Saturday, March 31, 2007


That is all.

Thursday, March 29, 2007

Dust in the Wind

My condolences to anyone who was supposed to summer here. The firm will be ceasing the practice of law within the month, among other things.

My takeaway from this: watch those satellite offices. J & G Dallas did little to nothing wrong - but J & G Chicago destroyed the entire firm. Says J & G:

The firm’s tax shelter practice was spearheaded by tax practitioners in J&G’s Chicago office who are no longer with the firm. Those responsible for overseeing the Chicago tax practice placed unwarranted trust in the judgment and integrity of the attorneys principally responsible for that practice, and failed to exercise effective oversight and control over the firm’s tax shelter practice. . . . We deeply regret our involvement in this tax practice, and the serious harm it caused to the United States Treasury.
And with that mea culpa, a national law firm is no more.

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Amusing Moments in IP

Being a companion piece to Isaac's recent postings; in the process of doing some historical IP research, I discover this gem:

The Black Crook is a mere spectacle -- in the language of the craft a spectacular piece. The dialogue is very scant and meaningless, and appears to be a mere accessory to the action of the piece -- a sort of verbal machinery tackedon to a succession of ballet and tableaux. The principal part and attraction of the spectacle seems to be the exhibition of women in novel dress or no dress, and in attractice attitudes or action. The closing scene is called Paradise, and as witness Hamilton expresses it, consists mainly "of women lying about loose" -- a sort of Mohammedan paradise, I suppose, with imitation grottos and unmaidenly houris. To call such spectacle a "dramatic composition" is an abuse of the language, and an insult to the genius of English drama. A menagerie of wil beasts, or an exhibition of model artistes might as justly be called a dramatic composition. Like those, this is a spectacle, and although it may be an attractive or gorgeous one, it is nothing more. In my judgment, an exhibition of women "lying about loose" or otherwise, is not a dramatic composition, and, therefore, not entitiled to the protection of the copyright act. On this ground . . . an injunction is denied.
Martinetti v. Maguire, 16 F. Cas. 920, 922 (C.C. Cal. 1867) (Deady, J.) (refusing to enjoin a San Francisco theatre's production of "The Black Rook"); but cf. copyrights registered to Sheila Kelley (search Copyright Office for "Kelley, Sheila" in the author field).

FYI, OED defines a "houri" as "a nymph of the Muslim Paradise. Hence applied allusively to a voluptuously beautiful woman." I suppose maidenly implied some moral quality then?

Further, "grotto" in this instance is likely "a cave or cavern, esp. one which is picturesque, or which forms an agreeable retreat." So... not an underwater cave where shellfish live in this instance.

Meanwhile, Judge Matthew Paul Deady was, oddly enough, a judge on the Oregon District Court who left practicing law in Maryland in 1849... so basically, when you play "Oregon Trail," you're playing Judge Deady.

I figure between outlandish copyright infringement, anachronistic religious slurs in the federal reporter, Oregon Trail, and the OED, I've hopefully brightened your workaday spring break. Now, back to my paper...

Wednesday, March 28, 2007

A DB By Any Other Name

Dear Boalt Admits,

Please do not ever do this.


P.S. Good news that VA has dropped from our ranks, but I still think we're a better school than Michigan. And what's Penn doing in the top 10?

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Tuesday, March 27, 2007

The Madness of King Lat

Several commenters in the previous thread asked for a mention of Above the Law's "March Madness" brackets--it's just like the real Tournament, except the winner here will be named "coolest" law school! Oh, I am all atwitter with anticipation. Boalt is currently taking on Michigan in the first round.

So is the winner of this little competition really the "coolest" law school, or actually the "loserest" law school? I'm not real sure, but I'm thinking that a loss by Boalt here will be far less crushing to me than UNC's choke job against Georgetown on Sunday, which completely killed my bracket.

Anyway, go vote--or don't. Whatever.


Pet Premium

A proposal that would allow San Francisco tenants to agree to pay landlords up to 5% of the rental value of an apartment to keep a pet is sparking a debate. Currently, most SF apartments are pet-free, and tenants and landlords cannot agree to bump up the rent in order to add a pet—this would run afoul of the City’s rent control ordinance.

Proponents say this proposal would allow more people to have pets, give landlords incentives to be pet-friendly, and improve quality of life. Opponents say it will lead to higher rents, especially where a tenant and landlord have a verbal agreement allowing a pet, and that landlords should simply be required to accept all pets.

This morning’s Forum on KQED featured some heated exchanges regarding this proposal (audio should be uploaded soon). See also the Examiner’s (cursory) discussion here, and a blogger’s thoughts here.

This is an issue because rent control places strictures on private freedom of contract. It shows that when landlords are limited to increasing rent by 1.5% annually, they will do what they can to reduce their potential costs, i.e. restrict tenants’ ability to have pets. This proposal gives tenants and landlords a way to escape some of the rigidity of the system.

However, this proposal also appears to accomplish an end-run around rent control. Would the increase, up to 5%, be permanent, or only contingent on the tenant staying and keeping the pet? If the doggie dies, does the rent decline? This much is not clear.

Finally, I don’t think it’s a good idea to require all landlords to accept pets into apartments. While pets improve quality of life, I see far less compelling reasons for this than for other measures, such as prohibiting discrimination based on race, age, religion, etc. There are good public health, safety, and aesthetic reasons not to mandate pet-friendliness. I am reminded of this every time I come home and my neighbor’s dog starts yapping. I haven’t yet figured out how to get my fuchsia to bark back.


From Budget Director to Criminal Defendant

Former Reagan budget director David Stockman is accused of inflating his company's accounts receivable as it approached bankruptcy, in an effort to make it appear more credit-worthy than it really was. Pretty run-of-the-mill stuff, as securities fraud goes. I have no position on the case, other than to be reminded of this ingenious episode from Berkeley Breathed's ingenious comic strip Bloom County:

Bobbi Harlow: Your biology project, I assume?
Milo Bloom: Yup. A twelve-foot python named David Stockman. Eats rabbits.
Bobbi Harlow: Bunnies?
Milo Bloom: Yes. I've named them after various social programs. I'm afraid it was little CETA's turn, yesterday.
Bobbi Harlow: Ugh! That's horrid!
Milo Bloom: Well, that's the point.

