Monday, July 30, 2007

Riddle Wrapped Inside a Puzzle in an Enigma

I'm off to see the Churchill War Rooms and some other kickass W. European sites. Since Most of the action right now is with the rising 2Ls (ex 1L? Who the fu*k says that?), this is an open thread for all that's going on. CLR rejections, OCIP bids, etc.

Other classes, incoming 1Ls and 3Ls applying for clerkships or looking to explore the bay area now that you have nothing to do, are welcome to post here also to make the rising 2Ls even more miserable. Lot's of luck. I'd especially recommend reading this post by Disco Stu re OCIP.

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Friday, July 27, 2007

Predictions: Epilogue

I usually don't talk about tests after I take them, but since I made predictions about the Bar, I probably should revisit them. As it turns out, I have no business making predictions about the Bar. Hell, nobody does, because it is clear that they pick their questions in a completely haphazard way. All 6 MBE subjects?! WTF?! A murder-1st Amendment cross-over??? Yeah, that makes a ton of sense.

I can only imagine that they do it irrationally on purpose, just to keep Barbri (and snotty, know-it-all law students like me) guessing. Then again, I'm probably wrong about that too.

Regardless, congrats to all for being done. Now let us never speak of this again.

Update: I originally had "Prologue" in the title. My brain is fried.


In Defense of Cycling

I've been out of the loop for a while. When I talked to my mom last night, she informed me of the Tour de France news. I'm probably one of two Boalties who care. But, probably all have seen some portion of the news. Here's my take.

Michael Rasmussen wore the leader's yellow jersey and was kicked out of the tour this year while the race was going on.

Here are the facts, at least what I can gather of them. Rasmussen was supposed to be in Denmark having his blood tested by the Danish Cycling Federation in late-May and late-June. He claims he was in Mexico visiting his wife’s family, at least for the late-June part. A tour commentator stated, on-air I believe, that this tour commentator saw Rasmussen cycling in Italy in mid-June. This has not been proved. (Now, I hated evidence in law school and I certainly hated it on the bar, but I know that this commentator’s statement is hearsay not within any exception). Then the Danish cycling federation kicked Rasmussen off the Danish national team for failing to show up for these tests. His employer, Team Rabobank, decided to pull him out of the tour for these alleged lies as well, even though Rasmussen never missed one of their drug tests. Rasmussen has never tested positive for any drugs.

I don’t think Rasmussen should have been kicked out of the tour. Call me an old-fashioned innocent-until-proven-guilty kind of guy. But I’m willing to go along with his team's decision and I think it's probably best for the sport. For, as tour rider and American Christian Vande Velde said, “if his team doesn’t believe him anymore, then we shouldn’t either.”

What I really hate is American’s thinking Cycling is a corrupt sport because they hear riders are kicked out of competition all the time. Cycling has now adopted a guilty-until-proven-innocent system designed to cleanse the sport of dopers by taking a hard-line, an automatic two-year suspension from the sport. Americans think the sport is corrupt because of this hard line, and they bash cycling for it. Yet, American sports continue to turn their heads the other way and the public here thinks it’s the individuals and not the sports that are corrupt. In other words, baseball does nothing, so the public assumes it’s only the players like Bonds, Palmeiro, McGuire, Sosa, etc. that are to blame. Yet cycling kicks out anyone that doesn’t even report for a drug test, and everyone thinks the sport is corrupt. It doesn’t make sense and it’s really starting to piss me off.

That's my post-bar rant.

Thursday, July 26, 2007

3-and-a-half 'Doh!''s

The New York Post, normally a repository of B-list gossip, Page 6 extortion schemes, and rants about Hillary Clinton's socialism, has one of the most ingenious movie reviews I've read. Maybe the Simpsons should hire the writer full time.

(Anyone looking for 75% of the male graduating 3L class tonight should have an easy time of it...especially at 12:01 AM and especially after what they've been through.)

Anyway, this bar/CLR/classes/clerkship talk is getting depressing, so consider this an open "emerging from the deadness that is the California bar and/or CLR rejection and ready to enjoy my last 26 days of summer" thread.


Tuesday, July 24, 2007


As a lowly 1L, I wrote on De Novo about ExamSoft:

I wanted to draw a kickass bitmap discussing the benefits of adverse possession and insert it into the exam, but no such luck. After writing the 12th chapter on the injustices of current landlord-tenant laws, I wanted to insert a table of contents to aid the professor, but of course, you can do no such thing on ExamSoft (being the clever shrew that I am, I hand wrote one on a bluebook and turned it in separately. The said blue book also contained graphs hand-copied from MS Excel and the PowerPoint slides I would have liked to have created on "The Intersection of Non-Euclidean Geometry and Euclidian Zoning.")
The tongue-in-cheek stuff aside, the current crop of Boalties have no clue what ExamSoft is. At the time of my bitching, Phil Carter commented:


Sorry to break the news to you...

The California bar exam, and many other bar exams, use Examsoft too. As we used to say in the Army, "embrace the suck", because you're going to have it for a while.

I had ALMOST forgotten how much I hate this thing. Anyway, apparently if you have gmail they are having issues with the confirmation e-mails. Log in at and you can check to see if the files were received. I changed my status back to my @berkeley account (which forwards to gmail).

Of course I replied to Phil that I prefer "SNAFU" much more. I stand by my assertion.

