Open Thread for ATL's Recent Post: "How Much Does Your Law Prof. Make? Berkeley Edition."

There have been some rumblings. Some commentary. Some hashing out over social media. Here is an open thread.

If you haven't seen it, the article is here and links to a corresponding more detailed list here.

"Darn. There goes my judo match with Putin."

Say what you want about ThatWhichShallNotBeSpoken, this is hands-down the best response to a diplomatic sanction.

John Yoo Barred from Russia, Could Give A Flying ... Pig

Anyone to provide an illustrated version of what a judo match b/w Yoo and Putin would look like will immediately be published. And lauded in whatever way they'd like. Submissions to nutsnboalts@gmail.com.

BHSA Elections

BHSA Elections are Weds/Thurs from 10–2 in the Donor Lobby.

Don't forget to vote!  (Really? A cynic might ask. Vote? Why?)
Read on...

Read more »

Ted

Ma nishtana ha'lailah ha'zeh mikol haleilot?  Why is tonight different from all other nights?  Because tonight I am proud to have graduated from the same law school as Ted Olson.  It requires a special form of courage to adopt and advocate a position repugnant to the political orthodoxy of one's social and professional peers.  I applaud it.

"What, no discussion of the USNWR law school rankings?"

Ask and you shall receive! U Chicago moves into a tie for 4th, while Berkeley slips into a tie for 9th. Berkeley remains #1 in Intellectual Property (as if there were ever a doubt). Hastings and Davis both dropped, to 48 and 38 respectively. Stanford is once again 3.

Is any of this important? Rankings have always been fairly divisive among the student body, and no doubt still are. Should it be worrisome that Berkeley rankings decline despite out of state tuition eclipsing $52,000 per year? Post your thoughts or observations in the comments.

In Defense of Citizens United

As today marks the third anniversary of the unpopular decision in Citizens United v. Federal Election Commission, I expect a handful of folks to ask me to take a stand against the case by signing a petition or re-sharing a Facebook post or something. I'll admit I'm not happy with the way that corporate power influences politics. But here's why I think Citizens United was rightly decided, and why attempts to overturn the case or amend the First Amendment to exempt corporations (or certain types of corporations) are a danger to free speech in general"

In a nutshell, much of what has traditionally been protected political speech uses the corporate form. I'm open to suggestions, but I can't see how you can draw a reasonable boundary between protecting the New York Times Company spending millions of dollars to distribute an election editorial and not protecting Koch Industries spending millions of dollars to run ads during an election.

I usually hear one of two responses for how you would draw such a distinction, neither persuasive to me.

The first is to argue that the First Amendment should protect the right of individual persons (such as journalists) but not cover the corporate entity (such as the New York Times Company). The problem here is that this would still enable overly broad restraints on what many would consider legitimate speech. Journalists may be free to write what they want, but they wouldn't be able to receive a corporate salary. Or use the corporate printing press. Or post on a website owned by a corporation. Or really do anything more than standing on a street corner and handing out flyers.

The second is to draw a line between different types of corporations -- e.g. between media and non-media corporations. This is the approach taken by the dissent in Citizens United, but it's one I'm uncomfortable with because of the difficulty in drawing coherent boundaries here. Take the media / non-media distinction for example. What's a "media corporation"? Is the New York Times a media corporation? What about Google, which hosts Blogger? What if a non-media corporation bought a media corporation? First Amendment law favors bright lines because fuzzy boundaries have a chilling effect on legitimate speech. And the lines involved with okaying some corporations but not others aren't so clear in practice.

While I'd like to think there's a line to be drawn here, but I suspect there isn't. The fundamental complaint raised by campaign finance reform activists isn't about corporations per se, but about how the accumulation of capital affects the political process. Yet the political process is built around mass communication. And it turns out that communicating to hundreds of millions of Americans is expensive. It requires the accumulation of capital, whether it's paying for TV broadcasting, print newspaper, or laying the fiber optic cable for an Internet connection. So long as that's true, it'll be difficult to take the money out of politics without taking free speech out as well.

California Bar Results by School

California has released the breakdown of pass rate by school. Berkeley came in 5th with 86.3%, losing out to Stanford (93.7%), UC Irvine (90.2%), UCLA (89%), and USC (88%). The overall average for ABA approved schools was 76.9%.

By way of comparison, Berkeley's pass rate in 2011 was 87%, and in 2010 it was 91%.

There must be something in the water down in Southern California...

FUBAR Revisited.

