An Ugly Little Tree Dispute

If you install solar panels on your California property, and then sue your neighbor demanding their redwoods removed, you might win. Never mind that you may have come the nuisance, etc.--the trees gotta' go.

The irony of Solar Panel Guy asking Redwood Guy (both of whom probably voted for Nader in 2000) to cut down his trees is not lost on this blogger . . . nor is the (perhaps wacky) implication for a creative way around having to litigate certain types of land use debates.

Got a tree problem? Have you considered investing in a solar panel?

Prop 98: No more Berkeley rent control?

There's a lot of hassles that come with living in Berkeley. However, one benefit to students is rent control. Upon moving into an apartment, future rent increases are determined by Berkeley's rent stabilization board.

This benefit ends if Proposition 98 passes. From the CA Legislative Analyst's Office:

The measure generally prohibits government from limiting the price property owners may charge others to purchase, occupy, or use their land or buildings. This provision would affect local rent control measures. Specifically, government could not enact new rent control measures, and any rent control measure enacted after January 1, 2007 would end. Other rent control measures (those enacted before January 1, 2007) would be phased out on a unit-by-unit basis after an apartment unit or mobile home park space is vacated. Once a tenant left an apartment or mobile home space, property owners could charge market rate rents, and that apartment unit or mobile home space would not be subject to rent control again.

The remainder of the report may be found here.

I'm not taking a position one way or the other on the matter. I'm just highlighting the real-world impact upcoming legislation will have on Boalt students. If the presidential primary in March wasn't enough for you to get yourself registered and turn out to vote, hopefully something like this will.

A related note: the election is not until June 3 - well into our summer gigs. Time to sign up for absentee ballots if you're venturing outside Berkeley during that period...

More tech tips

For those of you who have wished the Bluebook was web-accessible and searchable, your wish has been granted.

Best of all: it's free if you plug in the ISBN of a print copy.

I'm not one to get excited by such a development - I'm quite proud of my ability thus far to avoid the thing as much as possible. However, I encourage the avid Bluebookers among us to check it out and report back in the comments.

-------

UPDATE: It appears I should better check my sources before posting. Upon review, the service is only redeemable if you've purchased a copy of a Bluebook that comes with a "Bluebook Online Subscription" or have otherwise purchased a subscription separately. See the link above for more information.

I guess the service will only be helpful if you're an avid Bluebooker who would purchase said subscription. And, for the love of Jebus, we all know Harvard needs more money...

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UPDATE2: I also apologize for my Simpsons reference in my above update / apology.

How NOT to Litigate Patents

The recent order by Judge Matsch has been making the news and blog rounds lately. (See here, here (now corrected), and here). ALL the reports that I have seen so far are grossly inaccurate in their reporting of the procedural posture of this case. A quick look on PACER reveals that Judge Matsch overturned the jury's verdict a couple of years ago because of the conduct of the McDermott lawyers. His decision was upheld by the Federal Circuit last year. About two weeks ago, the Judge issued the above order granting attorneys' fees to the defendants. That is, McDermott litigated in such a fast and loose manner that a) they lost the case despite a $50 million jury verdict and b) have to pay a couple of million in attorneys' fees to the other side.

This case is a professional responsibilities bonanaza. I'm keeping my eyes on the legal ethics blog for more commentary by John Steele.

Harvard Frees Academic Resources

An inside source (hint: he navigates by smell) tipped off the ALR class that last week Harvard made a decision: any article published by Harvard faculty must also be published in a free database. The basic notion is that information produced by scholars should be free.

While the decision surely bears most directly on the sciences, it will apply with some force to law scholarship as well.

I'm all for it. Knowledge, as they say, is power. And I find selling access to power unpalatable. After all, if you write an article at UC Berkeley (a public institution), shouldn't it be available to the public?

**********

Update: Here is an actual article on which to base your thoughts, rather than my idealistic pontification.

20% of Hastings Students Get A's, 80% "Unhappy With Grading System"

A commentator below argues bar stats suggest Boalties are soft. Yet meanwhile, a recent survey suggests our friends across the bay wish they could be more like us!*

Okay, that was a bit overstated.

But the survey does reveal that Hastings students wish their grading system was more like ours: about 80% of UC Hastings believe their 20/60/20 grading curve puts them at a disadvantage on the job market against Boalt and UCLA grads.

According to the Hastings 3L who authored the survey, "Those are the schools that our students see themselves as competing with, and they want to appear on paper as close to these students as possible." Orrick's West Coast hiring partner disagrees: " . . . before going on campus to interview, we remind the on-campus interviewers what the specific grading system at that school is so we're comparing apples and apples," he said. "We don't use the Stanford grading criteria to evaluate a Hastings student or vice versa," he added."

It was a second argument for a grading system change that struck me. Buried halfway down the page, the Academic Dean at Hastings remarks: "The curve should be relaxed because it's the right thing to do and because the students become stressed about grades."

Is it the "right thing to do"? And will it relax students about their grades? Are there any Hastings transfer students here who are in a position to answer that question?



