her ID with her. As this second student was being arrested, our Director of Student Services Mindi [] arrived on the scene. She had been phoned by students witnessing these events unfolding. [Mindi] convinced the officers that this was a Boalt student. The police then removed the handcuffs and cited the student for a misdemeanor, without formally arresting her. (This latter point is important for purposes of admission to a bar to practice law. Getting arrested, under any circumstances, is not something a law student can afford to take lightly. Please remember that it will create headaches later, including demands for elaborate explanations.)

4: All of this has raised questions about police behavior in our community. Several students have asked, "Why were police stationed at this end of campus, when the protest activity was on Sproul Plaza?" Associate Dean [KVH], who went to investigate when she learned of the first incident, spoke with one of the UCPD officers involved. He told her that they were under orders to prevent the occupation of Kroeber Plaza (the fountain area) and any surrounding buildings. The police also know that I have insisted on various occasions that protests at Boalt are generally fine, and even welcome if by members of our community. But I draw the line at disruption of classes because we should respect the right-to-learn of students and instructors. (I’m mindful of the tuition.)

Associate Dean [KVH] also asked officers why they stopped someone who was simply walking by himself, carrying signs. A UCPD officer cited to 5 CCR 100014, which limits the size of any sign, placard, banner, etc. that non-affiliate visitors to UC campuses are allowed to carry onto the campus. When they saw a person carrying large, protest signs they stopped and asked him for ID because if he were a non-affiliate then he would be told to leave campus. Officers stated that they would not have detained the student if he had shown his Cal ID. (We don’t know at what point any or all of this information was shared with the student, if ever.) Dean [KVH] explained that it is likely many students were not aware that they were required to carry and show ID while on campus. UCPD officers responded that if any students should know the law it would be Law students. (A natural mistake. They obviously have the wrong idea about what we do.) Dean [KVH] then argued that detaining our student was counterproductive, unnecessary, and would likely escalate matters.

After this discussion the police van, which held the six officers, left the area. Dean [KVH] assumed these six officers were off to the real action on Sproul Plaza, so went back into Boalt to try to find out more details about what happened.

Unfortunately, the officers returned a short time later and the second incident occurred, this time with Mindi [] playing defensive tackle. Then, after the second incident, Dean [KVH] sent an email to everyone in the law school community, warning them that there had been two confrontational situations, letting everyone know that UCPD was demanding ID, and noting that they appeared to be concentrating on people with large signs, banners, and sound amplification devices. She suggested that students avoid the West Terrace area if possible. She then stayed late into the evening and monitored Kroeber Plaza. She also instructed the Community Service Officer on duty in the South Addition, who was monitoring police radio calls in the area, to call her if there was any problems arose. On both Wednesday and Thursday Mindi [] also met repeatedly with students about the incidents.

5: To characterize the Law School administration’s response as “unsupportive” seems incorrect. Actually, with my jet lag it seems nutty. I don’t know how we could have responded better, although we are certainly open to suggestions. My colleagues did not wake me up in Shanghai, which I appreciate because they performed brilliantly without me. They always have.

6: These and other UCPD actions will be dissected at great length, I am sure. There’s a campus investigative body for that purpose. There may be disciplinary actions, there may be changes in training, or there may be nothing. In any case, I hope that our Law School community we will turn quickly to the broader issues that animate the Occupy movement, which deserve the nation’s attention and ours.

7: Finally, here is something to consider. Police in these circumstances are perfectly within the law to demand identification. That doesn’t excuse inappropriate force, or just plain non-rational actions, if either of those occurred. But as far as I can tell, if both students had been willing and able to quickly produce Cal identification, that would have been the end of it. Since the incidents last Wednesday, many students have asked whether they really have to carry their Cal ID cards and show them to UCPD on demand. Campus policy, as stated on the Cal 1 Card website, is that all students, staff and faculty MUST carry their Cal1 ID whenever they are on campus. The card itself states that "[t]his card...must be shown to Campus representatives on demand." In addition, UCB Regulation 211 states: "All persons on campus property must abide by University policies and campus regulations and must identify themselves upon request to University officials acting in the performance of their duties." The Berkeley Campus Student Code of Conduct (102.16) states that: Failure to identify oneself to, or comply with the directions of, a University official or other public official acting in the performance of his or her duties while on University Property or at official University functions; or resisting or obstructing such University or other public officials in the performance of or the attempt to perform their duties is grounds for discipline. Having said all of that, most of the time I don’t carry my Cal ID because I would lose it if I did.