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Monday, July 23, 2007

Dear God

Sorry to disturb you
But I feel that I should be heard loud and clear1
I flew down to Ontario2 today. I got to Oakland a bit early so I figured I'd ask about the 4:15 flight because I'm not checking anything in. I start looking for my Driver License3, but it's nowhere to be found. Just then I hear the loud speaker lady (the one who says you can't leave your luggage unattended) say, "Mr. Armen Adazahamenayan please dial the operator from a white airport courtesy phone." I dial, turns out my DL is with the Alameda Sheriff's Deputy at the metal detectors. Great. I can enter the bar exam. I go to get it. Before he gives it to me, he runs a quick warrant search.4

I get on the early flight and get to Ontario. At the enterprise counter, the lady tells me she decided against law school because as a bank teller, all the lawyers who used the bank told her the profession is not family friendly. I still don't know what to make of it, I just found it a bit awkward.

At the hotel, they said that my reservation has been canceled.5 There was maybe 3 minutes when I felt like throwing a shitstorm, but I just remained calm and tragic. The manager found a regular room for me and even charged me the normal rate for the room (less than the suite I had reserved).

So, what adventures await us during the bar exam?6

1 Dear God, by XTC.

2 Not Ontario, Canada. Several Boalties have asked, "Why are you going to Canada for the bar?" On the flight, a mother was traveling with her two children. The young son stopped the flight attendant and asked, "Where are we going?" The flight attendant politely replied, "Ontario, then Phoenix, then Chicago." The kid began crying, "BUT I DON'T WANT TO GO TO CANADA!!"

3 In California this document is a Driver License, not Driver's License.

4 Can you say issue spotting? Plain view? No privacy interest? Probable cause? Airport search exception? Armen's bar beard is enough to rouse anyone's suspicion?

5 Offer? Check. Acceptance? Check and check. Consideration? More than mere peppercorns. Luckily these were only internal thoughts and I never resorted to hitting them with my bar/bri...both physically and metaphorically. See, assault.

6 Not to freak anyone out, but a former co-worker of mine took the bar last year on a Fujitsu. She qualified for ExamSoft and all, but then on the day of, ExamSoft did not work. She had to write the whole bar exam. Turns out Fujitsus have some loophole where they pass all the tests for ExamSoft but don't work on the actual thing. She passed.


Sunday, July 22, 2007

Terms of Encouragement

The time draws near. I thought some guidance would be appropriate, but in what style? Something like Churchill's defiant beaches speech? FDR's admonition about fear? It occurred to me: the most appropriate guidance for Boalt students would come from that sage old salt, two-time skipper of the Cleveland Steamers, Jesse Jacobsen. In his style, I dedicate these words to all Boalt exam takers of the summer of 2007, including one Mr. Bundy and my appellate mentor, TL:

"Ok guys. Go out there. It's a pretty hard test. Actually, it's a test that's tougher than we are. We probably can't beat it, but I guess we should try to make it look respectable. Riley, no cursing after you popup a softball question. Armen, we'll have a towel waiting at the end of the first morning's essays. Glasser, you're too old to take this exam. Martin, you're a bar exam cancer and you're bringing everyone down. Beat it."

"I mean, think about it guys. This is a test that humbled the dean of Stanford. So don't take it too personally. Now bring it in, and let's steam it up."


I strove for authenticity. Feel free to suggest additions or corrections in the comments.

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Friday, July 20, 2007


I was just thinking about how Sakai wussed out on making predictions this year, and so I wanted to put up a predictions post. Some commenters got it started already in the previous post.

It goes without saying none of this is a guarantee or a promise. In fact, if you are planning on relying on a random blog posting for your last-minute Bar study, you are probably already up shit creek. Actually, you have already passed through the creek and are now in shit-water rapids, with shit Niagara Falls directly in front of you.

With that said, here's my order for the MBE subjects and multistate, from most likely to least likely, with a short explanation. Offer your own predictions, or check back in a week and mock me for getting it ass backwards.

1) Evidence--they added CA law this year; it's only been tested 1 out of the last 3 (F07), and they have often tested it several years in a row. Look for something with a California distinction, and be sure to mention Prop 8, even if it's totally irrelevant to the question.
2) Crim Pro: Only 2 out of the last 5 years, albeit in F07. But that was a straight crim law question. Look out for a crim pro question this time around.
3) Torts: They have not been testing this as much recently.
4) Con Law: They never go more than 1 exam without testing Con Law, and they have tested it on the previous two. BUT, both were 1st Amendment questions. So if there is Con Law, expect it to be something else.
5) Contracts: This wasn't on F07, but it was on the previous FIVE exams. They have often skipped this on two exams or more in a row.
6) Property: This has been on the exam 4 out of the last 5 exams.

A couple notes: You always get at least 1 of Torts, Property, and Contracts. I also noticed that whenever there is Remedies (which is almost always), there is either Contracts or Torts, which makes sense, so expect one of those two, I think.

Multistate (note: I'm not bothering to include professional responsibility or remedies)
1) Community Property: Only 2 out of the last 6 years, and not the past two exams. Plus I HATE this subject, so it will definitely be on there.
2) Civ Pro: Added California, and has only been on there 1 time in 6 exams.
3) Wills & Trusts: One of these is almost always on there, usually as a cross-over. Trusts is more likely, as Wills was on F07. Maybe a cross-over with community property?
4) Corps & A/P: Has been on 4 of the past 5, despite not being tested heavily prior to that. A/P is a wild card, no way to know with it--here's a guess that it's a cross-over with Torts, if it's there.

So, I am fearlessly predicting: 1) Civ Pro, 2) Community Property, 3) Crim Pro, 4) Evidence, and 5) Torts. Not sure about the sixth one, but I predict Trusts, Remedies, and Professional Responsibility to be on there, as cross-overs or their own questions.