*For the record -- I'll bet at least 80% of Boalties have at least a bit of Hastings-envy, too. I know *I* would rather live in the city . . .

1L Town Hall, Part I

The 1L Town Hall is coming up (sort of -- March 11) and suggestions are being solicited for topics to be explicitly addressed by DE. 

Three things I am burning to know:

1. Boalt's bar passage rate has been declining, with a substantial drop last July. How is the UC Berkeley School of Law responding?
2. To what extent will the imminent Boalt construction affect my quality of life as a student here? E.g., will jackhammers, dump trucks, and dudes with suspenders and tin lunch-boxes be the new backdrop for my study time?
3. Pleaded or pled?
   

What do you wish you had asked as a 1L?

The Cult of Minnesota

Are you from Minnesota? Do you know someone who is? If so, then I'm sure that person will not waste a second to remind you that the Coen Brothers are from Minnesota. Juno? Minnesota through and through. One of the hostesses for the E! after-party coverage couldn't stop mentioning that she's from Minnesota. Speaking of after-parties, Prince is hosting one...care to guess where he's from? Minnesota. I've never met more people so proud of ice, icy roads, Best Buy, 3M, and Target.

Anyway, despite their origin, I couldn't be happier that the Coen Brothers did so well. And I find myself really liking Clooney. He had an amazing sense of humor in the interviews and afterwards he shook hands with EVERYONE (cops, valets, fans) as he made his way to his car (Lexus hybrid).

Michael Clayton

I watched Michael Clayton last night, and I thought about doing a little review, until I discovered that Slate had already done a far better, far more thoughtful job than I ever could.

Instead, I'll point you Slate's way, and share three moments from their review that I found thought provoking:

Moment 1: Do the studies showing high rates of depression among lawyers tell us something about the profession or the people who go into it?

Is it possible to design study that would answer this question?

Moment 2: As a former prosecutor turned perpetual associate turned fixer for the firm, Clayton is dispatched to get Edens under control."You are a senior litigating partner at one of the largest, most respected law firms in the world," he says. "I'm an accomplice," Edens shoots back.

Do people who feel this way actually end up Edens' position, and if so, what do they do next? Drink? Crack up? Try to trace what Slated called the series of incremental compromises that defined their life?

Moment 3: Whatever the explanation, Michael Clayton offers an only slightly exaggerated portrait of a profession undergoing a kind of slow-motion existential crisis. It does so at a time when in the real world, midlevel associates are dropping out in droves. 

What on earth do they mean by a profession undergoing a slow-motion Existential crisis? Is the implication here supposed to be that concern over being and existence is related to associate turnover rates? Doesn't it make more sense to suggest that associates are undergoing a personal crisis, rather than an industry? And if so, what is their crisis?

Moment 4: " . . . The ending of Michael Clayton . . . as Clayton walks out into the bright sunlight on Sixth Avenue and hails a cab, he's enacting a fantasy nurtured by many a weary associate (and acted on by a number I know). He's extricating himself from the firm, overriding the risk-aversion instinct, and walking away—without a new job or a backup plan. "Give me $50 worth," he tells the cabbie, in a sly reminder that we are all paid for our labor and our time.

Uh-oh.

New NALP Deadline for Accepting Employment Offers: 45 Days

From the ABA Journal:

Under commonly accepted recruiting guidelines, second-year law students have been able to ponder several summer associate offers for months at a time. No more.

New guidelines adopted by NALP for a trial period now require second-years to decide within 45 days whether to accept a law firm's offer of summer employment, reports the National Law Journal. NALP's board decided earlier this month to adopt the 45-day deadline for one year, and will consider making the rule change permanent if it is well-received.

Link here, background information here.

******

Updated: Reading the text of the rules, it looks like the rule applies to permanent offers as well, and not just summer offers.  And the precise deadline is 45 days, or Dec. 30th, whichever occurs first. Offers made after Dec. 15th should be left open for two weeks.

Aim High

As a 2L, I flirted with the idea of joining the JAG Corps of one of the branches of the military. When interviewing with an Air Force CPT, I asked, "so what sets the Air Force apart from the others?"

His answer is the topic of a Time article via Yahoo. While the Army, Navy, and Marine Corps combined are asking for an increase of $12 billion in their FY09 appropriations, the Chair Force is asking for $19 billion. Back to the CPT. He said, with a deadpan expression, "Well, we at the Air Force have the best facilities. Even if you are stationed in a forward operating area, like Iraq, Afghanistan, etc. where there is no Air Force base, then there will surely be an Air Force only area at the base that will have the best facilities." I laughed at this, so he went on. "No seriously. We spend all our money on kick ass facilities. We have the best gyms, the best mess halls, the best everything. The Army likes to spend its money on ammunitions and stuff to blow things up. The Navy buys ships. We just build awesome facilities. And if ever need new bombers, we just go to Congress and ask more. I mean what are they going to do? Say no?"