Anon asked, and shall receive, a post updating the situation mentioned in Armen's previous post, FUBAR. As picked up recently by Above the Law among other outlets, the two Boalt students have now been formally charged following the killing of a helmeted guineafowl in Las Vegas. Without raising names in this post, one of the two students faces two felonies, one gross misdemeanor, and one normal misdemeanor while the other faces one misdemeanor count. Feel free to discuss below, if you feel so inclined.

Shorter NRA

In the wake of mass killings we should focus on Mortal Kombat and other fictionalized violence, and increase access to guns.

Hmmm...

Tedford Out

Can't say I'm surprised by this news.  Last season I was experiencing what Cal fans experienced this season, except Neuheisel did not have a fraction of the positive impact on UCLA football that Tedford's had on Cal football.  In fact, it's really hard to overstate the impact of Jeff Tedford.  In 2005, Cal was just a whiny Mack Brown away from going to the Rose Bowl.  Just looking at the list of current NFL players to come through Tedford's program is an impressive list: Rodgers, Lynch, Jackson, Forsett, Best, etc.  I'm sure you can add others.   

(California) Bar Results

For the Class of 2012 hoping to practice in California, today will either be a relief or it will suck.  Either way, results for the California bar exam will FINALLY be released tonight at 6:00 p.m. Feel free to vent anxiety now, celebrate later, or ask what is next in the unfortunate case that bad news arrives.

Best of luck to everyone; alcohol poisoning is a dangerous thing.

Have Strong Thoughts on Recruiting?

A reporter for The Recorder is looking to write an article on this year's on-campus recruiting with a very tight deadline.  If you're a current 2L and you're willing to share your thoughts, please reach out to Julia directly at jlove at alm-dot-com.  Or if you want to anonymously share your thoughts, post them below.  If I have any free time today, I may go back to earlier OCIP threads and run Deltaview on the firms that recruited from Berkeley then versus now.  Should be an interesting comparison. 

Warren Reigns (No, not that Warren)

The headline news is Obama's victory. The below-the-fold news worth watching is Warren's.

Election Open Thread

Consider this your election day / night open thread.  I am too busy to create election night coverage drinking game, but if you really want to get wasted, take a drink anytime someone mentions "middle America" or "rural/suburban families."  Instead, if you think you're a political hot shot, then go ahead and try to predict the answers to these questions:

1.  Winner of the Presidency is: __________.

2.  We will know the winner by:  __________ (date and time in PST).

3.  The winning (and by this I mean clinching the 270 mark) Electoral votes will come from the State (or Commonwealth or District) of __________.

4.  Winner will receive _______ Electoral College votes.

5.  The winner will receive ____ % of the popular vote.

6.  The winner will receive ________ total popular votes.

7.  Most important issue according to the exit polls will be _________.

8.  The breakdown of the Senate will be: __ D, ___ R, ___ I (bonus points if you correctly identify who the independent Senators will caucus with).

9.  __________ will win the Massachusetts Senate race.

10.  The GOP will gain/lose ______ seats in the House.

These are fairly straight forward.  But then again, this is an open thread so you can add questions of your own or talk about whatever else is bugging you (insert panicked 1L voice, "what the hell is replevin?").     

In Memoriam

My thoughts and prayers are with Judge Willie Fletcher and his family following the sad news of Judge Betty Fletcher's passing.

Prop Joe

I've been trying to avoid the inevitable...election season.  In elections past, I've either opened up a debate open thread or offered my thoughts on California propositions.  In this one, I'd like to do both.  Feel free to offer your pre-, post-, or then-existing debate thoughts.  As a reminder, today's the last day to register to vote in the November 6 election and you can do so here.

Final (Debate) Countdown

As a self-described degenerate gambler (I'm just kidding Dear Future Background Checker), here are my prop bets on tonight's debate (and the payoff odds).

1.  Obama wears blue tie.  (even money).

2.  Both candidates "work the ref."  (-1200 [which means very likely to happen]).

3.  Substantive discussion on the legality (or lack thereof) of continued and expanded drone strikes (or some other foreign policy issue not amenable to 3 second talking point).  (+10,000).

California Propositions

As a default, my rule is to vote no on any proposition.  For long time followers of California history and politics, it's a simple fact that the propositions are choking this state, in particular by removing the Legislature's discretion to cut / add spending.  

