My Cousin FRE

I'm studying/outlining for Evidence (I just got to hearsay and that's half my notes...not kidding) and loking at the various ways for impeaching a witness, I couldn't help but run through My Cousin Vinny (originally I wanted to watch the movie tonight to study for the exam, but obviously I need to use my time on other matters). So these are the questions I have, and if you are studying for Swift's exam tomorrow, feel free to answer them (I request that only those studying for this exam answer first as a means of blowing stress...those who AmJured it in years past can chime in later).

1. When Vinny asks the fatty about how long it takes him to make grits and then badgers him on the stand, is he using inability to perceive/narrate, prior inconsistent statement, character for untruthfulness, or all of the above? [Hint: "Oh that's right, earlier you testified that you had just started to make breakfast..."]

2. Is the courtroom demonstration involving the two fingers being held up admissible under the FRE?

3. Assuming Mona Lisa Vito is not called to testify, did Vinny sufficiently discredit the testimony of the FBI tiremarks expert with an alternate theory of coincidience? Does this even apply or is a theory of coincidence only relevant to character evidence?

4. If Ms. Vito is qualified as an expert (putting aside the question of whether she is properly qualified under 702), then why does District Attorney Trotter object to clarify whether her testimony is an opinion or a fact? Can the witness properly draw a conclusion of fact or is this the job of the jury? What were the 403 dangers of allowing her to say, "Oh it's a FACT!"?

I'll add more as they come to me.

Quotent Quotables 2

This semester I was fortunate enough to have had Civ Pro II and Evidence with two great Boalt profs. You all know who they are. So without further ado, here are some classroom quotes from each.

Prof. Evidence

“My mind reading is kind of off today.”

“You don’t check your e-mail at 10 o’clock at night?”

“So it’s kinda like having an appendix?”

“I thought cocaine was a soft drug.”

“People don’t even drink gin martini anymore.”

“It’s obvious? That’s not going to do it [as an answer].”

“But he’s not the bookie!!!”

“Finally there is the interest of justice. This is like a combination of cherry pie and motherhood. Who can really be against the interest of justice? You can always throw it in.”

“After Monday I will not be holding office hours. I will be umm blowing town.”

“Can you imagine having this conversation the first week of class? This analytic thinking about evidence?” Various students: “or now for that matter.”

Prof. Civ Pro II

“I don’t like me in the hypo, makes me too anxious.”

“A big chunk of Delaware’s self-respect is vested in hosting corporations.”

“Someone else has taken a fancy to that horse.”

“Don’t fight the hypothetical.”

“Think about Brad and Jennifer. I often do.”

“He mentions tradition….TWENTY TIMES! I counted last night.”

“This is like those western gun slinging movies where both guys draw their guns, both shoot each other, fatally.”

*Screen rolling up* “I wish there was something behind it, it would be so much more dramatic.”

“Let me say a word today about my Valentine, Robert H. Jackson.”

“'No such number, no such zone.' Ok I got it out of my system.”

“Arbitration is a bit of Jewish law. Of course they know how to judge diamonds.”

“Get ready on call people.”

“That noted bastion of anti-trust enforcement…the Swiss Federation.”

“Assume that Defendant has a huge ranch in State B where he invites people for quail hunting. Stop. Stop that.”

“In Kansas, where everyone recovers interest, and the interest is as high as the elephant’s eye.”

“If I and Jet Li are in Hong Kong and get into an altercation and I get injured, which is quite likely….”

Student: “But that’s not what you’re looking for.”
Prof: “It’s a start.”

Student: “Can you say that again? Pendant is hanging what?”
Prof: “I’m hanging myself.”

Prof: “Should there be jurisdiction in this case?”
Student: “Yes.”
Prof: “The Supreme Court said no.”

“No questions? I guess you’re temporarily stunned.”

“The three law professors…HA HA HA.”

“There are lots of class actions, such as the Milli Vanilli fraud suits. But no one had any damages more than the cost of one CD, unless they were really big fans.”

“That’s all I have to say about removal, except one last thing.”

“We’re at the end of the hour and it wouldn’t be fair to keep you any longer in torment.”

“It’s not fair to hold you over for the beginning of spring break. Or ever for that matter.”

“The state is a strict SOL [Statute of Limitations].”
Class: *laugh*
“I’m not getting the joke…oh…now I got it. Kinda appropriate huh?”

“You’ll see in the next case we look at it has very strong Byrd-like features.”

Friday Abercrombie Blogging

On clearance.