***

In unrelated news, The Shark, the law student blog of Cal Law, has an interview with Boalt 1L Veronica by Abony H (also a Boalt 1L).

Pleaded v. Pled

My UC-writing-teacher-friend shares:

Hey Patrick,
I regret to inform you that the difference between "pleaded and "pled" is that "pled" is not a word. The past tense/past participle of "plead" is "pleaded." Spell-check says its a word and maybe some dictionaries, but ask the OED and it's a no go. Which is a damn shame because [us] poets love those monosyllabic, loaded words.

Although the OED does not appear to treat "pleaded" in its relationship to the noun, "pleading" (as in a complaint), that is also not the sense in which "pled" is used in legal jargon. When we say, "Plaintiff pled y," what we mean is "plaintiff said in the complaint that y." We are using the term in the OED's past participle sense, as it relates to "plead," or "ask," or, "beg."

Armen suggests the same conclusion for the following reason: Think of it as the difference between "I couldn't care less" and "I could care less."

That's an argument I couldn't understand less, but maybe he was right after all?

You tell me.

Own (and drive) a piece of history

In late December of last year, a local politician was a victim of a violent crime. While sitting at the intersection of 51st Street and Shattuck, California State Senator Don Perata (D-Oak) noticed a man with a ski mask approach him. Before he knew it, a handgun was pointed at him "gangster style" and he was being asked to remove himself from his vehicle.

Now, this event likely deserved notice here on N&B because of the close proximity of the crime to campus, and to serve as a warning for Boalt drivers who use that intersection to get to the freeway (as I do).

However, I post for a different reason - a reason that equally relates to us here at Boalt, a state funded institution.

You see, that car he was driving was state-owned. And we're not talking about a decommissioned Ford Crown Victoria with the police divider still blocking off the back seat. No, Senator Perata was driving a 2006 Dodge Charger Hemi-powered muscle sedan, decked out with 22" rims. Again, state-owned.

There's so much that can be said here regarding the priorities of state funding during a budget crisis, but I think the readers of this post could fill in any commentary themselves.

Fortunately, the car was recovered in one piece (at Hilltop Mall in Richmond to be specific). Now you can own this car for the low buy-it-now price of $22,300. Check out the link for lots of pictures. Bonus points to the person who can pinpoint the location the pictures were taken.

The price isn't bad without factoring in the value of history. If you're looking for a gas-guzzling muscle car that seats 5 and attracts a lot of attention, here's a decent option. I just don't recommend you drive it through North Oakland.

Preventing Future Tragedies

Sadly, school shootings appear to have become a regular part of our society.

Beginning with Columbine (to my recollection at least, though it probably wasn't the first), there have been a number of successful and unsuccessful attempts by mentally ill individuals to end their lives while taking a number of others with them. I can't help but feel that the media attention given to these atrocities only perpetuates their future existence, but I'll put that matter aside.

Today I read this CNN article about Utah being the only state in the union to allow students and professors to carry concealed weapons to class. It could largely be summed up by this one Utah gun-carrying student quote:

"Last year, after Virginia Tech, I thought 'I'm not going to be a victim,' " Nick said.

"My first thought was 'how tragic.' But then I couldn't help but think it could've been different if they'd allowed the students the right to protect themselves."

I want to make this clear: I'm not advocating for the Utah approach. Rather, I'm only bringing attention to this issue to hopefully spark a reasoned debate.

We're a very large school in a very large urban area known for very big gun and mental health problems. We're the school of Tarasoff and Trustifarian. Our local watering holes are riddled with gun violence, as most recently seen here.

What's the answer? Arming our "community service officers"? Restricting entrances to only those with metal detectors? Nothing's jumping out at me as the right answer. How about you?

[Ed. notes: (1) don't pull your own "Trustifarian" here, it's not funny; and (2) don't post anything with people's names or revealing information.]

9th Circuit Day, Part II

9th Circuit Day made law.com via analysis of fajita-gate's possible effects on municipality liability for off-duty employee conduct.

Or, more accurately, 9th Circuit Day made law.com via analysis of the Judges' behavior at oral argument in fajita-gate. (You can find a better recap of the argument and issue over at law.com, along with a pithy Noonan SFPD-as-buldogs-metaphor and a jab at Bybee's torture politics).

This 1L wants to know: beyond cooler-chat and bathroom reading,  how valid are inferences drawn from judges' reactions to and questions during oral argument? I mean, really. Is it realistic to try to read the transcript like tea leaves?  Or is it just too tempting to pass up the opportunity speculate?

As one rather clever Property professor recently quipped, "If you get no questions, either things are going really, really well, or really really poorly. And either way, you'll soon be drinking heavily."    

Losing to Idaho

When you are from the state -- make that the great state -- of Idaho, you take every chance you can to trump up your communal moment in the limelight.  Especially if it is a moment that doesn't involve a hate crime, a fundamentalist political organization of dubious genealogy, a US Senator, or potatoes. 

We hate talking about potatoes.