Prop 30 -- Yes.  Increase in sales tax and income tax for high earners to pay for the budget gap.  I benefited from much lower fees at both UCLA and Boalt.  More than happy to pay my higher share in taxes to help prevent further increases on students and others.  Also, I dislike Prop 38 because it suffers from the fatal flaw of other propositions that mandate how the money is to be spent.  That's a flaw, not a virtue. 

Prop 31 -- No.  Something about amending the constitution to change budget cycle and something about local governments blah blah blah.  I read the title and realized I'm not persuaded to vote yes.  So, gets a no by default.  This is again one of those instances where it sounds fine on paper to allow local governments to have spending discretion, but let's say the state allocates $50 million on contraceptives, and some crazy right wing director of health in say Barstow thinks this is the Devil's plan.  Why should the Legislature have to veto her actions just to make sure someone is spending the money as intended?  This is ridiculous and another one of those propositions that wrecks the system more than solving anything. 

Prop 32 -- No.  Basically your average "red state" anti-union political contributions bill.  Very strange that in certain states union political activism is evil, but corporate political activism is free speech / personhood. 

Prop 33 --  No.  This changes the law to allow auto insurers to base pricing decisions in part on history of insurance coverage.  For example, currently your rate is based on your age, driving history, type of vehicle, etc.  So if you've had insurance with any insurer, you get a discount, but the uninsured guy trying to buy insurance has to pay more.  And that is why I'm voting no.  I want MORE people to carry insurance.  I don't want to give them added incentive not to carry insurance.  Sure, I might be giving up a buck or two in some illusory discount, but I think that's a small price to pay. 

Prop 34 -- Yes.  Overturn the death penalty.  Amazing what we as Californians are willing to pay in bad economic times but this category of wasteful spending seems to survive.

Prop 35 -- No.  Increase penalty for human traffickers, etc.  I'm not pro human trafficking or anything, but this state has a terrible history of passing "tough on crime" propositions that result in absurdities.  Why is this necessary?  Is the pro-human trafficking lobby strongly opposed to increasing punishments through the Legislature? 

Prop 36 -- YES.  A resounding yes for this proposition that modifies California's ridiculous three strikes law after nearly two decades of failure.  For those too young to remember, in the early to mid 90s, a Petaluma girl named Polly Klaas was kidnapped from her home by a felon with multiple convictions.  This naturally led to all sorts of hysteria in the suburbs about felons walking among us, so California passed a law mandating a sentence of 20 years to life for anyone convicted of a third felony.  What could possibly go wrong?  A lot actually.  This finally modifies the law to require that the third felony be serious or violent, with certain exceptions.  Net savings?  $70 to $90 million annually.  Yes and yes. 

Prop 37 -- Undecided.  This is the proposition that would require labeling of genetically engineered ("GE") foods for the undecided.  I honestly still don't know which way I lean on this one.  Here is my thinking.  Con:  The proponents seem to be putting a lot of stock in junk science.  Even if the article is a bit of a hit job, we can all certainly agreed that there is certainly no consensus in the scientific community on the effects of genetically modified foods in the way that there is for tobacco.  Also, if someone is currently interested in buying non-GE food, they can shop at Whole Foods or whatever.  Why create an unnecessary panic?  Pro:  We're all capable of deciding how much sugar we should eat, but that's required to be on a food label.  Why not GE information?  Why can't we trust people to make their own decisions with information and as far as I can see this does not restrict the sale of GE foods. 

Prop 38 -- See above.

Prop 39 and 40 -- declining to comment.  This means you shouldn't ask, "Why can't you comment?" 

Opine away.

Three's A Crowd?

If my FaceSpace newsfeed is any indication, many of my fellow Boalties have been following the election and, in particular, the debates, closely.  This morning, Gary Johnson, the Libertarian Party candidate, filed this complaint in federal court in D.C.  In short, it asks that the Commission on Presidential Debates be forced to include him in the upcoming debates.

In reviewing the complaint, a couple things became readily apparent to me:

1. I know very little about the laws surrounding political campaigns and the media.

2. The complaint alleges that the Commission on Presidential Debates is a 501(c)(3).  I'm a bit unclear on how that can be, as 501(c)(3) corporations are generally precluded from being involved in politics.

3. Gov. Johnson has a tough row to hoe arguing unilateral contract here, and with a debate coming up in four days, with just two court days in between, it would take a miracle for a court to even take a look at it.  Maybe a miracle in the form of an ex parte appearance.

4. It seems to me that it makes sense to add as many candidates as could mathematically become president (i.e., they are on a sufficient number of ballots to potentially gain the requisite electoral votes) to the debate.  Third party candidates are frequently written off as a nuisance to Democratic and Republican nominees, but isn't it hard for them to be anything more than that if they aren't permitted into the debate?