Boalt Bored Redux

Alright with a new crop of 1Ls checking out the blog and probably mumbling profanities at me, I want to again bust a Volokh and shameless plug the Boalt Discussion Board that I set up. I think that forum is far more efficient way of communicating and would eliminate the clutter of yahoo groups e-mails and searching through comments here.

May Day May Day

Ok so by now most of you have gotten the e-mail from Dean Ortiz that Boalt will reschedule your Monday exam if you plan on missing it to take part in the immigrant work-stoppage thingy on May 1. I think it's very kind of the school to accommodate those who choose to take part. I just hope no one (1) abuses it to get a few extra days of studying and (2) tries to get an exam extension for every single social justice cause that falls in early May. Personally, I stopped taking part in May Day events after leaving the Soviet Union. It's just not the same without the large Red Banners.

Lest anyone take my thoughts and construe them to be ultra-conservative rants, I also want to take a minute to say something about this whole immigration nonsense. I think the U.S. like any other country has a right to secure her borders. But I cannot take any talk of immigration reform seriously. Here's why. The history and current dialogue in this country (see, e.g., Lou Dobbs) is nothing more than masked xenophobia. Prime example are the idiotic letters and postcards sent to Antonio Villaraigosa and Cruz Bustamante. Two former speakers of the Assembly, and prominent elected officials WHO WERE BORN IN THE UNITED STATES. Those are the kinds of people that I associate with "immigration reform." This might be irrational on my part, but up until this point in history I have not seen one iota of evidence that immigration is causing our downfall. Quite the contrary, such dialogue has always been used to fuel innate dislike of those "ethnic types." That is all.

Law of Gravity

Well, as I have said to Armen since he got on my case about blogging, I generally have nothing to write and today is no exception. However I would like to know what reason there was this morning of why the entire time I was on my train to work, it was deemed necessary that there be an enormous male arse (no I'm not writing ass armen) in my face. It was huge and not something I'd like to have within any form of close vicinity to my face at any given time much less for half an hour early in the morning. Cityrail's vendetta against me continues...

Can't Spell Suck without ASUC

Today through Thursday are the elections for the ASUC. I don't give a flying f*** about any candidates for any office. But I do want to emphasize the RSF referendum on the ballot. If you don't want to read my rant, just go to http://elections.asuc.org and cast your vote for the RSF.

So here are my thoughts on the RSF referendum. We are the only UC campus that does not have a mandatory fee for its rec services. This is also why we are the only UC with a ricockulous membership fee per semester. The finances of the RSF were funged from the very inception. This is a step in the right direction to get that department operationally in the red. The benefits of this should be self evident. By spreading the costs across a wider population it makes it cheaper for everyone to use. Also, mandatory fees are covered by financial aid, whereas the membership fee is not. Until recently the RSF granted financial aid waivers, but they are no longer doing that either.

The objections are few and unsound. What I've heard the most is that why should students who don't use the RSF pay for it. Oh....I don't know...maybe for the same reason you pay for the Chancellor's salary but never use him, or how about that Chem lab that I frequent! Our sister schools also don't seem to have any similar objection. In fact Davis and San Diego have opened up monsters of Rec Facilities that would make Solomon blush...all paid with mandatory fees. This Daily Cal article summarizes the referendum and the proposed fee structure pretty well.

In the interest of full disclosure, this year I served as a member of the RSF Advisory Board and saw the horrid state of its finances.

ADDENDUM: I enjoy reading Beetle Beat quite a bit, but I definitely have issues with him trying to get the referenda languages thrown out by the judicial council, but that's the least of it. I do want to point out this objection to the RSF referendum. It essentially raises the argument I mentioned above with the addition that Rec is bad because it's non-academic. Again, this is meritless. Either people should be prepared to have a true use-based libertarian basis of allocating costs or they need to recognize the value of allocating costs across a wider basis. I hope I don't have to point to lines in the school's budget that are not academic to point out the massive spending that we pay for with our fees. If student health and wellness are truly removed from university life, then I am prepared to call for cuts in spending in ALL areas of student services. The fact is, a student gym is NOT a luxury. With over 20,000 unique members, the RSF has a strong argument that is one of the most widely used units of the university (compare this to the number of people who use the Physical Ed Department that is funded completely with university funds or hell any other academic department on campus...ooh how about the UCPD? All of our tax dollars pay for them, what's up with that? I've never used them, why the hell should I pay for them? And if anyone thinks the UCPD are essential...I have a bridge for you). It IS an essential part of ANY university. We're not in the 70s where blowing rails was the gold standard of college health and fitness.