But we love talking about this article!  And also this one.  Try me in the halls tomorrow if I don't just take the day off -- you'll see.  

Idaho, Idaho, Go, Go, Go!

(*Bonus points to anyone who can spot where the last five words came from.  I donno what you'll win, exactly . . .  one of our last old growth Western White Pines, or maybe a hunting tag for an endangered species, or something.  It'll be good, whatever we can scrounge up. It's Idaho!)

10 Things I Wish I Knew About Berkeley & Boalt

1. Whether the ominous looking paint marks in the courtyard will turn into jackhammers, heavy equipment, and scurrying dudes in hardhats and suspenders before, during, or after my final exams
2. What is being built at Oxford and Allston, and how tall it will be when it is done
3. Whether I will, or will not, be caught if I blow through fastrak on my motorcycle, and whether the experiment is worth four bucks and a brief journey to the paying side of the legal system
4. What the reading room in the library would feel like if the north wall were anything other than coldly blank and barren
5. B0b Berr*ng's range of visual perception, in feet, and whether he navigates by sonar
6. The location of a green dry cleaner in Berkeley
7. The name of the monkey and the location of the hat that determines grades, and whether said monkey wears a fez and carries a watch
8. What Robert J. Birgeneau does when he's not being pleased to announce that he is sending me another email on behalf of someone else
9. How many paper cups Zeb customers consume each day
10. The distinction, if any, between "pleaded" and "pled"

Registrar's Office: Brace for Constructive Criticism

Here's an informal poll: how many times have you read the BBB so far this semester?

Me: Zero. You: likely batting less than .500.

I find this a serious problem. The BBB was a very important tool my first year. I'd receive it via PDF in my email and I would read it all the way through. However, at some point during the last calendar year (I can't even tell you when - which likely reinforces my point here) the Registrar's office decided that all of those PDF attachments were clogging up mail servers and they would no longer send them. Since that point I've received more notifications regarding the deadlines for BBB submissions than actual useful information.

I know what is coming from those anonymous posters: "you're an adult now, go get the online version or the printed version by the lockers." Yes, I know those options are available to me. I'm simply saying that I don't utilize them and I really don't think I'm the only one.

Why would it be so hard to simply have a single column BBB that is in the body of an email? Should the Registrar offer such, students like me will go back to reading it. Further, the overwhelming portion of the student body with a mail program such as Gmail can set up filters, tags, and most importantly, text search their archived versions.

But I can't emphasize enough the most important point of us all going back to reading it. I can't imagine that the substance of this suggestion hasn't made its way to the office by now. So, I ask, what gives?

Zero Tolerance

Rumor has it that a certain K professor has instituted a zero tolerance policy as regards students coming late to class.

Rumor also has it that a certain N&B admin has instituted a zero tolerance policy as regards comparing those who characterize people who support the troops as war-mongers.

Seems like the left-wing Berkeley nuts have invaded the law school. Last time I checked, freedom of expression included the right to censor viewpoints in a privately maintained blog. As for a zero tolerance late-comer (or early-leaver policy), the Academic rules clearly state "In the absence of prior communication of a valid excuse to the instructor, an instructor may exclude a student from a class for which the student is unprepared."

Other people make the rules. Get used to it. We're all lawyers or lawyers-in-training. Perhaps, instead of whining anonymously, we could come up with logical, well-reasoned arguments for why we are upset. Judges don't accept anonymous briefs.

Better to know (when for the hell of it)?

Dean O has announced that class rankings (for the Class of 2009) are available per request. From her email:

Please remember that disclosure of your class rank is permitted
exclusively for applications for judicial clerkships for after
graduation. You may also disclose it if you are applying for a law
teaching job. Any other use of the ranking information is a violation
of the Academic Honor Code.

Boalt has been known to lag in the number of students who pursue a career in either of the two above exceptions. Yet, even Dean O "expect[s] to be innundated with requests" from students seeking their class rank. This indicates to me that there's a high number of requests from students that just want to know for the hell of it.

So I ask: is it better to know?

Dildos Now Legal in Texas

Permit yet another non-Boalt diversion from yet another non-Boalt student...

Just it time for Valentine's Day, the Fifth Circuit helps the public learn to help themselves. In this opinion, the Fifth Circuit strikes down Texas's "obscene-device statute" as unconstitutional under the Fourteenth Amendment. Across the state you will soon hear a big sigh of... relief.

It's just not easy being a moralistic legislator in Texas. First Lawrence v. Texas. Now they can't even ban "a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs," as the statute reads. Until I saw this case, I had no idea the word "dildo" appeared in a statute anywhere.

And before we go, the money line: "Advertisements of the devices could be prohibited if they are obscene... [b]ut the State may not prohibit the promotion or sale of a bed, even one specially designed or marketed for sexual purposes, by merely defining it as obscene." Zing!

Sharing the spotlight

I apologize. This post has absolutely nothing to do with law, our campus, or even the city of Berkeley itself.