Ultimately, I don't think Gov. Johnson's complaint will get him very far, particularly this late in the debate schedule.  But it brings up two questions (at least for me):  1. Why do we exclude nominees who are on a sufficient number of ballots from the debates? and 2. Is the legal system the best mechanism to resolve this issue?

FUBAR

Oh boy.  I don't really even have words for this one.  I will say, as someone who has taken part in a tradition of going to Vegas every MLK weekend since 2L year, I think an annual pilgrimage can do wonders in maintaining ties among friends.  Or you can get caught in the moment, do something stupid/monstrous (I haven't yet judged which side this falls on), and essentially ruin the rest of your professional life. 

Open Discussion Thread

Nothing new has cropped up in sometime, largely due to many of the regular contributors graduating from Boalt. I have no idea what peculiar things may or may not be happening at Boalt, but if there is anything specific that deserves a post, or you want somewhere to anonymously vent, feel free to post it in the comments!

Boaltie at the RNC

As someone posted late last year, Ricky Gill (Boalt 2012) is running for Congress for Califronia's 9th Congressional District (which I think covers most of San Joaquin County, some of eastern Contra Costa County, and some of southern Sacramento County).  A couple days ago, he gave a speech at the RNC.  He is just outside my Congressional District, but I'm sure there are a few Boalties out there that are registered in his district.  Here is a link to his speech.

It is pretty brief (just under two minutes), and doesn't say anything terribly earth-shattering.  It is nice, for me at least, to see young people running for office - he just made the constitutional cut-off for Congress at 25 years old.  My time at Boalt didn't overlap with his at all, but I'm sure some of you trolls out there know him and have your own thoughts.

POTUS Talks Law School Student Debt... Not Really

As some of you fine interweb trolls (like myself) know, our supreme commander shined light on the dark corners of the internet today by doing an AMA (ask me anything) thread on the always educational reddit.com.  One of the questions posed (to which he provided a response) was regarding student debt and, in particular, law school debt.  Here is the question and answer:

Question:

I am recent law school graduate. Despite graduating from a top school, I find myself unemployed with a large student loan debt burden. While I'm sure my immediate prospects will improve in time, it's difficult to be optimistic about the future knowing that my ability to live a productive life -- to have a fulfilling career, to buy a house, to someday raise a family -- is hampered by my debt and the bleak economic outlook for young people. I know that I'm not alone in feeling this way. Many of us are demoralized. Your 2008 campaign was successful in large part due to the efforts of younger demographics. We worked for you, we campaigned for you, and we turned out in record numbers to vote for you. What can I say to encourage those in similar situations as I am to show up again in November? What hope can you offer us for your second term?

Answer:

I understand how tough it is out there for recent grads. You're right - your long term prospects are great, but that doesn't help in the short term. Obviously some of the steps we have taken already help young people at the start of their careers. Because of the health care bill, you can stay on your parent's plan until you're twenty six. Because of our student loan bill, we are lowering the debt burdens that young people have to carry. But the key for your future, and all our futures, is an economy that is growing and creating solid middle class jobs - and that's why the choice in this election is so important. The other party has two ideas for growth - more taxs cuts for the wealthy (paid for by raising tax burdens on the middle class and gutting investments like education) and getting rid of regulations we've put in place to control the excesses on wall street and help consumers. These ideas have been tried, they didnt work, and will make the economy worse. I want to keep promoting advanced manufacturing that will bring jobs back to America, promote all-American energy sources (including wind and solar), keep investing in education and make college more affordable, rebuild our infrastructure, invest in science, and reduce our deficit in a balanced way with prudent spending cuts and higher taxes on folks making more than $250,000/year. I don't promise that this will solve all our immediate economic challenges, but my plans will lay the foundation for long term growth for your generation, and for generations to follow. So don't be discouraged - we didn't get into this fix overnight, and we won't get out overnight, but we are making progress and with your help will make more.

Now, my disdain for most things liberal aside, this feels an awful lot like a non-answer.  Maybe because it is a non-answer.  In any event, I think I have seen people mention student debt once or twice on this blog, so, well, you folks can feel free to have at it again.

Also, for those interested, here is the link to the AMA Reddit thread.