Resurrecting Spring Break

Wow it was really depressing to read Disco Stu's post below. So I'm attempting to make other Boalties and admits proud. These are my last two days.

Wine Tour in the Hunter Valley

Blue Mountains and Jenolan Caves

Token Bryson quote about the highway we took to get to the Blue Mountains, Katoomba, and the Caves: "The route goes up and through the mountains and for much of the way passes along such confined spaces that there is no room for a big modern road. So the Great Western has the tight bends and unyielding width of a road designed for an age when motorists clapped goggles over their eyes and started their cars with a crank."


Monday, March 26, 2007

Notes from Spring Break

While Armen enjoys sunny Australia, Disco Stu is stuck doing his writing requirement in the computer lab (1Ls and 2Ls take note: don't leave your writing requirement until your second semester 3L year, even though, DS has to admit, it is kind of fun writing something that makes sense and is of infinite more importance than your standard law school final), and wishes to make the following, fairly obvious, recommendations.

1) There are way, way too many people in the library. DS ran into Mr. Zaur this morning when we were the only two in all of Boalt Hall. Now, post lunch, it almost looks like a normal day. And 3L procrastinators DS could excuse. Do the rest of you not have a life? Why aren't you doing something fun for spring break? There are probably some legitimate excuses out there, but it really hurts Boalt's reputation as a laid back law school when so many people are here the first monday of break.

2) The reference librarians are AWESOME. Use them. Seriously, DS spent maybe one and a half hours yesterday researching two items, to no avail. It took the geniuses at the reference desk about 15 minutes to give me both. It's probably against the rules or something, but DS is considering asking them a hard exam question when one arises this semester. They are an under-utilized resource, and that's ashame.

3) Writing requirement and chipotle is a dangerous, lonely mix when no others are around.

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Sunday, March 25, 2007

Sunday Literary-ism

Attacking and belittling plaintiffs is an age-old game. Lest anyone think that making fun of people who bring lawsuits is merely a feature of present-day pop-culture and the tort-reform wars, I submit this passage from King Lear. I’m including a lot more of the dialogue than is strictly necessary for the legal reference, because this also happens to be some of the best verbal abuse to be found in literature:

Why dost thou use me thus? I know thee not.

Fellow, I know thee.

What dost thou know me for?

A knave; a rascal; an eater of broken meats; a
base, proud, shallow, beggarly, three-suited,
hundred-pound, filthy, worsted-stocking knave; a
lily-livered, action-taking knave, a whoreson,
glass-gazing, super-serviceable finical rogue;
one-trunk-inheriting slave; one that wouldst be a
bawd, in way of good service, and art nothing but
the composition of a knave, beggar, coward, pandar,
and the son and heir of a mongrel bitch: one whom I
will beat into clamorous whining, if thou deniest
the least syllable of thy addition.

(Act II, scene ii)

Saturday, March 24, 2007

No Way Out

Aussies (pronounced Ozzies) have an incredibly weird tendency to name or pronounce things a tad, shall we say, differently than us. As the picture on the left illustrates, an EXIT becomes "Way Out" (also notice that Parking becomes Carpark, I guess no motorcycles need apply). Almost as if dumbing things down for a toddler just learning to speak, names take on their basic functional definitions. If not, then a name will be something completely obscure that makes no sense. This is when I realized that the writers of The Simpsons are beyond genius. A kid who scores 150 on an IQ test might be genius. The music of Beethoven is genius. But the "Bart vs. Australia" episode is beyond genius. Observe dear gentle readers.
Clerk: They're like kangaroos, but they're reptiles, they is.
Marge: We have them in America. They're called bullfrogs.
Clerk: What? That's an odd name. I'd have called them "chazzwozzers"
In fact, when I went to the zoo yesterday, I learned the Aussies have a problem with frogs brought over from the US to help control their sugar cane pests. Turns out the frogs ate the pests, the canes, and a few of their precious native insects.

Also at the zoo, I learned that the giraffes (pronounced girahhhhffes) have the best view of the city. But back to weird names. The inspiration for this post came from my attempt last night during dinner to order a cup of decaf coffee with my dessert. The whole scene was something along the lines:
Me: Do you guys have decaff?
W'tress: Yeah
Me: Well I'll just have a decaf coffee.
W'tress: What kind?
Me: Just coffee thanks.
W'tress: Yeah but what kind?
Mary: HAHAHAHAHAHAHA...I forgot, you guys can't order coffee.
Me: What the f...?
Mary: He wants a flat white. Sorry I should have warned you. I even read about it in Bryson.
Well I did my own digging this sleepless morning (it's 7 AM Sunday morning here). And of course, Bryson says it much more eloquently than I ever could.
I didn't even know how to order coffee. It appeared that you had to specify length (principally long or short), a colour (black or white) and even an angle of orientation to the perpendicular (flat or not), and these could be put together in a multitude of permutations -- 'long black', 'short black', even 'long short black'. My own preference, I discovered after many happy hours of experimentation, was 'flat white'. It was a moment of the sublimest happiness. -- Bill Bryson, Down Under.
My hotel room, however, is fully equipped with a drip coffee maker. I never knew Mr. Coffee was meant to create a long flat white. But more importantly, the writers of The Simpsons did.
Marge: I'll just have a cup of coffee.
Bartender: Beer, it is.
Also, these guys have two flushes: a full flush and a half flush. The half one is for the likes of Disco Stu who live by the mantra, "If it's yellow, let it mellow."

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Thursday, March 22, 2007

Oy Andy

"I was back in Australia after a trip home to fulfil some other commitments and I was feeling, I have to say, pretty perky. The sun was gorgeously plump, the city coming to life -- shutters were rattling open, chairs being set out at cafes -- and I was baasking in that sense of wonder and delight that comes with being freed from a sealed aeroplane and finding myself once again Down Under. I was about to see Sydney at last." -- Bill Bryson, Down Under
So here I am in lovely Sydney, Australia. I got into the city from the airport using the CityRail system. And I must say, I'm quite impressed. So let's call this post an Ode to Sydney's Mass Transit System.