No Snitching

With the NBA playoffs and Boalt finals on everyones' minds, I'm sure all of you know where I am going with that subject line. That's right: it's either (a) Carmelo Anthony's star turn in a gritty, low-budget movie last year, or (b) a curious portion of Holly Parrish's email today on exam guidelines. OK, actually, it's just (b). Let's talk about this paranthetical section for a moment:

(Note: it's come to the attention of Dean Ortiz that some students intend to cheat by pasting material in to their exam answers. This is absolutely an Honor Code violation and offenders risk suspension. Furthermore, we will have to return to using Examsoft if this becomes an issue. There was significant opposition to doing away with Examsoft because of the fear of cheating by students. The faculty decided to permit exams to be taken without Examsoft because they trust students will behave honorably.)

I found this aside troubling, and a bit silly, on a number of levels. First of all, I find it hard to believe that Boalt students seriously "intend to cheat", or would be doing so openly that Dean O could find out, but perhaps that's just naivete. Note the assertion is not made as if Dean O merely "heard a rumor", but that she had confirmed the students' alleged intention. Has she? And how would Dean Ortiz come about all this information? Her web of informants? And was there actually serious faculty resistance to doing away with Examsoft? We never really heard about the decision-making process on that, so I just don't know. The whole scenario (students plotting to cheat, Dean O uncovering their nefarious plans, and the threat to reinstate Examsoft (OH NO!) "if this becomes an issue") strikes me as both unlikely and needlessly hyperbolic. It reminds me of a parent issuing a threat to a truculent child: "I'm going to get you pizza for dinner, but you have to eat your vegetables. I have heard -- and I'm not going to tell you how -- that you don't intend to eat your vegetables. If you don't eat your vegetables we won't get you pizza for dinner again. When your mother and I discussed this, we were worried that if we got pizza then you wouldn't eat your vegetables. We're getting you pizza because we trust that you will eat your vegetables."* I don't know. Exam studying makes me really grumpy, and the way that section was worded just struck me as a bit condescending.

None of the foregoing should be read as an endorsement of cheating or the administration's active efforts to ensure that cheating does not occur. It's just a plea that the administration at Boalt interact with students as adults. The rest of the email makes it clear that use of electronic resources under the new procedures (including "cutting and pasting") is forbidden. That should be sufficient, without adding in innuendo and rumor-mongering and threats.

That said, Boalties, don't cheat on your exams. Even if you're not caught, it's probably not worth either the effort or the risk considering the pernicious effects such behavior will have on your karma and your conscience. Moreover, if your are caught, it could get you suspended (I would have thought expelled, but whatever) and it could result in the reinstatement of the dreaded Examsoft. All that, and it's just incredibly lame. Don't be lame.

*Lengthy analogy kind funny on its own, but especially when you consider that the "pizza"/good stuff that they're offering us is really just a slightly more convenient and less technologically cumbersome way TO TAKE A LAW SCHOOL EXAM. Wow, talk about the soft bigotry of low expectations. They figure out a way to administer an exam more efficiently, and here I am comparing it to some kind of reward. It reminds me of the old saw about law firm partnership: Partnership is like a pie-eating contest where the prize for first place is more pie.

A Law Related Study Break

After spending a summer locked up in a small office in the judicial chambers of a U.S. District Judge with my co-extern, I think I've developed that special bond with her...the one that prisoners often have. Anyway, she needs people to take a very brief survey for her for a law and econ class on the behavior of juries.

January, February, and March birthdays, please go to:
www.cmvda.com/surveya.php

April, May, June birthdays, please go to:
www.cmvda.com/surveyb.php

July, August, September birthdays, please go to:
www.cmvda.com/surveyc.php

October, November, December birthdays, please go to:
www.cmvda.com/surveyd.php

I'll be more than happy to pass along any questions you may have to her. Thanks in advance.

USF'in Hot

That just about summarizes the admitted students at USF Law School. I was at their admit day reception today on an espionage mission. Let me tell ya...HOT HOT HOT. Although my cohort said that guys were not that cute, but still...how can we land some of those here?

Maybe I should transfer there. Sure they had a bunch of 3Ls without job offers and sure during OCIP the firms screen potential interviewees like a federal judicial nominee, but hey, at least I'd be around hotties. Or maybe it's the whole Catholic school thing.

"Son, You're Going to the Show."