OCImPics -- Olympics with More Roids

Again?  Has it really been a year?  No of course it hasn't been a year, it's been 11 months.  But apparently schools setting up On-Campus Interviews are on the lunar calendar or something.  Might as well wish everyone a Happy Yom Kippur while I'm at it.   All that aside, this year promises to be special.  It's an Olympics year and to be quite honest, I'd love to see Bob Costas cover the competitive, fearless, and agonizing spirit of OCIP.  Who doesn't want to see a montage of Bobby hitting the gym to practice his handshake grip?  Or Janey having a break down while shopping for a conservative, yet sassy business suit, only to build herself back up just in the nick of time to stick the hotel room greetings.  Will THIS be the year someone finally attempts a three-piece suit?  Who will dominate the VAULT?  Pesky questions that I'm sure NBC will answer over the next few weeks. 

With my ranting out of the way, this is your OCIP thread, but we do have some guidelines and best practices.  For those of you who are unfamiliar, here is a short explanation (you should also probably consult 2010's thread and follow the links in that post to educate yourself). In essence, this thread is to inform those who want to be informed of such things when firms send out offers and/or rejections following OCIP.  OCIP is a stressful process and it brings out the best and often the worst in people. If you feel OCIP is a notch below the library during exam times then you might want to skip this thread.

THE RULES

1. We will take comments posted below regarding offers/rejections and incorporate them into the body of this post. The process is tedious and generally not fun. There's a lot you can do to expedite things along.

2. PLEASE READ THE BODY OF THIS POST AND THE LAST FEW COMMENTS TO SEE IF ANYONE HAS POSTED THE SAME OFFER/REJECTION THAT YOU ARE ABOUT TO POST.

3. SEE NUMBER 2.

4. Post the offers/rejections in the following format:

Firm name, Office, +/- to indicate offer/rejection respectively. For example:

Orrick, SF +.

The location abbreviations are as follows:

Atl -- Atlanta; Bos -- Boston; Chi -- Chicago; Dal -- Dallas; DC -- DC; EBay -- East Bay locations (Oakland, Walnut Creek, etc.); LA -- LA area offices (includes Century City); Mia = Miami and South Florida; Minn -- Minnesota; NY -- New York/New Jersey; OC -- Orange County area offices; Por -- Portland; Sac -- Sacramento; SD -- San Diego; SF -- San Francisco; SV -- Silicon Valley offices (includes Palo Alto, San Jose, Menlo Park, and all other South Bay locations).

5. This is now the eighth OCIP that N&B has had this thread. Without failure, each previous thread contained comments that were ummm worthy of staying up. So, while we will delete comments that are only posting +/-, more substantive comments will stay up. At the same time, it's probably wise not to identify yourself to your prospective employers. So don't write anything silly that's going to reveal who you are.

Best of luck to all of you, but for the love all that is holy and good, please follow Rules 2 and 3.

***

Altshuler Berzon +
Allen Matkins, LA +.
Arnold & Porter, SF +/-.
Baker & Hostetler, NY -.
Baker & McKenzie, SV +.
Baker Botts, SV +.
Bingham McCutchen, LA +, SF +.
Boies Schiller, OAK +.
Brownstein Hyatt, DEN -.
Bryan Cave, LA +/-, OC +.
Cadwalader, NY -.
Cleary, DC -, NY +, SV +
Cooley, SD +, SF +/-, SV +/-.
Covington, DC +, SF +/-.
Cravath +/-.
Crowell & Moring, DC -, SF +/-.
Curtis-Mallet Prevost, NY +.
Davis Polk, NY +, SV +/-.
Downey Brand, SAC +/-.
Drinker Biddle, SF +/-.
Edelson McGuire, CHI +.
Farella Braun, SF +/-.
Fenwick West, SF +/-, SV -.
Foley Lardner, DC -, LA +/-, SD -.
Gibson Dunn, LA +/-, SF +/-.
Goodwin Procter, BOS -, LA +/-, SF +, SV -.
Greenberg Traurig, SF +.
Gunderson Dettmer, SV -.
Haynes Boone, OC +/-.
Hogan Lovells, LA +, SF +.
Holland & Knight, SF +.
Hooper Lundy, SF +.
Hughes Hubbard & Reed, NY -.
Irell, LA +.
Jeffer Mangels, LA +.
Jenner & Block, CHI +, LA +.
Jones Day, DC -, LA +/-, NY -, SD -, SF +/-.
K&L Gates, SEA +.
Kasowitz, SV +/-.
Keker & Van Nest, +/-.
King & Spalding, DC +.
Kirkland Ellis, LA +, SF +.
Latham, LA +, OC -, SD +/-, SF +/-.
Lowenstein, SV +/-.
McDermott, Will & Emery, SV -.
Manatt, LA +/-.
Morgan Lewis, LA -, SF +.
Morrison Foerster, LA +, SD -, SF +/-.
O'Melveny, CC +/-, LA +/-, OC +, SF +/-, SV -.
Orrick, SF +/-, SV -.
Paul Hastings, LA -, NY +, SF +/-.
Paul Weiss, NY +.
Perkins Coie, SEA +, SF -, SV +.
Pillsbury, SF +.
Proskauer Rose, LA +.
Reed Smith, SF -, SV -.
Ropes & Gray, SF +.
Rutan & Tucker, +/-.
Sedgwick, SF -.
Schiff Hardin, CHI -, SF -.
Shearman & Sterling, NY +.
Sheppard Mullin, LA +, SD +, SF +.
Sidley Austin, CHI +, LA +/-, SF +.
Simpson Thatcher, DC -, LA -, NY +/-, SV +/-.
Skadden, LA +, NY +, SV +/-.
Sullivan & Cromwell, NY +, SV +.
Wachtell, +.
Weil, Gotshal & Manges, NY -, SV +.
White & Case, LA +.
WilmerHale, DC +/-, LA -, NY +, SV +/-.
Wilson Sonsini, SF -, SV +/-.
Winston & Strawn, SF +/-.