Rather, I'm posting it because we, each as a college, a town and a school of law, have looked ridiculous to the outside world for a number of things recently and I think it's time to share the spotlight with those students across the bay.

Here they are, looking ridiculous in my favorite article of the week.

Alito Tunes in, Dissents

Only year after the show went off the air, Justice Alito has discovered The Sopranos. And now he is pissed off and speaking out -- apparently the image of Italian-Americans as portrayed by the show conflicts with a strict interpretation of the textual history of our country's Italian immigrants.

As usual, it's best to let Alito speak for himself.

/Something Relevant to Boalt Here/

I had a BLAST at 9th Circuit Day, today. I thought it would be interesting, but I had no idea it would be fun. Please enjoy these quotable moments -- not verbatim by any stretch -- from the arguments:

Judge Quotes:

US Attorney: "The Immigration Judge does not believe the petitioner says who he says he is."

Judge Noonan: "You know, all your other claims are just garbage. You have to admit you are not going to win. But there is one claim here where you might (just might, mind you) be persuasive. Why don't you focus on that one?"

Judge Noonan: "Yes, he did say that. But he's lying. He's been telling lies!"

Judge Bybee: "If we concocted a different theory -- say, that he delivered the paper by Federal Express instand of hand delivering them -- you wouldn't be standing here today?"
US Attorney: "Yes, that's correct your honor."
. . . .
Judge Bybee: "Mr X, I think you have done a good job of defending a difficult case. It's not your fault you are here, but the fault of a policy background over which you have no control."
US Attorney: "Thank you your honor. And that's a policy decision that's way above my pay grade."

Judge Noonan: "You are trying to tell me that your ran up 4 million dollars in paralegal fees? Thats unbelievabe. 4 million in paralegals?"
Attorney: "Yes, your honor, I believe that's what the record says."
Judge Noonan: "I'm supposed to believe that you charged only 2 million in attorney's fees. And 4 million in paralegals?"
Attorney: "Yes, if that's what the record says."
Judge Bybee: "Does your firm have a website."
Attorney: "Yes."
Judge Bybee: "Does it recount your triumphs as a firm?"
Attorney: "I don't recall."
Judge Bybee: "Do you conduct press releases?"
Attorney: "I do not recall."
Judge Bybee: "Okay, then, in the ordinary course of events, would a law firm have advertised these events as a 26 million dollar recovery, or a 3 million dollar recovery? In ordinary conversation, you would say you recovere 26 million dollars, not 3 million dollars, right?"
Attorney: "You know, I really can't say."
Judge Bybee: "These other fees, that supposedly weren't legal fees. You didn't know Allen and Price was law firm?"
Attorney: "No"
Judge Bybee: "Well, I did."
Attorney: "All I know is from the record."
Judge Bybee: "But the record is written on letterhead from Allen and Price!"
Attorney: "Yes, your honor."
Judge Bybee: "So you did know they were a law firm?"
Attorney: "Yes"
Judge Bybee: "Even though you just said you didn't?"
Attorney: "If you thought I said that I didn't know, then I must have misspoke."
Judge Bybee: "Okay, then. Moving on, here, why did you use the word "recovery" instead of some more specific term in the contract?"
Attorney: "I didn't write the contract."
Judge Bybee: "But your client signed it, right? And you are good lawyers?"
Attorney: . . . .
Judge Bybee: "You are good lawyerrs, right?"
Attorney: . . .
Judge Noonan: "You don't have a case and I don't think you have a valid claim here."
Attorney: "I agree that I don't have a case on point. I wish I did. But think if we look at the totality of the record . . . ."
Judge Thomas: "91% of the money went of the lawyers here, 9% went to the plaintiffs, and now you guys are here fighting over it. When I pick up the briefs, I find that rather jarring."
Judge Bybee: "Back to the expenses. Over 4 million dollars is a lot of paralegals."
Attorney: "Yes your honor. A lot of paralegals. A whole building full of them."
Judge Bybee: "And only two million in attorneys' fees. Just amazing. And don't you build in profits on those paralegals fees, anyway? So the firm was profitting there, too?"
Attorney: "I knew I shouldn't have gone into this on rebuttal."

Judge Noonan: "You know that you have not stated the law correctly."

Judge Noonan: "Your policy covers fraud, and someone charged fraud. Why didn't you cover them?"
Attorney: "Well it covers fraud unless that fraud results in someone acquiring ill gotten gains."
Judge Noonan: "Are you seriously making that argument?"
Attorney: "Excuse me?"
Judge Noonan: "Are you seriously making that argument?"
Attorney: "Excuse me?"
Judge Noonan: "Are you seriously making that argument to me?"
Attorney: "Yes, your honor."
Judge Noonan: "Well you will have to please spell it out then."
Judge Thomas: "I think what you are trying to tell the court is that if the damage results in economic injury, then your insurance doesn't cover it."

Judge Thomas: "Who wrote the findings?"
Attorney: "Well, he used our documents as well as others to form his opinions, but a lot of what he wrote was his own."
Judge Thomas: "Then why were they printed on your letterhead?"