I'm the law-talking guy

But, it was all made better by this poster my brother just sent me.

So, I hope this will renew the post. I'm with Armen. Fee-hikes schmee hikes. Prices always go up. Deal with it. Boalt's class of 2013 will look back on us with the same envy which we look back on the class of 2001.

Also, I just got back from scouting the San Mateo expo center if anyone cares. I had to drop the fiancee off at the airport (her bachlorette party is this weekend). From SFO it was an easy trip to see where the Crown Plaza is located, how long it takes to drive to San Mateo, and where I can pick up some breakfast and lunch on the way there. I'm more comfortable now, and I won't be surprised by anything come Tuesday morning, except, I suppose, that Con Law is the subject of essay one.

Looks like parking at the expo cetner is $7/day for those interested.

Armen, you missed the conviser-mini review charts next to the poster. I think it was evidence and crim pro.


Fee Hike Absolute

Blah Blah Blah fee hikes. After three years, I just can't feign interest. Honestly, can DS bump the Lionel Hutz thread?


Post-Bar To-Do List

In a shameless ripoff another Boalt blogger, I present a list of things I intend to do post-bar, in no particular order. The comprehensive list at Cause and Defect is better (and obviously more original) than my own. Next week can’t come soon enough.
  1. Spend Macy’s gift cards that are last vestige of “free LexisNexis” halcyon days.
  2. Read something with pictures in it.
  3. See Simpsons movie; rekindle old love; vow to stage “favorite episodes” marathon; never actually do it.
  4. Wake up in cold sweat, panicky about forgetting “cy pres” doctrine; realize it will never matter again; take deep breath.
  5. Watch Nancy Grace; work self into angry fervor; despair at prospect of her procreation.
  6. Bask in sun at Lake Tahoe; try not to think about easements in gross.
  7. Stop obsessively reading “contracts” entered into with parking garages by pushing green button.
  8. Watch ‘Entourage’ DVDs; try not to compare own career arc to that of Vincent Chase.
  9. Begin “dry clean” era of laundering everyday wardrobe; ruefully watch jeans collection gather dust.
  10. Let email account expire; kick self for not copying address book in time.
  11. Witness advent of David Beckham era of American soccer; try not to compare own career arc to that of Becks.
  12. Try to come up with use for self-made Bar/Bri flash cards; realize there is none; chuck in trash; fall to knees; scramble to collect scattered, soiled cards from trash in contingency for crippling bad news in November.
  13. Listen to new(ish) albums by Interpol, T.I., White Stripes; pretend I was down from day one.
  14. “I do love scotch. Scotchy-scotch-scotch. Theeeeere it goes, down into my belly.”
  15. Watch ‘Bronx is Burning;’ revel in idle disappointment.
  16. Order diploma from school; receive diploma; let diploma collect dust on office floor as it waits to be hung up.
  17. Consider skipping country to dodge payment of student loans; reconsider, given poor quality of public restrooms abroad.
  18. Pass by dreadlocked-beard-guy sitting on sidewalk one final time; pretend to be happy to never see him again; walk away stoically as single tear rolls down cheek.
  19. “Conviser Mini-Review, meet Mr. Bonfire.”
  20. Play. Station. 3.

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Thursday, July 19, 2007

Extra Credit

At ten o’clock one morning on Telegraph Avenue, Dirty was reclining against the roll-down steel fencing in front of the empty Rexall store-front. Dirty was minding his own business, cleaning his toenails with a fragment of broken glass and muttering about helicopters. Suddenly, Pisser came down the street, leaned face-forward against the fencing, and began to urinate onto the windowframe. “Hey, what the fuck are you doing,” demanded Dirty!

“I have to piss somewhere,” replied Pisser, “I live on the street.”

“I live on the street, too, asshole,” exclaimed Dirty, “and I’m trying to sit right here.” Pisser ignored him. “Oh my God, you really are one fucking disgusting individual,” Dirty said, when Pisser had finished. If Pisser sues Dirty for defamation, which of the following is MOST probable?

A. Pisser recovers nothing, because public urination is a matter of public concern.

B. Pisser recovers nothing, because by the time Mayor Bates and his Stalinist goons finish flushing our rights down the toilet, you’d damned-well better believe that Pisser’s conduct will constitute negligence per se.

C. Pisser need not prove special damages, because Dirty’s defamatory statements concern Pisser’s trade or business.

D. The doctrine of unclean hands.


Wednesday, July 18, 2007

Slate Sneers at Simpson (and gets everything wrong)

Daniel Gross at Slate is one of my favorite writers about money and business. But in his latest column, he takes a huge swing at Simpson Thacher’s “Chow for Charity” program and misses worse than a 0L trying to answer a question in crim pro.

To recap, Simpson’s “Chow for Charity” allows summers to take a lunch for less than $15 and have the firm donate the difference between that price and the $60 per-person allowance to charity. Sounds a little odd, yeah. Sounds a little elitist, yeah. But it’s real money going to real people -- and in an attempt to paint it otherwise, Gross trips all over himself. Let’s go to the tape:

How does this small piece neatly encapsulate several important trends?

A Touch of Conscience. These days, any company that markets to or needs to hire well-educated proto-yuppies must take bold action on topics of concern ranging from global warming to poverty. Or, if it doesn't actually want to take the action, it must at least appear to be concerned. Doing good isn't a serious commitment or an end in itself. Rather, it's an ornament, like a wall sconce, that makes consumers or employees feel good about themselves and the company. The Times paraphrases a recruiter who notes that such efforts "are part of an emerging trend to add a touch of social conscience to lavish recruiting practices for top students in a competitive market." The greatest desideratum of firms is to undertake publicity-generating good works that don't require them to spend extra money or change the way they do business. Buy some renewable energy, by all means, but continue to maintain that fleet of corporate jets. Chow for Charity is a perfect case, since it doesn't cost the firm a dime.