Like Dennis Quaid in The Rookie, I've been called up to the majors late in my career here (and like Quaid, I'm no spring chicken). So I'll thank Armen and then, in true Nuts and Boalts fashion, the first thing I want to do is complain.

In contrast to Tom Fletcher's anthem for his third year, mine would have to be "It's Hard Out Here for a 3L." Inexplicably, my Telebears time gets later and later every semester while my friends seem to keep getting earlier time slots. Not only did I not get into the class I wanted most (Hecht's Negotiations), pretty soon I'll be setting my alarm clock for the middle of the night so I don't sleep through that primo 3:10am appointment slot.

If anyone is wondering how this stuff works and why they keep getting the shaft, when I complained to student services about my slot (petty, I know), I was assured that the times are randomly generated by someone at the main campus and that no one at Boalt has it in for me.

Another thing that's been bugging me is the imbalance of classes offered in the fall versus the spring. There is a visibly noticeable difference between the two semesters' class listings on the 'courses at Boalt' page--fall having 100-ish options and spring having closer to 200. I can't be imagining this, right? Obviously some fall offerings will be added along the way, but you get the idea. One theory I've heard is that professors by and large prefer to do their writing in the fall and their teaching in the spring. Empirically, it makes sense, but what about us? We're the ones paying to be here.

I'm just trying to learn here, folks. Which must be why I just spent half an hour writing this instead of studying.

Vote for American Law Prof

Well not really, but I want to reiterate (or just iterate) out of my own volition the importance of filling out the course evals online. I have a nagging feeling that most of us will now just ignore it because there is no piece of paper sitting in front of us and no time is taken out of class, but it is really the few useful ways to communicate about profs (aside from this blog of course). Speaking of which, I still want Mad J.D. to contact me (I knew he was a 2L) and I am still looking for rising 2Ls and 1Ls. Not a single interest to guest blog? Wow, what a blow to the ego.

Anyway, remember to fill out those evals and enjoy the boost in summer associate pay. :)

Searching for Bobby Blogger

A commenter to Tom's thread asks:

What will happen to this blog when you graduate?

Great question. I've been thinking about this for some time. E-Dub will of course be around for the next two years, but I did want to add some people. So, Mad J.D., contact me somehow, even if anonymously. Also, any current 1Ls or admits who have committed to Boalt who want to guest blog, let me know. We'll have a fight to the death to determine the next crop of bloggers. But generally, I intend to leave the blog into the hands of other Boalt students.

Shawn Bayern's Website

for unofficial enrollment counts is here. I'll have it on the sidebar at some point in the future.

Oops I see that Tom beat me to the punch, but I'll keep this here anyway. And I'm in Fed Courts, Corps, for now in the SCOTUS seminar, and of course public int'l law which conflicts with SCOTUS.

Damn, It Feels Good to be a 3L

Registering for courses next semester was a breeze!!

I'll be seeing you in: Federal Courts, Cole's Ethics, Patent Law, or Talley's Corps. (subject to amendment based on summer experience). I'll also see you in the Law & Tech writing workshop...

For all the 2Ls who do have to worry about waitlists, link.

Feel free to move all registration commentary here.

Blah

That's just about how I feel. I want to begin outlining, but I just can't get myself to. I want to catch up on the reading, but I just don't give a flying f***. Will I want to be back in school during the summer? Who knows. So, until then, blah.

Would Phil Jackson Take the Deanship at UNC?

Leiter had this story about the problems facing the UNC at Chapel Hill Law School's search committee for a new dean (also add story about Oregon facing similar problems). Specifically he cites to a MSNBC story that discusses Prof. Chemerinsky's reasons for declining the offer, namely the relatively low operating budget and the low endowment. The story then lists the endowment and operating budgets of various public law schools. However, since these numbers are fairly meaningless on their own, I'm also adding the latest figures on faculty at each school and the total number of JD students enrolled (this will of course exclude LLMs, etc., but it's for the sake of consistency and simple minds) based on the latest ABA data.