Attorney: "Cognizant of the fact that I am in before law students today, who undoubtedly would like to hear oral argument, I also think my position has been made clearly enough that if I use up all of my allotted time I will only begin repeating myself. Unless the court has any questions?"

Attorney: "It seems to me, your honor, that you are playing devil's advocate here."
Judge Thomas: "Well, of course I am. I am supposed to be doing that."

Judge Thomas: "I understand the distinction between this case and those that cut against you, but what case goes for you?"
Attorney: "Well, no case goes for me. But these kinds of cases don't come along very often."

SF DA: "There is no evidence that this officer was inovlved in random violence on the street."
Judge Thomas: "Are you saying he was involved in planned violence on the street?"

And . . . . [drumroll please] . . . the worst argument of the day, appealing a summary judgement ruling:

Attorney: "If people can elect a president, why shouldn't we let a jury vote on causation?"


From the Q&A session with students:

Judge Noonan [regarding the court's reversal rate]: "Typical numbers are 20 out of the 16 thousand cases that come before this court. Who is worrying? It's like being struck by lightening"
Judge Thomas: "Well, in that case I've been struck by lightening a time or two."

Judge Thomas [regarding the court's reversal rate]: "Its' largly a media myth. But you just take the repution, like Dennis Rodman."
Judge Bybee: "We're the Dennis Rodman???"
Judge Thomas: "Yeah, we're like the bad boys of the federal circuit."

Student: "May it please the court."
Judge Thomas: "Sometimes it doesn't"

Judge Noonan [regarding the persuasiveness of oral argument]: "You are absolutely right -- we've read the briefs, we've looked at the record, and we've made up our mind! Now it can be changed, maybe 1 in 10 times, but we have done our homework, and we are intelligent, and of course we have made opinions prior to oral arguement!"

My predictions on rulings, which are based on the oral arguments only:

Omondiagba v. Mukasey: Appellant. Hand delivering a valid birth certificate destroys your credibility? Seriously?

Broen & Bain v. O'Quinn: Appellee. 4 million in paralegal fees, 23 of 26 million to the lawyers, and now you want to hang on to another 3 millions?

Research Corp. v. Wesport Ins. Corp.: Appellee. No one really thought they had negotiated a policy which only covers events that do not result in economic harm, did they?

Snyder v. San Francisco. Draw. It seemed like the judges were willing, eager even to hear the appellant's argument. In fact, it seemed like they wanted to help him make it at times. But the rambling, hyper-nervous, quaky voice chatter of appellant's attorney never quite put all the pieces in a row. And his opponent, DDA SF, had obviously been in court a time or two. Maybe appellant's briefs are better -- if so, SFPD is going to be bummed.

Photos from yesterdays protest, counter-protest, and counter-counter-protest

Crazies on both sides.

Berkeley City Council v. Marines - Part Deux

Have you had the privilege today (as I have) to see Berkeley at its finest?

From the Chron:


Anyone going tonight? Discussion is supposed to start at 9:00. It's sure to entertain.

Anyone have a prediction re: action(s) of the city council when the entire nation is watching? Resulting aftermath?

Yes We Can, Iran!

The comments to Patrick's post below suggest the best test of your feelings about Obama is whether that Will.I.Am video inspires hope or creepiness. In the interests of party unity, I found a similar video everyone can rally around (except for the 1.5 Republicans who read this blog).

Fire the NYT!

Speaking of the increasingly unreadable Paul Krugman, is it just me, or is the whole stable of NYT columnists about two months past the drink-by date on the milk carton?

Tom Friedman has been writing the same column since 1997 ("Globalization: Wow!"), Nicholas Kristof is the guilty conscience I don't want to hear from at 8:15 AM, Bill Kristol's new column is generated entirely from a robot stored at the RNC, Bob Herbert is right but boring, and Maureen Dowd is now completely indistinguishable from one of the Heathers after losing a student council race.

David Brooks is the only columnist who is occasionally interesting, with his "I'm not a sociologist but I play one on TV" shtick. But that's like being #1 in a class full of kids held back a year.

Would there be any objection -- any at all? -- if we fired the lot of them and replaced them with a 7-day rotation consisting of Jon Chait, Barbara Ehrenreich, Michael Gerson, Daniel Gross, Bill Simmons, Charles Barkley, and Ted Nugent? With Keith Olberman or Flavor Flav thrown in as a wild card now or again?

"Nixonland" and "Clinton Rules"

Not to step on the toes of our Election Wizzard, I share what I think is a well done editorial from Paul Krugman.

As he points out, supporters of each candidate should have no trouble rallying behind the other if he or she gets the nod.

Why, then, is there so much venom out there? 

(Not from Boalties, of course!)

PI/PS Day Blues

Despite all the criticisms of CDO that I've seen here, I've been offering them the benefit of the doubt since August. When a meeting with one of the counselors didn't answer any of my questions, I figured it was just that I hadn't known what to ask. Now, after PI/PS Day, I'm about ready to give up on the CDO.