Recently a report came out (my friend Mary is seen walking at the end of this story) labeling Sydney's CityRail system the world's worst. The criteria were cost per passenger to run the system, and a few other factors. I think the report is b.s. First, Sydney's system covers 2000 km of rail (that's 1200 mi for you Americans). By comparison both BART and LA's MTA have well under 120 mi of rail. Sure Sydney is a bit more sprawled out, but imagine a system that combined CalTrain, AmTrak, SF MUNI, and BART. That's CityRail. It travels as far out as Sacramento, if not more so. It's over and underground in the City. I can go on, but in short, it is VERY comprehensive. A few of the other cities mentioned in the study, for example Moscow, have DISTINCT transit systems. Moscow has a thorough subway system, as well as an above ground system. The two are not linked. In Sydney, they are. It's all CityRail.

The trains are amazing. They're double decker. You enter the train through doors at a mezzanine level. Then there are stairs that go up or down. I think some of the Amtrak or Caltrain cars are like this. In short, double the capacity of any BART carriage. The ride is silky smooth. By comparison, I feel like I need a mouthguard any time I ride BART. Honestly, after learning about that report, I expected some steam locomotive operated by Aussie Oompa Loompas. Instead I got on an electrically driven train (0 emissions for you environuts...of which I am one when it comes to mass transit at least) that glided on air. I can't figure out how I didn't feel the separation in the tracks. But for whatever reason, these cars had amazing suspension. Did I mention they're double decker?

Lastly, apparently the biggest complaint about riders is that someone with a huge ass might stand in front of you. Whoop dee doo. I bet in less than 5 minutes commenters can flood this thread with horror stories from the BART or the mass transit of any other US city. All you need to do is read regularly to get a few each day. What I witnessed was quiet, polite, almost drone-like people robotically going to their seats upon entering or getting out of their seats exactly 15 seconds before the train pulled up to a stop. Oh the train has signs that announce the next station. Even if you're from Dallas and can't understand "City Centre" in the Aussie accent, the LCD display makes things crystal clear. None of that muted transfer announcements about McArthur station you (don't) hear on BART.

But I wouldn't be a true American if I didn't criticize CityRail for something. Their trains run in the wrong direction. I almos tgot my head ripped off looking to the left on an inside track when I heard a train coming, then the thing came out of the right. Weird. Pictures to come.

Another Reason to Subscribe to the WSJ

UPDATE & Commentary II: The government's first witness, Mr. Wolfe (another Qwest executive) also sold stock during the time period Nacchio did. He testified: "I had a crisis of conscience. I knew it was wrong, . . . I shouldn't have done it before. I quit." Ouch.

But on cross-examination, I think the defense kneecapped the witness, and the government, by getting to their first guy.

Mr. Wolfe admitted on cross that he never consulted a lawyer during the period he sold the stocks, and only consulted one when he became a target three years later. So... how did he "kn[o]w it was wrong"? Don't you think you'd want to check if you a) had just unloaded a lot of stock in a way you thought "was wrong" and b) to see if you were actually wrong and could keep unloading stock? This whole line of "I knew it was wrong" sounds completely fabricated to me.

Mr. Wolfe's sterling credibility further demonstrated:

Q: "When the winds started blowing the other way, you cooperated, right?"

A: "I was concerned I'd be prosecuted."

Mr. Wolfe received immunity for his sales.

I'm sorry if my natural inclination for the criminal defendant is coming on extra-strong here, I just think that this prosecution, plus what we know about the U.S. Attorney debacles, forces me to connect the dots with the fact that Nacchio/Qwest was the only telecom to oppose the NSA wiretapping...

Today's full coverage here.


The trial of Joseph Nacchio, former CEO of Qwest, is off to a start in Denver before Judge "the Sheriff" Nottingham (real nickname). Nacchio's lead counsel is Herb Stern (himself a former federal district judge). Intervenors in the case include four agencies so classified their names could not be revealed (?!). The criminal charge is insider trading. The Journal's coverage so far has been riveting and comprehensive - I highly recommend it.

Today's coverage: here.

UPDATE: I forgot to add one of the many kickers to the story. The defense will be calling Richard Clarke, of intelligence/counterterrorism fame post-9/11. Call it a hunch, I think he'll be willing to testify. Unlike these guys.

Wednesday, March 21, 2007

Best of . . . Boalt

DS has been waiting to post this question and discussion for a while. He didn't want to do it too early because he would be giving up his favorite spots. But some commentors got to it already, with respect to water fountains, and he will be finishing up his writing requirement in the library next week all alone, so it's really not a bad time to ask the question: where is your favorite ____?

Water fountain? DS has to disagree with the notion that it's the one outside Booth. That one is okay. It's cold, but it's all tucked away and it gives DS the heeby jeebies (not really sure why). His favorite water fountain isn't a fountain at all. It's the water cooler outside DE's conference room inside his suite of offices. DS has never seen another student filling up a water bottle at this cooler. The water is cold and refreshing and, best of all, water coolers dispense water faster than a water fountain. 10 seconds to fill up a nalgene. Tops. DS highly recommends it, but not until next year. And definitely not around 11:10 on Mondays and Tuesdays before DS goes to class. Honorable mention to the fountain outside the vending machines on the second floor hallway behind zeb. Cold water. Relatively student-free. The best "fountain" in the school

Bathroom? Slim pickens here. First couple of years DS was a fan of the bathroom next to the main lecture halls. Not so much anymore. If DS is at Boalt, chances are he's in the library, and he finds the library bathrooms adequate for his needs. Really, any single bathroom is preferrable to a stall type situation. But, it's always a little nervewracking to open that door and find someone waiting. He's never gotten used to that feeling. Are the women's bathrooms as terrible as the men's?