UNC
Operating Budget (OB) = $15 million
Endowment fund (EF) = $33 million
Full time faculty = 33-34
Adjunct = 33-48
JD = 715

UVA
OB = $50 million
EF = $250 million
Full time = 71
Adjunct = 74-79
JD = 1118

UMich
OB = $60 million
EF = $252 million
Full time = 54-58
Adjunct = 25-26
JD = 1179

UCLA
OB = $37 million
EF = $44 million
Full time = 68-69
Adjunct = 14-29
JD = 970

UGA
OB = $19 million
EF = $48 million
Full time = 36-39
Adjunct = 13-21
JD = 694

The story omits Boalt, and I've been searching for Boalt's pertinent info for the last two days. I want to thank all the Boalt staff members who helped get me the pertinent information. But thanks to Thomas Cunningham, I discovered http://calprofiles.vcbf.berkeley.edu a site that has a crap load of information. Here is the 04-05 law school budget data. As you can see, we spent $31.2 million. There's a wealth of information there, that you can peruse on your own. You can also see the previous five years here.

Thanks to Laurent Heller, I now have this shortcut for the sake of comparison. Bracketed comments my own.

UC Berkeley
OB = $38 million (this excludes capital expenditures...will be close to $42 million during the next FY.)
EF = $196 million (As of June 30, 2005 [given the performance of the market and the interest rates, this should be over $200 million now by my estimates.])
Full time faculty = 51 [this of course does include Talley, Lester, and other 05-06 appointments, but then neither do the numbers at other schools].
Adjunct = 44-63
JD = 874

Again, sheer numbers-wise, we're not too far away from the big boys. On a per-student basis, we're almost there. I don't mean to suggest that spending for the sake of spending is a good thing, but it means we can match (and with the Dean's Capital Campaign gathering a head of steam even exceed) the ambitions of those other schools. There are plenty of other faculty we need to poach, and numbers like this will go a long way in helping with the effort.

LSATiriasis

I've been asked to pass this along. As it is a worthy message and cause, I will.

***

Dear Member of the Class of 2006,

I urge you to participate in a vital and innovative research study that seeks to create a different type of law school admission instrument to be used in addition to the LSAT and LSDAS index score. This new test aims to predict a person’s likely effectiveness as a lawyer rather than solely predicting grades in law school, as current methods do. Working with psychologists who specialize in testing and predicting on-the-job effectiveness and using information gathered earlier from law grads, faculty and students, researchers (Professors Marjorie Shultz and Sheldon Zedeck) have created an array of new tests.

They are now beginning the final and most critical stage in their six years of research – administration of the new tests to various groups to evaluate whether the tests validly predict what they are trying to predict. Take the test now:

http://www.law.berkeley.edu/BeyondTheLSAT/

Weighing In

Boalt Hall 3L Class Presidential Candidates, I have one request. Make Stephen Bundy our graduation speaker. He's never done it before, and today's impromptu ballad on Erie convinced me. He's been a great teacher and entertaining colleague. And you know, you just know, that if he speaks at graduation, he'll play the guitar.

Post your thoughts on who you think the graduation speaker should be in the Comments...

I Must Admit

I kinda liked this year's crop of admits over the current 1Ls. I didn't notice anyone trying to impress anyone else. They were genuinely interested in the school and what it had to offer, while at the same time taking seriously other offers (as they should). All in all, should be a good class, and one I hope that will continue to make Boalt special.

But I have been ignoring the elephant in the room. The US News rankings! My thoughts are mixed. I feel that we should be high enough in the rankings to match our reputation, but at the same time, I really don't want to cater to the ranking methods (emphasis on LSAT, etc.) to get there. By all means, I hope the Dean and the rest of the faculty continue to steal top notch legal talents from other schools (Talley and Lester were not that big of a secret...it was widely known that they were visiting Boalt to consider the outstanding senior offer we had on the table. Once Talley began taking part in out-of-classroom activities I sensed it was a done deal. Also, Brian Leiter has an annoying habit of referring to the different UCs as University of California AT _____. I realize UT names its schools that way, but the University of California does not. A simple comma will suffice. Thus, we stole David Sklansky from the University of California, Los Angeles, and thereby making him a faculty member at the University of California, Berkeley.) Increasing the endowment, law library collection, etc. are also worthy goals that no one can really complain about. But NO ONE at Boalt should ever feel that they may not have gotten in if present admission standards (if at all different) were applied to him/her.

Anyway, I really don't want to turn this into a discussion about the rankings, but given the jump, it's worth mentioning. More importantly, I think there is an overall sense that under the leadership of Dean Edley the school is responding to a lot of the outstanding concerns that many have had and we're seeing gradual results. I hope to hear more current Boalties reconsider their career options with the announcement of the new LRAP guidelines.

Oh and what happened to the old diversity house? That place rocked for parties. What the dealie yo?

Trivia Part II

Where's the fucking schedule of classes for next semester? Anybody? Anybody?