CE

PS: This statement reflects what I think I know as of 7:00 p.m. Sunday evening.

Police Brutality During Occupation Protest in Sproul Today

Regardless of how you feel about the Occupation, this behavior by police against unarmed, non-violent protestors is not only illegal, but is shameful.

This is how police treat students on the UC campus. Watch the video and see for yourself that the protestors were standing, with their hands raised and not advancing on the police. Observe the police strike students multiple times with their batons despite no resistance being offered.

Lady, I Got Buddies Who Died Face Down in the Muck So that You and I could Enjoy this Family Law School

First things first: check out the ultra-important, context-enhancing video here.

Next, review this recent email from KVH to Boalt students:

UCPD officers have told us that they are under orders to stop anyone carrying large signs, banners, bullhorns or other amplification devices on campus property. Officers have been monitoring the area in front of the Law School that adjoins Kroeber plaza. If you are carrying signs, banners, bullhorns, or other amplification devices you will likely be stopped by UCPD and asked to produce identification. There have been some confrontational incidents in the last couple of hours that demonstrate that the officers expect immediate compliance with their request for ID. While we do not understand UCPD's position on this issue, we cannot control or direct UCPD's behavior and we are concerned for your safety and well being. It might, therefore, be wisest to avoid the west end of the building for now, if you can do so. Instead come into the law school through the EAST cafe door.

Finally, some historical context might be helpful background as you think about this issue.

Ready to crack some (figurative) heads? Good. Like KVH, I also doubt that I "understand UCPD's position on this issue." Are the campus police stopping students for the hefty offence of "carrying large signs"? On a weekday? On a campus? And are they really asking for ID? Really? If it actually is true that the UCPD can't think of a single better thing to do with its officers' time, I invite the Chief to call me. As a former resident of the greater Boalt Hall metropolitan area, I feel confident that I could provide an extensive list of better ideas.

Gamblor

The jury has reached a verdict in the Conrad Murray trial, which will be read between 1 and 1:30 pm.  You can watch live, here.  I've tried to catch the trial in the background at work.  Based on what I have seen and in particular based on the quality of the prosecution's presentation (which should be watched by all wannabe litigators as an example of near-perfect trial presentation), I would set the odds as follows:

Guilty:  -1000*
Not Guilty:  +900**

All others afflicted by Gamblor are welcome to lay their bets until the verdict is read.

* For those who aren't degenerate gamblers, this means that to win $100, you have to bet $1000. 

** A bet of $100 wins $900.  

James Lyd*'s Departure

I am not in the habit of speculating as to the feelings of others; but I’m willing to bet that tonight’s email from James Lyd* meant a great deal more to some of us than it did to the rest.

Understandably, people tend not to say much about their visits with Dr. Lyd*. The walk to 362 Boalt is often, by design, an inconspicuous one. But it is important that the Boalt Community recognize the role that Dr. Lyd* plays, as both a counselor and a friend to so many.

I don’t know how quickly the administration plans to replace Dr. Lyd* - but I hope that when they do, it is with someone who is equally supportive, sincere and free of judgment.

That in mind, a quote from Mr. Rogers:

“Part of the problem with the word disabilities is that it immediately suggests an inability to see or hear or walk or do other things that many of us take for granted. But what of people who can't feel? Or talk about their feelings? Or manage their feelings in constructive ways? What of people who aren't able to form close and strong relationships? And people who cannot find fulfillment in their lives, or those who have lost hope, who live in disappointment and bitterness and find in life no joy, no love? These, it seems to me, are the real disabilities.”