It's Bar Time

It's right about the time that recent grads start stressing about the bar, so here is a thread to help spread, er, diffuse the anxiety.

You'll find lots of information about the bar exam -- which is essentially the same repackaged blivit each year -- by clicking here.

Your more specific questions (like what to do if you go into labor, will you die if your laptop melts down, or how to answer the 15 most common bar exam questions) are fair game for the comments section below. Responses, though maybe not answers, are sure to follow.

Good luck, everyone!

[Dead hand control update:  Anonymous reminds me this is a good time to move this thread up.  Good luck everyone.  Rest well, eat well in the morning (as in healthy and not the crappy eggs and bacon at the Hilton Garden Inn or whatever), follow the directions, and when you read the first question you will realize how much material you have mastered in about 2 months. -- Armen]

Pinky and the Brain

Apparently DE is trying to take over the world or at least become chancellor.  And apparently it's also that time of the summer when rising 2Ls freak out about CLR.

The former topic is something I have not heard anything about.  Is it true?  I don't know.  Why would DE do this?  Perhaps he has an itch to spam every Berkeley student's email inbox.

The latter topic has been beaten to a bloody pulp on these pages.  Bottom line:  very little of what you do in law school matters.  CLR doesn't matter for firm jobs.  Some judges still put stock into law students working on the flagship journal but only because it's some crude proxy for your academics, not because of anything you learn while working on a journal.  Justice Scalia for example hates the writing habits his clerks pick up while working on a journal.  If you write like people do on journals while in practice, you'll have some awkward conversations with whoever is reviewing your work.  Seriously, I cannot stress this enough...IT DOES NOT MATTER.

Now, if you are a nerd, and the betting public thinks you are, and you want to dig into some substantive areas of the law, by all means, join CLR or any of the other great journals (shout out to BJIL).  If you enjoy the camaraderie, go ahead, join a journal, a club, a circus, whatever.  But if you don't get on CLR, don't think your legal career is already doomed.  In the words of Tupac, "life goes on."

SCOTUS Week

Let's consider this an open thread on the key rulings that the SCOTUS will hand down / has handed down this week.  As always, don't expect anything profound from me.  But I am intrigued by the dissents in the Arizona S.B. 1070 ruling handed down today.

Justice Alito argues that a couple of the sections at issue implicate state police powers, so there has to be clear and manifest intent of Congress to find preemption.  Justice Alito attacks the Government's arguments as "unprecedented," but nothing that I would call partisan.  So alright.  Reasonable minds can differ.  But ok.

Justice Thomas thinks that you can only compare the words of the state statute and the federal statute to see if there is actual conflict.  Justice Thomas seems to think that States will not be crafty and that Congress has all the time in the world to review every single state statute that may conflict with federal law, then change said federal law to ensure that blah blah blah.  This is outrageous on its face and laughable.  Of course, that's the idea.  On paper, the philosophy sounds simple and straight forward.  So simple, that anyone with an 8th grade education can appreciate it.  But in reality, it's impossible to administer.  Even more impossible to ever find that the federal laws preempt any state laws.  In the end, "[s]ay what you will about the tenets of [Justice Thomas], at least it's an ethos."