Let me start by saying that some of the problems I encountered with PI/PS Day were my own fault. Instead of submitting resumes to the employers through both the online system and individually, I just did them online. I also only submitted resumes to a few employers, instead of the 15 or 20 or 40 that some people did. It would have been nice, however, if the CDO had told us that the employers had a strict quota system, accepting a set number of student interviews from each school, and that some employers, like the EBCLC, wouldn't accept Boalt interviews at all.

Then there was the logistical aspect of it. The waitlist table wasn't really a "waitlist" per se. It was a first come, first served set up, where you had to haunt the table if you wanted a spot at one of the popular groups. Meet the advocates was a little better. The two sessions were held in large, crowded rooms. Some of the advocates didn't even show up. Others were only there for a short time. There wasn't much of a chance to have a real conversation, since at any given time there was almost always a crowd around each table.

I'm curious if anyone actually got a job offer on the spot through Meet the Advocates. For that matter, I'm curious as to how many people got offers right after an interview.

"Work Spouses"

Time for a somewhat light-hearted reprieve from the recent string of more serious blog posts.

I stumbled across this article about platonic work flirting and found it amusing because I think it applies to our law school more than most work environments. It's definitely worth a read. From the article, "23 percent said they had a 'work husband' or a 'work wife.'"

Here's the moral of the story:

Is your "work marriage" crossing the line?

• Would you behave the same way if your romantic partner were standing next to you?

• Are your flirtations consistent with the way you normally behave?

• Are you thinking about your "work spouse" while not at work?

• Do you compare your "work spouse" to your real romantic partner?

If so, you have a problem. [Sorry, no toll-free hotline number included for help.]

Representatives who ride the short bus

This is really chapping my @$$. I consider myself a fairly reasonable, moderate political individual. Yet I live in a town that's hell bent on letting everyone know it can out-liberal the next town. The most recent example of our wonderful city council's antics is the anti-Marines resolution.

My intent with this post should be made very clear: I don't appreciate the city council spending time taking stances on issues far beyond its purpose, while ignoring much more pressing issues such as the fact I can't walk down Shattuck without getting hit up 10 times by "street people" (or seeing them relieve themselves on the rapidly vacating store fronts).

However, this mess just got elevated to a whole new level. Not to be out-done, choice Republicans in DC have banded together and introduced parallel bills in the House and the Senate (dubbed "Semper Fi Act of 2008") that seek to fiscally punish the City of Berkeley.

How you may ask? De-funding two institutions: (1) UC Berkeley and (2) a group that provides food to school children. The stupidity of attacking two unrelated targets not responsible or connected to the City of Berkeley requires far more space than this blog post could provide.

For the article, check here.

A Little Hillary Never Hurt

A quick interruption of the EW lovefest [An aside: Apparently EW didn't realize that his TNR bookmark was actually directing him to N&B these past few weeks, but his confusion has been rewarded with heaps of praise from the commenters. I'm enjoying the EW posts myself, but I can assure you, anonymous commenters, that if you ever met the myth that is EW, you would never again seek him out for advice on anything].

I voted for Obama this morning. This does not make me special, as, with the exception of one person, EVERYONE I know voted for Obama (or at least all young people I know). As this Slate article points out, young Hillary supporters (and particularly young male supporters) are about as common as Armen-embroidered tote bags. More locally, a friend who is in school in SF told me she wasn't feeling great about her Obama vote because of all the pushy Obama supporters on campus.

It seems that as the candidates have ratcheted down the animosity, many of their supporters have ratcheted it back up in preparation for Super Tuesday. I don't understand why--never before have we had so much reason to be "pro" our preferred candidate without being "anti" their opponent.

Personally, I voted for Obama because, among other reasons, I think we need to move on from the Bush-Clinton dynasty, and I do think it is true that Hillary will be more likely than Obama to inspire partisan rancor. I also like Obama's chances agaisnt McCain better. So I will be a bit disappointed if Obama isn't the nominee. But--if on November 7 I am voting for Hillary, instead of Obama, I will be proud to do so. It will be a historic vote, and it will be one for a more-than-qualified candidate.

Final Predictions?

Here's mine:

California: Obama 47.1, Hillary 45.4
Nationally: Hillary 13 states, Obama 9 states
Total votes cast: Hillary +610,000
Media storyline: David (aka Obama) fights to an impressive near-draw with Goliath (Hillary). She wins this round, but he has the momentum and the favorable schedule. The race goes on!

What's yours? The commenter that comes closest to nailing the final tallies gets a Nuts & Boalts tote bag. (Armen is embroidering one as we speak.)

"Don't Blow It Obama" Update

The campaign figures it out. From a memo from campaign manage David Plouffe (reprinted at the Atlantic's blog). They need to keep pushing this -- you already see the ludicrous, last-6-hours-only reframing that Obama is now the favorite tomorrow...which just isn't true (yet; check back in 12 hours).