Uh, small point Bob, but that last sentence is sort of completely wrong. The mistake is concluding that, without this program, the firm is otherwise spending $60 per associate per lunch per day. Maybe the swag skills of New York summers are without parallel, but at my firm, we rarely hit the budget. Sometimes lunch is $10/person, sometimes $25, rarely $40 or more. I’d bet it’s the same at Simpson. So, if 4 Simpson associates we’re going to spend $120 on the tab, but opt for $50 total instead, that’s a $190 check to legal aid—and twice as much total cash out of the firm’s pocket as it would have spent if the associates had stuck to the $120 lunch. It’s a small point, but when you sneer that “Chow for Charity is a perfect case, since it doesn’t cost the firm a dime,” you should probably have a factual basis for your statement.

The New Gilded Age. This is a golden age for corporations, and for the professional firms that service them, such as Simpson Thacher. According to the American Lawyer, Simpson racked up profits of $2.5 million per partner in 2006. (Given that, loudly trumpeting a program that generates about $50,000 in charitable donations seems a little gauche.) But this style of philanthropy neatly encapsulates the frequent obliviousness of the very rich, and of the publications that cater to them, to the nation's glaring income inequality. (Last week, the New York Times ran largely unironic articles about $60,000 beds and $225,000 parking spots.) Only in this new gilded age could a $15 lunch for a 23-year-old student be seen as a self-abnegating act. I can assure you that it is quite easy to gorge yourself on excellent food in New York for $15—a fine all-you-can-eat Indian buffet, a sublime pastrami sandwich from Katz's Deli, four street-side schawarmas. And plenty of New Yorkers would be thrilled to have $15 a day to spend on food. In the recent congressional food stamp challenge, several solons tried, without much success, to live for a week on the average food stamp budget: $3 a day.

Hey, no argument here about the new Gilded Age. I say tax-and-spend, tax-and-spend! (I’ll be looking to count on Gross’s vote for Obama come 2008, as he is clearly concerned with this issue.) But did Simpson really hold this out as a “self-abnegating” act? Yeah, $60 for lunch is absurd. But the truth is, if the company spends any less on lunch for any reason, it’ll be subject to a recruiting massacre on ATL and other blogs for “skimping” and “cheating its summers” and not “keeping up with the other firms.” So Simpson has found a clever way to ratchet down the pressure for high-flying lunches, all the while giving more money to charity than would otherwise go to Masa on a typical day. And this somehow makes it “gauche”? Which leads to the grand-daddy point of all...

Defining Public Service Down. For more and more of us, public service is something that other people do—other people with lower incomes, smaller apartments, and less nice stuff. (For the Iraq war version of this trend, see National Review columnist Jonah Goldberg.) The Times article quotes a recruiter who says law firms do this sort of charity because their recruits are really interested in community work. Now, law school is very expensive, and students take on large sums of debt to pay for it. So it may well be that many of Simpson Thacher's summer associates are just working there for the summer so they can go toil as community organizers upon graduation without excessive debt loads. But most are there because law firms such as Simpson pay massive salaries ($160,000 to start) and provide entree to even more-lucrative gigs at consulting firms, private-equity firms, and investment banks. Today, thanks to the benevolence of Simpson Thacher, you can pursue community work by taking your lunch at Pret a Manger instead of Le Bernardin.

You know how else summers, associates, and partner “pursue community work?” By working for free for poor people and non-profits. It’s simply amazing that someone could write an article about law firms and charitable giving and fail to mention the words “pro bono.” Does Gross not have any lawyer friends? As we all know, pro bono is the major “community work” law firms do and, last year, according to their website, Simpson attorneys did over 50,000 hours of it. That’s not “something other people do,” that’s not “an ornament” or emblematic of the firm’s “frequent obliviousness.” That’s about 70 hours of billable per attorney (730 of them), or roughly 3% of their work (updated--thanks Tom). Put another way, if we assume an average Simpson billable of $400 for all attorneys (which has got to be low), that’s $20 million in donated value for the year. That’s not too shabby.

But wait, there’s more! Let’s contrast that with Wal-Mart, which is one of the leading corporate contributors in the country. Last year, Wal-Mart gave away $270 million in cash. Which is pretty good – but this is for a company with revenues of $340 billion.

Also consider that when Simpson does pro bono work, that comes directly out of the partners’ pockets (and eventually the associates’ too). An hour spent doing pro bono is an hour spent not billing. But it’s laughable to think that Wal-Mart’s management spends 5% of their time helping small businesses, or Chevron’s board spends 5% of their time building houses. And Wal-Mart’s charitable giving doesn’t come out of their executives’ salaries. Instead, it’s spread over all the shareholders. Put another way, with 4.2 billion outstanding shares, Wal-Mart’s charitable giving of $270 million adds up to 6 cents a share. Think of that as money that the company could otherwise add to its 88 cent dividend.

Now, last year, the #4 exec at Wal-Mart got 80,000 shares, meaning the 6 cents a share “lost” to charity cost him...$4,500. Talk about self-abnegating! Meanwhile, a Simpson partner who spent 5% of his time on pro bono cost himself about 10 times that. But mentioning pro bono would ruin the entire premise of Gross’s article, which is how “fake” and “out of touch” law firms are in pretending to do community work.