Which brings us to Justice Scalia.  I just don't understand his argument.  He seems to treat states as full sovereigns not bound by the supremacy clause.  The gist, if I understand it, is that for 100 years, states were able to exclude all sorts of people, and they should continue to do so now.  It's almost like 200 years of history, including a Civil War that settled the question of the scope of state sovereignty, do not exist in the world of Justice Scalia.  Justice Scalia firmly believes that this part of the state's core sovereignty, and as long as the states are admitting those admissible under federal law and excluding those excluded by federal law, everything is Kosher.  Certainly any jurisprudence about Congress's plenary power over immigration is a footnote at best--merely a part of the "so-called field preemption."  This is a remarkable distortion of the relationship of the states to the federal government.  How is it possible that Justice Scalia can look at Art. I, sec. 9 (the clause precluding Congress from prohibiting the importation of slaves for 20 years) with a straight face and claim that it manifests a state's power to exclude.   

Justice Scalia doesn't stop there.  For example, he asks, rhetorically, "Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?  A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test."  Well, no.  That's not a good way of answering the question.  Pragmatically speaking, would the States have entered the Union if the Constitution contained the Court's holding and the States were aware of the advances in transportation and human mobility that would unfold in the next 220 years?  If we want to take this to the rhetorical extreme, we can also ask, would states have joined the Union without the 3/5 compromise?  No?  Oh well if not for the 13th and 14th Amendments, we should bring that back as well.  This is, again, a remarkable bait and switch that ignores the most recent 100 years of history and jurisprudence while embracing language in the Articles of Confederation.  It's nonsense.  The rest of the dissent takes hacks at the President's recent announcement on deferred action (though curiously, while attacking the resources that would be required to implement the President's policy, Justice Scalia is silent as to the resources that would otherwise be required to deport the aliens that fall under the umbrella of the policy).  Like I said, I just don't get it.

UPDATE 1:  When I first drafted this post, I included a sentence wondering if Scalia's dissent meant that he did not get his way in the ACA rulings.  Sounds like others are thinking along the same lines. 

WaPo has a great story on Bryan Stevenson, the NYU law professor who argued the juvenile life in prison cases.  Stevenson was the speaker for my class graduation.  An inspired selection, especially in hindsight.

UPDATE 2:  Well, here it is.  Initial thoughts listening to NPR on the way in to work:  Roberts is a genius.  There are a lot of reasons for that statement, but I believe, 10, 20, 50 years from now, his opinion on the Commerce Clause will be the equivalent of Justice Jackson's concurrence in Youngstown.  If you're a libertarian aching to claw back Congress's commerce clause authority to pre-New Deal days, this is your opinion.  In just a few pages, Roberts (1) establishes limits on Wickard ("The farmer in Wickard was at least actively engaged in the production of wheat, and the Government could regulate that activity because of its effect on commerce. The Government’s theory here would effectively override that limitation, by establishing that individuals may be regulated under the Commerce Clause whenever enough of them are not doing something the Government would have them do") (Opinion of Roberts, C.J., Slip Op. at 22); (2) takes the "broccoli" argument and reshapes it into a coherent legal argument about the government regulating diet based on the increased cost on health care (id. at 22-23); (3) establishes that the "necessary and proper clause" requires the act to be both necessary as well as proper, something previously left to the best guesses of law professors.  ("Even if the individual mandate is 'necessary' to the Act’s insurance reforms, such an expansion of federal power is not a 'proper' means for making those reforms effective.") (id. at 30). 

Boalties in the News

Above the Law has the story of the husband and wife (Boalt '98) duo from Orange County arrested for planting drugs in the car of a volunteer at their son's elementary school.  It's never easy to hear about Boalties doing stupid crap like this.  So until proven to a jury beyond a reasonable doubt, I'm going to assume that this was all part of a $1 bet by a pair of sibling brokers to see if they could turn two lawyers to a life of crime.

UPDATE:  I don't even know how to pass along the latest developments in this case with a straight face, namely Mrs. Easter wrote a book last year about committing "the perfect crime."  This is almost turning into one of those DirectTV ads:  "When you're a bored OC housewife writing about the perfect crime, you start to believe in your own delusions.  When you believe in your own delusions, you get into blood feuds with elementary school PTA presidents.  When you get into blood feuds elementary school PTA presidents, you plant drugs in other people's car.  DON'T PLANT DRUGS IN OTHER PEOPLE'S CAR."