Place to study? Well, if it's dinner or lunch time, there's not much choice: it's got to be the main reading room. Other than that, he likes the study carrels in the back right room of the library -- closest to the bathrooms. He's never tried the room across from the goldberg room, but that seems pretty nice. Other than that, there really aren't many good places to study.

Those are the only categories DS can think of. Did he miss anything? Do you not agree with his, but are unwilling to give up your own secret spots for fear they'll be innundated with sleazy law students? Comment away.

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Tuesday, March 20, 2007

Pride or Prejudice?

The e-mail from the registrar informs us that April 1 (which is actually a Sunday) is the last day for add/drops. Again, with the modification that April 1 is a Sunday, a commenter below makes astute observations that I quote in full
What is up with the Registrar letting us know today about the drop deadline of Monday, April 1. Since it is the first day after spring break, if you wanted to drop a Monday- or Tuesday-only class, you would have to have already gotten the signature before she notified us of the deadline. Similiarly, if you want to add a writing class (LAW 299) and your prof. is taking a long spring break, you are SOL. Another smooth move by the Registar!
I agree with the commenter in full. I'm just wondering WHY I agree with him/her. Is it objectively reasonable to be pissed off, or is it just all the registrar bashing around Boalt creates an expectation and we're just victims of the confirmation bias? Maybe it's our fault. The deadline is probably in some publication. Maybe it's in a memo convenient placed in my locker, or maybe it's in the planner that I can't find. Thousand to one odds it might even be online. Moral of the story, if you're considering Boalt, "self-starters preferred."

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Sunday, March 18, 2007

Ceci N'est Pas Une Public Post

Tomorrow morning I will be appearing on San Francisco NPR affiliate KALW 91.7 FM's "Your Call Radio" program. You can find a link to the webcast and to archives at the website. The topic du jour will be "What Is Private And What Is Public In A Blogged-Up, Myspace World?" My answer? I don't know.

Even this blog underwent an evolution. As my own earlier posts (and even the Daily Journal article that profiled me) illustrate, during the first year, I mainly posted about my own impression of law school, whereas co-bloggers Tacitus, Tom Fletcher, and Ann Hayekian have always been more topic oriented. It just wasn't the center of online discussion that it is today. I think (a) the grades SNAFU during the summer of 05 and (b) OCIP 05 provided the impetus to change. For example, if I posted about my hunt for free lunches now, you'd all mock me worse than you mocked Mary's post about Sydney subways.

Anway, I need to finish my writing requirement before heading to Sydney. Wish me luck. Admits may still ask their questions here.

UPDATE: In case anyone is incredibly bored, the program is here.

The Law Salic

In an effort to out-nerd the nerds over at The Volokh Conspiracy, I hereby inaugurate a new feature. Jonathan Adler has his Sunday Song Lyric. Get ready for—the Sunday Literary Allusion.

Today’s literary-ism comes from Shakespeare’s Henry V. Specifically, from Act I, scene ii. Henry, the new and untried king, is contemplating a war of territorial aggression against France. All the important lords are in attendance. The King asks the Archbishop of Canterbury to explain England’s right to the disputed land. Canterbury replies with about 60 lines of totally incomprehensible pentameter explaining the relevant law of succession and inheritance (mainly having to do with whether and when title can descend through a woman).

Henry, ignoring the legal exposition, replies with a single question: “May I, with right and conscience, make this claim?” This time Canterbury’s answer is blessedly direct: “The sin upon my head, dread sovereign.”

I think there’s a lesson here. Clients in a counseling context have highly situational need to know what they can and cannot do. They don’t care about the logic of the law. At all. The GC of Volkswagen of America, who spoke here recently, said that one essential rule of working in-house is that you never send a memo of more than one page to an executive who asks you a question.

The whole scene is masterful. This is by far my favorite of the “History” plays.

Friday, March 16, 2007

Ontario, Eh?

Some commenters noted that all we do on this blog is complain. In an effort to piss them off, I'm going to complain. I have nothing to complain about. This is all my fault. I waited this long to register for the bar exam. As a result, my choices for a laptop exam were Ontario, San Diego, San Mateo, or Sac. So if anyone hasn't yet booked his/her test, do so quickly. You don't want to end up in Sac. I'd even be willing to take it in Fresno over Sac. What a horrible city, and an even worse basketball team!!!

The silver lining is that it looks like the application program has some sort of an internal count that removes test centers that are fully booked, which leads me to believe that those of you who got SF or Century City will probably get your first choice.


Thursday, March 15, 2007

Official March Madness Thread II

Ah, my most favoritest two days of the year! May the basketball wash over you, the upsets flowing like accusations of Fascism and Communism! So many questions will be answered today: Can Billy Packer be any more unlikeable? Joakim Noah: ugly woman, or ugliest woman? Will Maryland make The Crow eat crow?

Thoughts, predictions, and comments on games, players, announcers all encouraged!

UPDATE I: Well, TF's heroic 10 AM visit to Henry's aside, it was a rather unremarkable morning. The top seed won every game, with only 1 game within single digits. Penn put a bit of a scare into Texas A&M but couldn't hang with them down the stretch; Old Dominion had a shot against Butler, but got flustered when the Bulldogs hit a few 3's; The Crow is enjoying a steaming plate of crow, served by a Terrapin; Oral Roberts hung tough in the first half, but they were just too nice to stay with WSU in the second; and Stanford was crap, pretty much from beginning to end.

So is this just prelude to the craziness tonight? Are Duke, Pitt, and--dare I say it--UCLA in trouble? Or are we in for the most boring first round in the history of the universe? My guess is that it will be a fun night, but it's not yet clear if that's because of the basketball I'm watching or the Miller High Life I'm drinking.


Wednesday, March 14, 2007

It Isn't Like Biting a Stripper

Following up a bit on E Dub’s earlier post on the U.S. Attorney firings... There is concern that these U.S. attorneys were fired because they refused to bend under the Bush Administration’s political pressure regarding whom to prosecute and how. One of the reasons this is such a big deal is that under normal circumstances U.S. attorneys don’t get fired unless they do something really terrible.