Summer associates are already a great deal for law firms—their hours are billed out to clients at hourly rates of between $200 and $300, but the firms don't have to pay any benefits.

What is he talking about? The firms don’t bill out our time – they write 85% of it off. And summer associates cost them money until they’re 1st or 2nd years. If Gross wants to uncover nefarious financial conspiracies, he should spend more time reporting on the Bush administration.

Translation: It's a double-winner when kids pick the cheap meals over leisurely lunches...Senior lawyers don't have to spend as much time feigning interest in the ambitions of 23-year-olds...

Finally, FINALLY Gross gets something right. No argument here.

MDemonic Devices

Do you have good mnemonic devices? Share your witty brilliance with the procrastinators reading this blog. No need for a mnemonic dump...but if you have a couple that are particularly clever, or particularly helpful, please share. Here's a couple of my favorites to get started:

1. without due process, Inevitably Another Guantanamo (due process requirements): 1) Individual Interest; 2) Ability of Additional procedures to increase Accuracy; 3) Government interest

2. R-MEN (for plea ceremony): 1) Right to plead not guilty; 2) Maximum/minimum penalties; 3) Elements of crime; 4) Nature of charges

3. Conviser Is a MotherFucking Douchebag (for specific performance): 1) Contract terms are definite/certain; 2) Inadequacy of legal remedy; 3) Mutuality; 4) Feasibility of enforcement; 5) Defenses

What else you got?


Michael Vick and the Bar Exam

Just heard on PTI:

"The seriousness arises out of the conspiracy charge. A conspiracy is an agreement. The government has to prove that there was an agreement and one act in furtherance of the agreement. And then all co-conspirators are held liable for each other's actions. So even if Vick wasn't at the dog fight or he didn't kill a dog, he would be responsible for the actions of another co-conspirator. Very, very serious."

After hearing that I had a little impropmtu crim law review session by thinking to myself, the gov't must also show an intent to enter the agreement and that Vick is only liable for those actions that are both reasonable and foreseeable and in furtherance of the conspiracy.

And I thought by watching a little TV I could escape the bar.


Tuesday, July 17, 2007

Good Riddance Berkeley

I'm sorry for the incoming students, but I'll be happy to leave this town. The people exhaust me, and they make me loathe to ever move back here. For example, the Chronicle reports this chilling (pun) story today. The Berkeley Iceland, closed because it is unsafe, was in the process of being sold so it could become a Headstart preschool. Against the owner and future owners' wishes, a group of Berkeley citizens convinced the City Council to make it a "historical landmark," preventing any part of the building from being torn down.

The owners proposed saving the facade, but converting the rest of the building to its new use. No dice. The City Council instead adopted the most stringent designation preventing any structural changes, mind you, to a building already deemed insafe.

Get ready for the kicker: "A building's interior and use cannot be considered in landmark proceedings, so Iceland advocates focused on the structure's architectural flourishes and history." But the facade wasn't enough. And why not? "It was built in 1940 to fill a great need in the community for recreation and entertainment, and we believe that need still exists," said Elizabeth Grassetti, who co-filed Iceland's landmark application.

So, the community group feels an ice rink is still necessary, even though the owners appear more than ready to exit the business for more profitable ventures. But recall, the landmark designation law doesn't allow the inside use of a building to be considered. So the application filer essentially concedes that the "architectural" virtues of the building are a sham.

But wait, for there's more. The article ends: "Save Berkeley Iceland was one of five bidders for the property after it closed in March. Rickles said the group's bid was the lowest. Because the building has been landmarked in its entirety, the current sale could crumble and the building's value will significantly fall." Thanks to a sham landmark designation, the only bidder left will be... Save Berkeley Iceland. Why pay what the market demands when you can abuse city government?

I wish this had been an isolated incident over the three years I've lived here, but it's not. Ask yourself what happened to CLIF Bar and where the Trader Joe's on University Ave. is. I didn't come to Berkeley an acolyte of limited government, but I leave a convert (for many reasons), but in part by seeing the rampant abuse of power and disrespect for individuals propogated by the city government here.


More on Save Berkeley Iceland.


You may also remember Berkeley Iceland from this case. The Chronicle article on the settlement is here, and a longer article is here. The value of the settlement to me looks a lot less than the cost of ltiigation, but then it may also have been that the plaintiffs were happy to trade damages for injunctive relief and donations to their lawyers (an aspect of the settlement curiously not noted in the NCLR press release but in the Chronicle article. [UPDATE: This is not true. A "donation" is mentioned in the press release. My lazy reading missed it.]). I remember when the case happened, and it still looks funny to me.

Anyway, between the civil rights litigation and the historic landmark designation, I wouldn't fault the Zamboni family for wanting to get out of Berkeley either.

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What's Infuriating About Bar Review?

The comments have recently aimed their ire at professors at Boalt who did not cover certain topics on the bar. That may not be so bad.

i was just doing some drill Con Law questions, when a state advisory opinion question comes along. The state Supreme Court decides the advisory question and one side wants to appeal. What should the Supreme Court do?

I got excited. I remember this day of Federal Courts. i reread the fact pattern looking at the decision and decided "B - Accept the case and reverse." I literally bellowed when checking my answers. BarBri suggests "A - refuse to hear the case because there is no case or controversy."

I was shocked. Did I forget what I learned in my favorite class so quickly?

No. See ASARCO Inc. v. Kadish, 490 U.S. 605 (1989). You can also read Hart & Wechsler, pp. 138-40.