Remember, Remember, the 5th of November

Today is Guy Fawkes Day.  And children all over the UK are taught poems demonizing Guy Fawkes' plot to blow up Parliament.

Remember, remember, the 5th of November
The Gunpowder Treason and plot ;
I know of no reason why Gunpowder Treason
Should ever be forgot
Guy Fawkes, Guy Fawkes,
'Twas his intent.
To blow up the King and the Parliament.
Three score barrels of powder below.
Poor old England to overthrow.
By God's providence he was catch'd,
With a dark lantern and burning match

But more recently, Guy Fawkes has been transformed (thanks in large part to the V for Vendetta comics/movie) to full-fledged hero status, particularly among those protesting authority, such as the Occupy movement.  The LA Times had a short story on the transformation that's worth a read.

So who are the people wearing the Guy Fawkes mask?  We probably all have our own opinions, but the most sensible answer comes from the movie:

Evey Hammond: Who are you?
V: Who? Who is but the form following the function of what, and what I am is a man in a mask.
Evey Hammond: Well I can see that.
V: Of course you can. I'm not questioning your powers of observation, I'm merely remarking upon the paradox of asking a masked man who he is.

Happy Halloween, N&B!!

It's gearing up to be a scary one indeed, between Kamala Harris's "Operation Boo" (requiring all registered sex offenders to stay inside their homes with outdoor lights extinguished during Halloween night, while transient sex offenders are rounded up and supervised between 5-10pm tonight) and the OWS Oakland general strike scheduled for this Wednesday that purports to "shut down the 1%" (Big Daddy Warbucks: "Haha. Ha. Hahaha." Small Business Owner in Oakland: "Oh s*@$!")

This Is Why You Should Go See The Protests for Yourself Instead of Listening to an Armchair Conservative

Occupy Wall Street is a response to the fact 1% of this country control a huge amount of its wealth and the political process. Anyone who tells you otherwise is either ignorant or would rather try to discredit the movement by focusing on the actions of a mentally ill man in the OWS-Oakland camp this week.

Today, 3,000 people marched through the streets of Oakland. The protest is peaceful. It is on public property and is action that should be protected by the First Amendment. If the Oakland city government wanted to act in support of this non-violent action to push for true financial and government reform, it would not have sent in over 500 riot police armed with shotguns, truncheons, riot shields and tear gas. They would not have deployed APCs and used military grade sonic weapons on protestors. Anyone who thinks the Oakland police or government has acted in support of OWS or has acted reasonably needs to spend some time at the protest.

Over 100 people were arrested today. A peaceful march resulted in a violent reaction from the Oakland Police Department. Things began early this morning when police officers invaded the OWS camp, tore up tents, used flash grenades and tear gas and physically removed protestors from the plaza.

Later this evening, after the march where more individuals were arrested while protesting non-violently; police fired multiple salvos of tear gas and flash grenades at peacefully assembled protestors. The local news estimated that 500 riot police were on hand to deal with a protest that was lawful and non-violent. Individuals were shot with tear gas canisters, bean bags and rubber bullets. The police did this multiple times and without substantial provocation. The Oakland government spent thousands of dollars on helicopters and overtime in order to try and stop people from speaking out against the systemic economic inequality in this country.

I'm proud to see other Boalt students out there, both doing Legal Observer work and simply adding their voices and presence to the OWS movement. I would encourage everyone to come see for themselves what is happening in downtown Oakland instead of relying on the accounts of individuals who aren't actively going to OWS and aren't sympathetic to the 99%.

This Is Why We Can't Have Nice Things

Based on what I see on Facebook, lots of Boalties think the City of Oakland has acted terribly in evicting the Occupy Oakland protesters. But I'm at a loss to see how the City could have treated the protesters much better.

Here's my initial question: how many reports of sexual assault, violence, and fire should the City have received before it finally stepped in? Here's another: what should the City have done when protesters prevented EMTs from treating the victims, the police from investigating the crimes, or fire officials from preventing the risk of a deadly fire?