At any given time there are 93 U.S. Attorneys serving in an administration. According to a recent Congressional Research Service report, over the past 25 years, only 54 USAs have left prior to the completion of their four-year terms. Of these 17 left to become Article III judges (not bad), while most of the remainder left to either run for elected office or go into private practice.

According to CRS, here is what happened to the rest:

Two of Reagan’s USAs were fired. One of these disclosed confidential information regarding a pending indictment. Another was dismissed after charging the Justice Department and CIA with blocking an important prosecution – later convicted himself. A third resigned after reportedly accusing his predecessor of drug use, while admitting to using marijuana himself.

Two USAs were apparently pressured to resign under Clinton. Larry Colleton resigned shortly after he was videotaped grabbing Jacksonville television reporter Richard Rose by the throat. Kendall Coffey resigned “amid accusations that he bit a topless dancer on the arm during a visit to an adult club after losing a big drug case.”

So there it is. That is what it takes to get the axe as a U.S. Attorney. Until now.

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Tuesday, March 13, 2007

Putting Hegel Right-Side-Up Again

In the current breathless climate epitomized by, it’s easy to forget that there were law school prestige wars a long time before there were ever USN&WR rankings. tells a pretty fluent and compact version of the story.

The earliest American legal education worked on the apprenticeship model. The first organized U.S. law schools centered around well-reputed individual attorneys or groups of practitioners. These instructors retained much of the apprenticeship model, lecturing and training on practical skills.

When Christopher Columbus Langdell took over the Harvard program, he did much more than invent the case method and the first-year curriculum we all know and love. He also began to shift the whole approach of legal education from a practical to a quasi-scholarly pursuit. Many--but not all--schools followed in his footsteps. The intervening period has seen a pronounced divide between schools emphasizing practical skills and those that aspire to be, like Harvard, centers of legal scholarship.

Schools on the pre-Langdell model have typically had evening and part-time programs; Langdell-style schools did not. The former continued to teach state law in a serious way; the latter generally focused on federal law or on the commonalities between and among state bodies of common law. See, e.g., the ALI’s Restatements and “Principles” projects. There has been a degree of convergence, and the quasi-scholarly Harvard model basically won the battle for prestige, in part by capturing the relevant ABA comittees, creating the AALS, and forcing nearly all schools to adopt their core curriculum and basic method of instruction.

Even today, though, there’s a clear line between schools that, for instance do and do not have evening or part-time programs, schools that emphasize state over federal law, and—the occasion for my present post—schools that do and don’t put real emphasis on and direct real resources towards their trial advocacy programs.

It’s not a coincidence that Harvard and Yale historically have not had strong trial programs—it wasn’t gentlemanly, it wasn’t consonant with their view of legal education, and it just wasn’t “the sort of thing” they did. It also wasn’t possible for them, since they tended to hire instructors with limited practical experience. And so it’s not a coincidence that Boalt and other schools aspiring to membership in the Harvard/Langdell club have also tended to lack such programs—it was a way of proclaiming that we “belonged” to that select crowd. Meanwhile, many “lower tier” schools have continued to train people to be trial lawyers. Much of the strongest competition in the trial advocacy realm comes from schools not normally mentioned in the same breath as Stanford, Boalt, or any of the other “top ten.”

But we happen to live in exciting times, trial-advocacy-wise, at Boalt. Interest in the program is at a record high. Boalt has fielded a total of seven trial teams in four separate regional and national competitions this year. Competition results thus far have been very positive, and in fact our SFTLA team won first place in their fall competition--by a landslide, according to all reliable reports. Several outstanding practitioners have volunteered a great deal of time to the program, and participants are very enthusiastic. (I am a participant, for example, and I am totally enthusiastic, in case you can’t tell.) Note that this is all taking place at a time when Boalt is also rising in the heavily Langdell-inflected USN&WR rankings and investing in quasi-scholarly centers like BCLBE and the Earl Warren Center.

So I encourage people to try out for next year’s trial teams, when the board of advocates holds tryouts. There’s a workshop this Saturday that it may not be too late to sign up for. There are some excellent trial ad courses available. Ask around. Think about it. If Hegel is right that history is an episodic narrative of thesis (the apprenticeship model) and antithesis (the Harvard/Langdell model), then we may be at the cusp of a paradigm-shifting synthesis—the Rise of the Boalt Hall Trial Ad Program.


Har Dee F*&#%@* Har Har

The NY Times has this article on how the muffin joke is not funny. Professor Jack Balkin has a vigorous defense of the joke. I personally think the joke is a killer. I mean it's gold. But the study itself doesn't really pass the "Grandmother Test." A psych TA explained to me in a research course that the "Grandmother Test" is whether your grandmother could answer the research question that you are trying to explore. I mean well yeah, of course we're going to laugh harder in social settings than when we're alone. I personally RARELY laugh when I'm reading something, esp. IM conversations. That's why I have a sliding scale to indicate level of laughter. For example, lol = mildly amusing; LOL = oh hey that's kind of funny, I think I smiled; LMAO = Good one, I actually chuckled; LMFAO/ROTFL = You're a comic genius, I'm actually laughing while sitting in class.

This is really all just a long way of linking to these two videos. Part I and part II. If you have good one or two liners, feel free to post.

UPDATE: Jonathan Adler and Sasha Volokh of the VC are with me. The joke's A material. Incidentally, in the initial post Balkin referred to one of my favorite movies, "Dr. Strangelove" and now he refers to one of my favorite comic strips, the Far Side. It's really unfortunate you can't find them easily online.

Monday, March 12, 2007


'Tis the season for student groups to cajole you to pledge money you have not yet earned. As an earlier thread indicates, there is not enough money to go around to support all the worthy causes.

The panoply of groups and causes makes me wish we had an index of the most accountable organizations, so we would know who to promise our money to. For instance, how much of my OC Prom ticket went to the “Sandy?” How much from the BLF auction or spring drive is actually funding people, versus paying for two-buck Chuck, busted windshields, and ambulance rides? Last summer I did not donate anything to BLF because they never gave me the auction item I won and paid for, despite half a dozen emails to different people. This year’s auction did not exactly restore my confidence. (The item I donated generated $75, but I can’t help but wonder if it would have garnered more if people could SEE it.)