Going over my other con law answers, I've been annoyed at times when I feel that they don't quite line up with my understanding of constitutional law. But I finally did the digging to prove that at least one was straight up wrong. But mostly what upsets me is - how can you test with multiple choice in an area with so little case law that calling a position "black letter" is dubious at best? ASARCO has a stinging dissent, and who knows what would happen if it were heard again. I can understand multiple choice testing the restatement, but this point of Article III federal courts practice is a) arcane and b) uncertain.

Grr. But for those asking about good classes to take, Fletcher's Federal Courts is excellent, even at 8:30.

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Monday, July 16, 2007

Unclassy Classes

Open thread about classes and related issues for 1, 2, and 3Ls, per request.

-- Incoming Boalties: "So, like, do I have to like know everything about everything?"

-- Rising 2Ls: "CLR, CLR, CLR, CLR, CLR..."

-- Rising 3Ls: "We're all top 10%."

OK, this is not at all funny.

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Model Bar Exam Answers

There's nothing clever about this post. I'm simply going to quote a sentence from a model answer to a con law essay question posted on the bar exam's website (Q5 from Feb. 03, p. 44 of the pdf, bottom of para. 2):
Arguably, his ability to indicate his claim is a vested property right, which was undeniably denied by the commissioner.
This was part of a model answer. Now if only I can get half as many issues as this moron.


Friday, July 13, 2007

Outrageous Data Illiteracy

The Wall Street Journal has an opinion piece on corporate tax rates, national tax revenue and the Laffer Curve. Accompanying this editorial is the following authoritative graphic:

Wow, I guess we better change our tax rate.


Wait a second, doesn't that fit line look a little suspicious? Like, maybe it fits too well? Or maybe it's been pulled up by Norway? Or maybe there isn't even a statistically significant line to report? By eyeballing the data off the chart, I ran a binomial fit and got these results:

To the extent there is a parabolic fit to this data, it's not what the WSJ shows. It's a much lower curve with an R2 of less than 0.2, meaning it predicts at most 20% of the variance in tax revenue based on tax rate. Other factors account for more than 80%. This fit did better than the linear regression, which fails to produce a statistically significant linear relationship.

So, perhaps the data shows a binomial trend. Maybe there is a Laffer Curve. But it is not the curve the Journal drew in the paper. The editorial does not describe how it derived its impressive graph, but I'm highly skeptical it involved any more math than "let's draw the curve we want to support our policy hypothesis."

It reminds me of undergrad, when we crunched decades of national data to find the "Phillips Curve," the legendary tradeoff between unemployment and inflation. Like the Laffer Curve, it sounds very sensible at the end points. Phillips suggested that high unemployment means low inflation (no need to pay higher wages to hire more employees) and if there were low unemployment, there would be high inflation (must pay increasingly higher wages to get employees away from old jobs). Laffer suggested that if there were no taxes, there'd be no revenue and if there were 100% taxes, there'd be no revenue; therefore, there is a revenue optimizing sweet spot. Anyway, long expose, short point: we crunched all the Phillips data and found no statistical relationship. None.

These macroeconomic concepts make fuzzy sense, but a lot of macroeconomics starts breaking down on close analysis. And yet - in California's one required high school semester of economics, we teach macroeconomics, not microeconomics.

Last thread of the rant: newspapers only get away with publishing wildly misleading graphs because people accept them without scrutinizing the details. Sadly, people don't trust a newspaper's ability to report facts (which its reporters have a specialty in), but will then take their graphs on faith. Don't. For more on accurate data presentation, I present all things Tufte.

Back to regularly scheduled studying.

PS: I have to add the caveat: the corporate tax rate is incredibly stupid and should be abolished. But not because of "the Laffer curve." Because it leads to double taxation and inefficient cost distribution. For more, take Rakowski's Income Tax (which there are many good reasons to do).

DISCLAIMER: Yes, the Laffer Curve does not have to be parabolic. It could be any curve with a maximum between (0, 100). I used a parabola because I wanted a curve that fit the data in a statistically meaningful way. The stark difference between my graph and the Journal graph to me suggests that there is no mathematical basis for the curve they drew. Why does it top out at Norway? Maybe it can go higher! Much higher! My point being: without a mathematical model to justify the curve you draw around the points, there's no basis for suggesting it would have such a steep slope just to the left of where America is now.

Thursday, July 12, 2007

The 4th Estate

Maybe it's because I've been parsing MBE questions all afternoon, but the opening paragraph of this Reuters article made me titter.
BAGHDAD (Reuters) - Thieves have stolen nearly $300 million from a bank in Baghdad, police and a bank official said Thursday, in what is probably one of the biggest thefts in Iraq since the 2003 war to topple Saddam Hussein.
Tell us how you really feel, Reuters journalist!

Not Surprised

UPDATE: I just received this email from the City Attorney's Office. Thank you Oakland!

City of Oakland Goes to Court to Get Trash Picked Up

Oakland, CA – Today, Oakland City Attorney John Russo filed an injunction with the Alameda County Superior Court to compel Waste Management of Alameda County (WMAC) to perform its duties under its contract with the city and pick-up garbage, recycling and yard waste bins (RG 07335086).

“We are entirely within our contract rights and California state law to demand this health and safety issue be addressed immediately,” said Oakland City Attorney John Russo. “We have a duty to protect Oakland’s people and businesses. This situation has gone on long enough.”

Since the July 1st lock-out by WMAC and the subsequent pile up of trash, recycling and food waste scraps in various neighborhoods, more than 1,000 emails and phone calls have been made to the City of Oakland’s recycling hotline.