Some may argue that Oakland's show of force was unnecessary. But the facts proved otherwise. On Friday, the Mayor asked the protesters to leave, citing public health and safety concerns. The request was ignored. Meanwhile, the camp was reportedly growing more dangerous, and more militant, every day. In the end, the city was able to evict the protesters quickly and without anyone getting hurt. What else could the city really have done?

What's remarkable to me is the extent to which Oakland supported the protesters to begin with--and how little it mattered in the end. Oakland's mayor, Jean Quan, provide tons of support to both the protest and its complaints. Local politicians participated have marched and camped out on the square. But this wasn't enough By refusing the work with the City, the protesters forced the City to take action. Now that it did so, some are trying to escalate the conflict (and violence) and portray the City as a thug-booted police state. Don't be fooled.

Proposed Class Reduction

BHSA has just posted this via Facebook:

Dear Classmates,

The Dean has recently proposed reducing the size of next year’s incoming class to *235-40* students from this year’s size of 252 first-year students. Given this change in numbers, the administration has also proposed realigning the first year classes around 2 large Supermods instead of the current 3 Supermod system.

Under the current system, the class of 252 1Ls is divided into 3 Supermods of approximately 85-90 students. Each Supermod is further divided into 3 Mods, which this year number between 25 and 32 students. Students take a total of 2 Supermod courses and one with their Mod during Fall, and 2 Supermod courses during Spring.

Under the proposed 2 Supermod system, the first-year class would be divided into 2 Supermods of 120 students each. The best scenario for Berkeley students under this proposal would be: 2 SuperMods (120 students), 4 MidMods (60 students), and 8 Mods (30 students). BUT, this is assuming that 20 tenured or tenured-track Berkeley faculty are available.

The administration is anticipating lean times in Civil Procedure for next year and Criminal Law in future years, given the ongoing upper-year teaching demands on our Criminal Law faculty. As a result, it may not be possible to achieve the 2 Supermod scenario of 120-60-30. Rather, shortages in faculty would be solved by dividing the first year classes into a 120-120-30 Fall class system and 120-60 for Spring.

Regardless of how the courses are divided, first-year students would be in Supermods of 120 students.

When considering the new proposal, please also consider the costs and benefits identified by the Dean’s Faculty Advisory Committee:

Benefits:

- Under the new 2 Supermod system, the administration would less likely need visiting professors to teach the 1L core courses.

- The 2 Supermod system would require less faculty members to teach first-year course; thus, allowing for faculty to teach in the upper-level curriculum. For example, faculty could be redeployed to teach additional sections of evidence, criminal procedure, and upper-level business law courses, for which there is significant demand.

Costs:

- Teaching 120-student sections instead of the current 80-90 sections would impede their ability to teach 1L students effectively, especially with respect to encouraging widespread student participation.

- Adding 120-student sections could exacerbate what some faculty members perceive as a teaching equity problem across the curriculum.

- An important question is whether the change to 120-student class could put us at a disadvantage in recruiting first-year students, especially if our peer schools teach in smaller sections.

The Faculty was expected to vote on this proposal last Wednesday but tabled the matter until a future meeting. The Administration and Faculty is interested in knowing what Berkeley Law students think about the proposed system and will take our input into consideration when voting on the proposal.

If you would like further information on the proposal, please email me at <asalceda AT berkeley> and I would be more than happy to provide further details.

Thoughts? Off the top of my head, I have a few:

• The addition of MidMods weird me out a little. There's some sense of community within SuperMods. That gets diluted if you have three levels of grouping as opposed to two.
• On hot days, being in one of the large classrooms sans air conditioning will now feel that much more miserable.
• I'm skeptical that there's much of a marginal difference in teaching between 90 students and 120. In both sizes, it's easily to remain effectively anonymous. There will be more gunners competing with each other for speaking time, but I'm not sure that's a bad thing.
• How do LRW and WOA fit into this? Those are arguably the most important classes in law school, so keeping those class sizes small could matter a lot. (Edit: LRW and WOA class sizes will remain the same).
• Will there be an increase in ASP tutors? Having ASPs for MidMod classes could help 1Ls a lot.