I don’t doubt that the organizations have all the best intentions. Nevertheless, I think if we had better information or metrics for effectiveness, in terms of how much of my dollar reaches a deserving person, I would be more willing to give.

Just to pick on BLF some more. I looked at, and learned the following: “The Berkeley Law Foundation is soliciting proposals for public interest law grants for the 2004-2005 year.” Fascinating. Actually, other parts of the website are more up-to-date, but nowhere do we see a statement that shows what BLF takes in & disburses. How much is donated by students? Alumni? Faculty? Law firms? How effective are matching grants? Who has received the summer stipends & Phoenix Fellowships? What are they doing now? What are the operating costs of BLF?

I think open info about the student groups (and affiliated organizations, such as EBCLC) would bring more money where it could be used best, improve accountability, and increase donations overall, since my hunch is that most groups distribute virtually everything they receive.

You could repeat this for other organizations as well, including, well, our own Boalt Hall. Sure would be nice to know how this capital campaign is proceeding. Anyone know where we can find numbers? Or how about intermediate goals, instead of just going for $125m? Or concrete improvements: I’d be willing to donate to a fund for climate control in the library or for toilets that flush and don’t leak.

In the meantime, go to the Barristers' Ball this Friday. You’ll find me dealing blackjack & donating to the HHK…

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First Star I See Tonight

Musing 1: From Berkey Photo: "The cryptic Alcoa opinion [is] a litigant's wishing well, into which, it sometimes seems, one may peer and find nearly anything he wishes."

I love the phrase "litigant's wishing well." [But do people actually peer into wishing wells??]

Musing 2: I posed this challenge earlier today to myself, and now to you readers: name 3 right & good copyright decisions from the Ninth Circuit Court of Appeals. Good luck. The most anyone I queried could think of was two. The list of opinions with atrocious & muddled reasoning on the other hand...

Musing 2.1: Why does the Ninth Circuit at times underwhelm? It's the circuit that encompasses the most people, the most dynamic industries - and yet, I can't think of a Judge Hand (notwithstanding Alcoa, ugh) or Judge Friendly. Maybe such a jurist is still in the making, since the West has only soared in the last 75 years or so. Any commenter-submitted greats, and some particularly good cases of theirs?

Musing 2.11: The California Supreme Court has had some fantastic jurists. It's a shame our studies don't bring us into contact with them as much.

Musing 3: Ah, spring evenings. Telegraph Av. finally quiets down, the ocean breeze drifts in [a westward-window is wonderful in Oakland] - perfect.

Build Me Up

Great article in today's LA Times (Hattip to the Bashman) about Dean Edley's pitch to the UC Regents about proposed fee hikes. Read the whole thing. I side with the Edley/Allen side. Realistically, the fees have to go up if we want to see Boalt on the rise. One serious problem though that's sort of implied in the Herrera quote but not really flushed out is potential students from lower economic backgrounds. This problem hit me a few years ago when I told a friend she's basically SOL if she has horrible credit while applying to law school and she can't find someone to be a co-signer.

Anyway, those are my substantive thoughts. Here are a few excerpts that caught my attention.

"'Overwhelmingly, our students are interested in a great education, not a cheap one,' he says."

"Without a long-term commitment for more funds, he predicts an exodus of top faculty — and his own departure."

"Some of its lecture halls haven't been renovated since they were built in the 1950s. They still have their original acoustic wall tiles and linoleum floors, and the chairs and tables are bolted to the floor, making it difficult for students to work on their laptops."

"The average student graduates with about $65,000 in law school debts, he said." [I don't have the figures, so this MIGHT be right, but I'm graduating closer to 100K in debt. I mean if you divide that by 3, it doesn't even cover the fees we were charged, let alone cost of living]

"Over time it would give his law school significantly more funding than the other two UC law schools, at Davis and UCLA." [Bye bye Hastings. It was nice knowing you.]

"'Boalt is not Davis,' he said. 'Law is not nursing.'"

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The Catcher In The Hedge Fund

So, I'm reading _The Destruction of Young Lawyers_, by Douglas Litowitz, in-house counsel at a Chicago hedge fund and former Sonnenschein associate. The book has received some great blurbs from some notable nabobs of legal scholarship (Tushnet and Delgado) and a lot of coverage (positive and negative) at Legal Ethics Forum and elsewhere in the blogosphere. There are lots of good links and articles at the LEF post. I especially recommend Jeffery Lipshaw's (draft) review available on SSRN.

I think Litowitz's book has attracted attention for two basic reasons: 1) it is a colorfully written, absolutely uncompromising attack on the legal profession and 2) it purports to offer a "marxist" critique. That word tends to attract people's attention, in case regular N&B readers hadn't noticed. Sad to say, the book's approach is really not marxist at all. I don't have a lot to say about that, other than to observe that even in the world of neomarxist social critique, a handful of unrelated and basically off-hand quotations from Marcuse, Kierkegaard, Engels, Barthes and Ralph Nader don't add up to a critical apparatus.

I do think, though, that the book is something all of us should read--at least the first ten pages of. Not because it's right, and certainly not because it's thoughtful ("furious" would be more like it), but because I think it crystallizes a view that we as law students hear all the time about the profession we're about to enter: that lawyers are miserable, anxious, self-loathing substance-abusers; and that law school and law firms make them that way. Billable hourse, rigid hierarchies, angry senior associates who throw staplers at new lawyers, tedious, humiliating instruction in law school, professors who live for the thrill of getting off sarcastic one-liners at the expense of confused 1-Ls, the whole schtick.