“We've expressed our genuine desire to help mediate this matter. It is our sincere hope and desire that this matter is resolved expeditiously,” said Oakland Mayor Ron Dellums. “Oakland residents, as well as Alameda County residents, deserve to know the garbage pick up will go forward in an uninterrupted manner. In an urban environment where disease can spread quickly, we ask that both parties resolve these issues now.”

"The garbage is piling up in our neighborhoods, and as a City we have the responsibility to protect the health and safety of our residents, " said Council President Ignacio De La Fuente. “We have to do whatever it takes to ensure that Waste Management complies with their contract."

The City of Oakland contracts with Waste Management because it does not have the facilities, trucks or staff to pick-up, sort or manage trash.

Waste Management informed city officials on July 2nd of a lock-out of Local 70 employees due to concerns about service disruption from the union’s alleged threat to strike. The following day the City issued a Notice of Violation of Franchise Agreement demanding garbage collection duties resume regardless of WMAC’s employee/management issues. After ten days and many formal and informal talks to resolve the problem, the City of Oakland is seeking relief through the courts.


The San Francisco Chronicle updates on the garbage strike here. Call me unsurprised that pickups have proceeded normally in well-to-do parts of Alameda County while garbage is rotting in the poorer parts. We've had one pickup since the strike here at 63rd and Telegraph and the trash was picked up normally (this was last Friday). I'm curious/nervous to see if anyone comes this Friday. I remember two years ago, WM would skip us, and I'd call every day from work, getting a promise that they'd come "the next day" and then not getting our trash picked up until the next week's pickup day.

So, it's business (or lack thereof) as usual from WM. I'd been impressed by their regularity since that summer two years ago, but this is despicable. A preemptive lockout that leaves thousands of people surrounded by stench (and likely worse as vermin breed) is low. I'm reminded of a sermon on the ethics of capitalism, and that what makes it wonderful (and ethical) is the voluntary drive to improve the lives of others. Congratulations WM, you're failing to improve the lives of the people you have chosen (by contract with the city) to serve.

Feel free to use the comments to report on pickups or failures. I'm also happy to hear a general rant about WM. I'm most curious to help the City Attorney's office draft the complaint for breach of contract, with bonus points for articulating a theory that imposes punitive damages despite the contract nature of the action; I'd want to finesse some tort concept of duty to maintain the public health voluntarily assumed by contract (similar to voluntary assumption of rescue) and then reckless breach of the duty. Given that tomorrow morning is my "learn contract remedies day" this works out pretty well.

PS: Here's the City Attorney's page. You can send them email. Mine was pretty straightforward, more or less "please sue WM."

Bar Study Soundtrack

I haven’t had time to listen to music lately, but I thought I'd compile a list of music I would listen to this summer if I did have time. I know: lists are cheesy and uncreative, but since my own creativity is totally stifled, I'll let the words of others speak for me. I’ve tried to select songs with descriptive titles because, you know, who has time to actually listen…

The Ponys – Let’s Kill Ourselves
Rage Against the Machine – Bullet in the Head
Deftones – My Own Summer (Shove It)
The Damned – Alone Again Or…
The Pixies – Where is My Mind?
Bad Religion – Suffer
Radiohead – We Suck Young Blood
Rolling Stones – 19th Nervous Breakdown
Jay-Z – 99 Problems
Nine Black Alps – Shot Down
Modest Mouse – Alone Down There
Mission of Burma – Heart of Darkness
Operation Ivy – Jaded
Joy Division – Isolation
Joy Division – In a Lonely Place
Pink Floyd – Brain Damage
Jay-Z – Hard Knock Life
Johnny Cash – Ring of Fire
Tricky – Hell is Round the Corner
Guns n’ Roses – Right Next Door to Hell
The Clash – Straight to Hell
Colder – Burnt Out
Wrens – Destruction-Drawn
The Clash – Hateful
The Cure – Doubt
Placebo – The Bitter End
Bad Religion – Fuck Armageddon… This is Hell

I think this compilation pretty much sums up my summer, but feel free to add other titles that would flesh out the list or convey your own experiences.


Tuesday, July 10, 2007

Through the Looking Glass

According to The Recorder and WSJ Law Blog, the Bar/Bri antitrust settlement has now received final approval, but under very strange circumstances. Specifically, the court (C.D. Cal, Real, J.) rejected proposed incentive payments to the representative plaintiffs on the grounds that the representatives had conflicts of interest. The proposed payments were huge ($25,000 to some reps, $75,000 to others) and the court has lots of discretion to reduce or refuse such payments. However, if the reps had conflicts, it seems to me that the proper remedy was to decertify the class. Also, The Recorder quotes one of the plaintiffs as saying that the judge basically instructed class representatives and their lawyers to work out incentive payments among themselves. I don’t think that would be appropriate. In fact, I think it’s a lot like the conduct that Millberg Weiss is under indictment for.

I’ll be fascinated to see what, if anything, happens next. What we presently have, essentially, is a class settlement approval order expressly finding that one of the requirements for class certification (adequacy of representation) is not met. See FRCP 23(a).

PRE-UPDATE: I'm really supposed to be doing a set of intermediate con law questions, so I haven't read the actual order yet. I'll post again if it helps make more sense of this situation.