BarBri 1.5 Speed (or more) Redux

If you're like me, you're impatient with the pace of the BarBri lectures and want to watch them at a faster speed. This has been an outstanding request with BarBri for at least a year, and N&B and ATL both have posts on this from last year. But if you don't want to dig through the comments, here's what currently works for me.

NB: AFAIK, this only works on Windows. If someone with a Mac has a solution, please chime in via the comments.

1. Install the Internet Download Manager (IDM). There's a 30-day free trial, enough time for you to download whatever videos you need.
2. Install VLC as a media player.
3.  Log in to BarBri and start watching one of the lecture videos. If you've installed IDM correctly, you'll see something like this:
   
   
   
   
4. Click the "Download this video" button.
5. Once it's done downloading, open the resulting .flv file in VLC. In the menu, go to Playback > Speed > Faster. This will increase the speed by 50%. You can also increment the speed a little more (10%) by selecting Playback > Speed > Faster (fine).

Pro-tip: You can use the keyboard to adjust playback in VLC as well. By default, here are some common ones (you can see the rest in the preferences somewhere):

• [ - 10% slower
• ] - 10% faster
• Space - pause
• Alt + Left - Jump back 10 seconds
• Ctrl + Left - Jump back 60 seconds
• Alt + Right - Jump forward 10 seconds
• Ctrl + Right - Jump forward 60 seconds

Again, not sure what the Mac equivalent of IDM would be. I suspect there's a Firefox plug-in but none of them seem to work for me. So if anyone has answers there, please chime in.

Clerkship Chat

Per commenter request, I'm creating this thread to let students ask questions about the unpleasant clerkship application process and to let alums share words of wisdom. I don't have any unique advice. I'll just echo what CDO emphasizes: be shameless about working every connection you can possibly think of. Getting your resume to the top of the pile is half the battle. Otherwise, cross your fingers, say a prayer, wish upon a star, do a clerkship rain dance, etc. Good luck!

In a word

A commenter asks in the thread below:  "Has this blog died down or is it just me?"  Well, I can't speak for others, but personally, I've seen a lot of material that I've wanted to write about, but haven't had the time to put together any intelligent thoughts on the subjects, e.g. Dewey collapse, comparing punishment in sports to theories of criminal justice, KINGS!!!!!!, stupid Berkeley bureaucracy punishing a kid for being creative, Boalties getting a shout-out in the California Lawyer Magazine for challenging said inane stupid bureaucracy in a different context (hmmmmm...a sequel?), qualified immunity for Yoo, etc.  That's not to say that if I even had the time I could string together any intelligent thoughts at all. 

All that said, a conversation earlier today with co-blogger L'Alex reminded me that a large number of the current crop of bloggers are graduating.  L'Alex professed to singing, "I got 99 problems but a [test] ain't one."  True enough.  Though I imagine once Bar/Bri starts, the focus will be on issue spotting the song for Crim Pro:

"Do you mind if I look round the car a little bit?"
Well my glove compartment is locked so is the trunk and the back
And I know my rights so you gon' need a warrant for that
"Aren't you sharp as a tack are some type of lawyer or something?"
"Or somebody important or something?"
Nah I ain't passed the bar but I know a little bit
Enough that you won't illegally search my shit
"Well see how smart you are when the K-9's come"

While summer here at N&B tends to focus on bar preparation and Bar/Bri in particular, there are other classes going into exciting summers.  Second years are probably wondering what's expected of summer associates.  And first years are probably going through that awkward phase of using legal jargon in their normal lives. 

So, whether you're about to walk across that stage, work with an assistant for the first time, draft your first bench memo, or embark on the deadly experience of searching for an apartment in Berkeley as an admitted student, congratulations.  You've all earned it.  Consider this an open thread to discuss anything and everything. 

Professor Quotes: Spring 2012 Edition

Latest edition of professor quotes.  Post away.  And if anyone is confused by the topic, comments in this thread should help answer your questions (key ones reposted here):

Anonymous said...
I am confused - do people write down exactly what their professors say and then flag it somehow as funny or cute? How do you all have all these quotes? I think it's weird.

Armen said...
I used to create a section at the bottom of my notes labeled "Professor Quotes." Then during class, whenever I heard something funny, witty, silly, or sad, I'd recreate it in that section as best as I could. Often I'd be corrected by those around me, and sometimes even here in the comments.

Patrick said...
That's exactly what I did, professor quotes heading, and all.

Creepy.