I've heard this a lot since I starting thinking about going to law school, and I feel like I've been hearing it at an increasing pitch as I talk to classmates, friends, and others about getting ready to graduate. Although there are bits of truth caught up in this account, it is largely discordant with my actual experience and observations (admittedly for only a few months) working at a law firm, and completely discordant with my experience (for about two and a half years now) of attending law school. The reason I think the book is valuable is that it presents this dominant view in a sort of unintentional caricature--which offers an opportunity to hold it at a little bit of a distance and think about why people might believe it even if it isn't true. It's a pretty short book; I read the first two chapters last night. I thought I would make just a couple of points about those chapters, and then possibly post more as I read more.

Chapter One: "Unhappy Young Lawyers": It's a kind of angry, impressionistic pastiche of inaccurate factual premises (e.g. that virtually no lawyers are solo practitioners any more, that there's "no money" to be made in consumer-protection litigation), generalizations drawn from the author's dinner-table conversation, and bizarrely-footnoted (and in some cases completely unsupported) statistical claims. It's such a bleak description that on first blush it's pretty alarming, but it's so shrill that it rapidly burns through its own credibility.

Chapter Two: "The Trouble With Law School": Basically recounts the author's own unhappy experience, and asserts that this is how everyone feels. Litowitz writes: "I have never met a person who liked law school. Period." I believe him, but I think this speaks volumes about his methodology and the underlying motivation for his conclusions. He purports to have conducted a systematic study of acculturation into the legal profession, but he never came into contact with a single person who liked law school? Really? I like law school. I've been fortunate here at Boalt to encounter and spend time with many other people who do, too. Not that there aren't frustrations. Not that everything is perfect. And not that some people aren't obviously miserable. But come on! If Litowitz has never met a person who liked law school 1) his study was not nearly as systematic as he says, and 2) his own hatred for the experience has obviously shut him off from contact with people who enjoyed it. What kind of study is this? Second, and perhaps even more telling, is this generalization (and the parenthetical comment that animates it): "Deep down, the central fear of every law student (I felt it myself) is that they will be discovered as a fraud, a phony, someone who dresses the part but who knows nothing, who will be exposed at any moment, like a graduate of medical school who cannot take a pulse." Some measure of doubt is part of life, but I don't think Litowitz is in a position to say (as he basically does say) that everyone who goes to law school is paralyzed by this kind of fear.

My opinion: This is adult narcisism in the technical psychoanalytic sense. This is the distorted perception of a person who was traumatized, and who can only believe 1) that other people are just as unhappy as him deep down, and 2) that the source of their unhappiness is the same as his. Think of King Lear encountering mud-splattered Edgar, asking if Edgar's daughters had betrayed him, too:

"Dids't thou give all to thy two daughters?
And art thou come to this?"

One additional note. I actually agree with some of Litowitz's prescriptions for change. Law school instruction does have a pretty old-fashioned pedagogical model. I think his criticisms of the case method are wildly overblown, but I do think that more project-based, skills-based learning would be a great addition. I actually think legal education has changed somewhat in this regard since Litowitz went to school (Northwestern '88), in that lots of 2Ls and 3Ls do have the chance to do clinical work. His "comprehensive study" notwithstanding, he doesn't seem to notice this trend.

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Saturday, March 10, 2007


Well, my testing center was a complete circus, with everyone wandering around aimlessly trying to find the right room, since the ticket didn't even have the right building on it. Then the hidden classroom where the check-in was turned out to be too small to acommodate all the test-takers, so we waited around while they determined a room to use, which ended up being in an altogether new building. We weren't even close to starting on time. I guess there was no real harm done, but wouldn't it be better for morale if this thing were better organized?

Then the test itself...I'm not going to bring anything specific to light; I'll just say that I'm pissed at BarBri for representing the test as much easier than it turned out to be. In the BarBri practice tests, I was scoring 40+ out of 60. To my chagrin, the actual MPRE's questions turned out to be generally much more ambiguously worded, and much closer calls between the options given (to be honest, I felt like many were a coin flip). I had a similar experience with practice LSAT tests, so I guess I shouldn't be very surprised.

My main impression is that I am totally sick of taking tests. Unfortunately, the grandaddy of all of them looms large on the horizon.

Oh well, hopefully we all passed. (Supposedly it's a pretty low standard.) Feel free to vent or share anecdotes, but I ask that people avoid the "what did you get for question x?" types of inquiries. No good will come of it. If anything, it serves to make people even more insecure than they already are.


Wednesday, March 07, 2007

Original Meaning

I'm going to regret writing this post, but I just can't stand it any longer. There's been a lot of hooplah about HLS's student government circulating a survey about naming their small sections instead of using numbers. See, e.g., here and here.

This sounded very familiar to me. Lo and behold, I had the idea some two and a half years ago.

In my e-mail the Yahoo Groups Listserv, I also remarked, "P.S. I hate this numerical bull shit. I want the mods to have the Purple Monkey Dishwashers or Kwijibo (these are Simpsons references, so don't think I'm crazy...yet)."

Well one of the respondents remarked:

"Hopefully Mod 1 is doing a bit better in the numbers game now. Because that's all law school is: numbers. LSAT, which mod has the most replies, class rank, how many beers you can drink without appearing drunk, competition over starting salary, rank of law firm, how many hours you work, number of divorces, etc. Actually, it's all the bad parts of law school that are about numbers. Ok, now I support your idea of giving all of the modules real names. I'll try to think of one for what will soon be the mod formerly known as mod 1 and recommend it in class."

Man, I was one brilliant 1L.

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Gordleyian Knot

Leiter's reporting that Gordley is leaving Boalt for Tulane. Has anyone had him who can comment on the departure? I mean is this as depressing as when Bundy auditioned for the Hastings deanship or is it one of those, ding dong we can hire some young blood?