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Monday, July 09, 2007

On Consequences

The New York Times has this important article. If you don't read the whole thing, here are four passages I think are worth special attention:

Hoshyar Zebari, the foreign minister, sounded a similar warning at a Baghdad news conference on Monday. “The dangers vary from civil war to dividing the country or maybe to regional wars,” he said, referring to an American withdrawal. “In our estimation the danger is huge. Until the Iraqi forces and institutions complete their readiness, there is a responsibility on the U.S. and other countries to stand by the Iraqi government and the Iraqi people to help build up their capabilities.”


On the potential for worsening violence after an American withdrawal from Iraq, he said: “You have to look at what the consequences would be, and you look at those who say we could have bases elsewhere in the country. Well yes, we could, but we would have the prospect of American forces looking on while civilians by the thousands were slaughtered. Not a pretty prospect.”

In setting out what he called “the kind of things you have to think about” ahead of an American troop withdrawal, the ambassador cited several possibilities. He said these included a resurgence by the insurgent group Al Qaeda in Mesopotamia, which he said had been “pretty hard-pressed of late” by the additional 30,000 troops Mr. Bush ordered deployed here this year; the risk that Iraq’s 350,000-strong security forces would “completely collapse” under sectarian pressures, disintegrating into militias; and the specter of interference in the chaos by Iran, neighboring Sunni Arab states and Turkey.


Mr. Zebari, Iraq’s foreign minister, said Monday that neighboring Turkey had massed 140,000 troops near his country’s northern border and urged it to resolve differences with dialogue, not through force. . . . A spokesman for the Turkish military said it had no comment on the reported troop movement.

As Congress gears up for debate on this issue, I think we should all consider what would happen next if America abandoned Iraq. (for an excellent film eerily similar to this, see "Three Kings")

Friday, July 06, 2007

I'll Show You Inanimate

Once again I'm not studying for the bar, but instead I'm reading this great article on The Simpsons (the movie comes out the day after the bar). Related to the article, Vanity Fair has its list of the Top 10 Simpsons episodes. Now, the list is VERY well informed. These guys did their homework. So I'm not going to question it. Instead, I'm opening this up for commentary on YOUR top 10, 5, 3, 1 episode(s). There is one requirement. You need a quote from each. Personally, I'm listing episodes not on the VF top 10. You're free to do otherwise.

3. Deep Space Homer

Mr. Burns at monthly worker of the week meeting: "Compadres, it is imperative that we crush the freedom fighters before the start of the rainy season. And remember, a shiny new donkey for whoever brings me the head of Colonel Montoya."

2. Who Shot Mr. Burns, Part 2

Officer Eddy: "Do you hold a grudge against Montgomery Burns?"
Moe: "Nooooo"
Lie Detector: BUZZ
Moe: "Alright, maybe I did, but I didn't shoot 'im."
LD: Bing
Officer Eddy: "Checks out. Ok sir, you're free to go."
Moe: "Good, cuz I got a hot date tonight."
Moe: "A date"
Moe: "Dinner with friend."
Moe: "Dinner alone."
Moe: "Watching TV alone."
Moe: "Alriiiiiiight, I'm gonna sit at home and ogle the ladies in the Victoria's Secret catalog."
Moe: "Sears catalog."
LD: Bing
Moe: "Now would you unhook this please? I don't deserve this kind of shabby treatment."

1. Homer at Bat

Don Mattingly: "I still like him more than Steinbrenner."


Kevin Smith

This post is dedicated to all those people interested in Kevin Smith. If you don't know why I'm calling this post Kevin Smith, you don't deserve to partake in the discussion. Previous Kevin Smith posts are here, here, here, here, and here.

BTW, as someone who is totally freaking out about passing the bar, let me say something about the 2Ls fascinated by Kevin Smith...chill out. There's 300 crazed zombies plus I don't know how many militant 3Ls banging down her door for rankings. You'll get them. Don't worry. I'd start learning about mortgages if I were you.


The Magic School Bus

Well it was bound to happen. I (and at least one other law student) were in an accident while on the 51. Now I know what you're thinking, but this wasn't the driver's fault. We got hit by a beer truck while stopped on Ellsworth and Durant. It was more like the truck tried to get by the bus, totally misjudged how far the bus's ass was sticking out, trailer hit the back left corner of the bus, and truck driver kept moving until a 3-4 foot hole opened up on the side of his trailer (that's how I knew it was a beer truck..he had bottles and kegs of Pilsner).

Later in the day, I saw the truck driver making beverage deliveries in a tiny 8 footer. Heh. While I'm on the subject, Berkeley people (esp. the students) are the biggest violators of the "give up your seat" rule. What's so complicated about a 22-year old guy giving up his seat to the elderly?

Any other mass transit horror stories? We want the admits to feel scared shitless right off the bat.

Monday, July 02, 2007


Bush commutes Libby's sentence.

No time in federal prison for perjury by a high official. Today is not a good day for the rule of law.


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Sunday, July 01, 2007


I saw "Sicko" last night. I'm still somewhat digesting it, but I was a bit disappointed. I should preface that I've been a fan of Moore since he was doing TV Nation. First, I think he could have done more with the whole contradiction of having life and death decisions made by a party with a distinct pecuniary interest. I mean if a judge is paid out of the traffic ticket fines, we find that a violation of the procedural due process clause. But a decision regarding life-saving surgery? Perfectly fine. (I'm not saying there's a 14A issue here, I'm just drawing an analogy).

Second, the whole France bit really pissed me off. Did we forget that they just had race riots due to rampant unemployment? They just elected a conservative government (democracy = power) to move away from their socialist programs. Focusing on a single well-to-do family won't change that. On the other hand, using the French, Brits, and Canucks as examples of how a national health care system can really work was great.

Those are my thoughts, feel free to add your own.