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Practice Question

1. Law student Lick Spittle and aspiring attorney Ass Aperture are scheduled to sit for the MPRE on Saturday. Spittle is wary of the profession's self-serving and anti-competitive guild structure. He feels that this structure shores up the high profits of those already in the profession but tends to deny needy persons access to legal services. Spittle thinks that this guild-like quality is reflected in both the structure and the content of the MPRE. Aperture is not troubled by the structure of the profession. His family long ago belonged to a 15th century weavers' guild in southeastern France, and he has always wanted to have a guild of his own. However, Aperture does regret the obvious institutional capture within the American Bar Association--which has blocked the promulgation of model rules governing the conduct of class action lawyers. Which of the following would be proper?

a) Bong hits in the parking lot of the Fremont Marriott prior to the test administration.
b) Lick Spittle affixes a 2 x 2 photo of adult video star Jenna Jameson to his "MPRE admission ticket" with transparent tape (no stapling).
c) Spittle and Aperture wear orange jumpsuits and black hoods to their respective test centers.
d) Aperture posts the following message on his blog: "I'm not in the profession yet, dickheads! Let's see you assert jurisdiction!"

Tuesday, March 06, 2007

MPRE and the Simpsons

To bolster one blogger's theory that the Simpsons is best enjoyed with full knowledge of the law, DS offers this post.

DS, being in the last throws of his MPRE studying, came across ABA Model Rule 7.1 which prohibits any type of communication about a lawyer or that lawyer's services which are "false or misleading." DS's mind went quickly to Bart trying to solicit Lionel Hutz's services. Bart, with a newspaper ad stating "Lionel Hutz, Esq. Works on contigency. No money down," approaches Hutz and this exchange ensues:

Hutz: All right gentleman. I will take your case. But I will require a thousand dollar retainer.
Bart: A thousand dollars. But your ad says "no money down".
Hutz: Oh, they got this all screwed up. [corrects ad with felt-marker to now read "Works on contingency? No. Money Down!]
Bart: So you don't work on a contingency basis?
Hutz: No, money down. Oops, I shouldn't have the Bar Association logo here either. [Hutz eats ad]

This is a blatant violation of ABA Model rule 7.1. Hutz issued a false ad thus luring Bart to his office with the hope of a no money down case. Hutz is subject to discipline. Chances this hypo will be on the MPRE this Saturday?

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Fall Guy Falls

Libby convicted on 4 of 5 count. See any news website for more.

From Legal Times, some juror feedback:

"We had tremendous sympathy" for Libby, Collins said. One juror said he didn't want to be judging Libby. "This sucks," Collins quoted the juror as saying.

"The belief of the jury was that he was tasked by the vice president to talk to reporters," Collins said.

So... the jury appears to have been ready to get Cheney for... something.

Putting aside the confusing mess that is the merits of the case, what should the sentence be? Libby was found guilty of obstruction of justice, two counts of perjruy, and one count of false statement of facts. According to the news, that's a maximum sentence of 25 years.

I pose to the comments thread: what is the right sentence? And where does the executive power to pardon fit in?

From what I've seen of the "harm" caused by the crimes proven, my instinct is that probation, maybe house arrest, would serve the interests of justice best.

UPDATE: Of course, Sentencing Law & Policy is already on the task. It's jail time for sure based on the guidelines, with a minimum looking like a year and a half. Judge Walton does have some discretion to play around within those guidelines. Based purely on his biography, it doesn't look good for Libby.

Also, I commend this article to those interested in this case.

UPDATE 2: WSJ on likelihood of pardon. The money line comes at the end:
"Defendants in similar situations are routinely allowed to remain free on bond while their appeals are pending. For Mr. Libby, that could delay the beginning of his sentence for months and push the need for a decision back to the end of Mr. Bush's tenure when a pardon would reduce the political fallout."


Monday, March 05, 2007

“They Are Fighting Science”

I thought the following NYT quotation from an Iraqi engineer and witness to today's book market bombing was both tragic and inspiring:

“Yesterday they killed the prophets and today they are killing the books. But hopefully the just, the science and the light will win. We’ll be patient until we achieve victory.”

I don't especially read (or intend) this as a political statement, but rather as a testament to the human capacity for hope and moral clarity in times of chaos and suffering.

Sunday, March 04, 2007

This Week in Boalt Briefs

While aimlessly searching through trash, I came across a few Boalt Briefs from my 1L year, you know, when they were actually funny. So occassionally, I'll post an item from an old BB. Here is this week's.
Incoming Briefs Editor Seeks Roommates/Co-Authors...

Believe it or not, the jackasses behind the Briefs are actually going to graduate, leaving behind a lone 1L to keep the flame for future generations of offended Boalties. Martine White, whose ass-baring antics and goofy grin propelled him to minor stardom, is holding a write-on to choose three "articstically talented but scholastically mediocre" students, who will help him write the Briefs and clean his bathroom.

Desireable qualities include being able to put up with: 1) his cheating at video games; 2) his unrelenting ethnic music; and 3) his vast quantities of pubic hair, left throughout the house like so many dust bunnies. Naturally, writing the Briefs and living with Marty entails a major time commitment, so applicants are encouraged to forsake other extracurricular activities, like CLR and dating.

Choose from three topics:

1. Interim Dean Edley
2. The best library chair at Boalt
3. Guilt from lying to admits.

Send your submissions to [].

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Friday, March 02, 2007

Judge Boggs Lay Unconscious on the Bar Room Tile

This year I completely forgot to post Chief Judge Danny Boggs' (CA6) clerkship quiz. You may access it here. I'm posting the answers I got below the fold. Remember, no researching.

Last year's quiz is here.


Thursday, March 01, 2007

Did anyone else feel that?

Strongest earthquake I've felt in a few years. Much bigger than our bump last spring... nowhere near Loma Prieta... check for updates here.

Bar Exam Info

Bar Exam information for the July 2007 test is available here. Here's what you need to know:

Deadline: April 2 (after this, there are progressively stiffer late fees)
Cost: $529
Laptop fee: $119
Bay Area testing sites: Oakland (writers); San Francisco (laptops); San Mateo (laptops).

No laptops in Oakland is a serious pain in my ass, because I would really prefer to stay at my own house, rather than a hotel. It is also in Fort Mason (?), which is not particularly easy to get to (see map here).

And $119 to use a computer!?!? Because it's MORE difficult for them when we use computers?

But what can you do? As mad j.d. and a certain roommate of mine love to say: It is what it is.