February 4, 2008 To: Interested Parties

From: David Plouffe

RE: Putting Tomorrow into Perspective

Two weeks ago, a Clinton campaign adviser told CBS News that they believed they could “wrap up” the nomination on February 5th. As the “inevitable” national frontrunner, tomorrow should be the day when she sews up the nomination or builds a formidable delegate lead. But because of Obama’s growing momentum across the country, the Clinton campaign is now unlikely to reach their stated goals of wrapping up the nomination tomorrow.

Senator Clinton is certainly the favorite on February 5, given the huge leads she has held in many of these contests throughout the course of the campaign and the political, historical and geographic advantages she enjoys in many of these states.

For example, California, which Clinton led by 25 points in October and 12 points two weeks ago, was once seen as the Clinton campaign’s firewall and where they planned to run up an insurmountable lead in delegates. Former Governor Gray Davis, a Clinton supporter, said on MSNBC last week, “I am pleased to be for Hillary Clinton and I expect her to do very well in Super Tuesday. I expect her to win California by a sizable amount, at least double digits, do well in New York and New Jersey and Connecticut.”

Based on her huge head start, Hillary Clinton should still win California, but is unlikely to achieve her goal of getting a sizeable share of the delegates.

Our path to the nomination never factored in a big day for us on February 5. Rather, we always planned to stay close enough in the delegate count so that we could proceed to individually focus on the states in the next set of contests.

California Dreaming

Speaking of the tightening race in California, there's a host of polls out today showing what a lot of us have suspected for some time: California is a toss-up for the Dems. We've got Suffolk (Obama +1), Rasumussen (Obama +1), Reuters (Obama +4), and Mason-Dixon (Hillary +9). But perhaps the most interesting is the Field Poll, California's oldest and most reputable polling outfit. These guys know the state, and so when they say it's Hillary by two points, I think that's as good a snapshot as we've got. (With the caveat that this race is changing by the hour).

But buried within the cross-tabs of that 2-point Hillary lead are some incredibly good numbers for Obama.

First, the Field Poll estimates that 87% of the Democratic electorate will be composed of registered Democrats -- and only 13% will be decline-to-state voters. (These are the so-called "independents" who can choose to vote in the Dem primary (but not the GOP primary) if they request a ballot. Decline-to-states make up almost a third of California's registered voters). I and most everyone I talk to think the 13% number is wayyyyy low; you could see an 18, 20, or 22% independent share of the vote...and Obama wins that demographic by 22 points.

Second, the Field Poll has Hillary winning Latino voters by 52-19%. But Hillary will not, not, NOT win Latinos by 33 points. I can't stress this enough. I'll do naked back-flips through the courtyard if that happens (not that anyone would want to see that). As I've been trying to tell my DC journalism friends for months, the idea of some deep-seated black-Latino animosity in California -- or some deep-seated Latino loyalty to the Clintons -- is a figment of Newsweek's imagination. Latino voters on average tend to be less engaged in politics until much later in the process -- and so the earlier polls are a function of Hillary's name ID. As Obama does Spanish-language TV and radio, as Ted Kennedy and Oprah and other surrogates campaign in East LA, as Obama collects the endorsement of La Opinion, California's largest and most influential Spanish-language newspaper, those numbers will move. I still think Hillary will win the Latino vote -- probably by 15 or 20 points. But it won't be by 30...and that's worth a couple more points to Obama across the total electorate.

CA Q&A w/ EW

A commenter to my post below asks a couple of sharp questions, and, easily flattered, I can't resist answering.

What indications are there, if any, of who will win the mail-in ballots on Tuesday? The CW is that Hillary's position in CA is stronger than it seems, because almost a quarter of the state has already voted through early absentee balloting and has thus "missed out" on the Obama surge. But as the incredibly brilliant and good-looking anonymous source in this New Republic post points out:

[I]t’s important to remember that the absentee vote in California is far older and whiter – but with fewer professionals making more than $100k – than the election-day voter.

In other words, it matches up with the demographics of Hillary’s existing support almost perfectly. Those early absentee voters would have been in Hillary’s camp regardless of any Obama surge; absentee voting just lets them mail in the foregone result sooner.

I suspect that the people who are left – younger, non-white, and professional voters – are all Obama people, and so her lead isn’t quite as invincible as it seems.

Do these new polls take into account the mail-ins? If so, how reliably do they do that? Some do -- namely by asking, "Have you already voted, and if so, for who?" But they don't always break out the results into cross-tabs. Field Poll doesn't give that info, for instance -- though this Survey USA poll does, which is where the "Hillary leads in early voting" meme comes from.

Now that California finally matters in nominating a Democratic candidate, do you think Californians will decide to be like Iowa, buck the Clinton machine, and go with the inspirational underdog (Obama)? This is very interesting. I tend to think there's two Dem electorates in California. First, there's the "machine" electorate of hard-core committed Democrats, the ones who, say, turned out for Phil Angelides in the 2006 gubernatorial primary despite the near-universal consensus he'd make a terrible general-election candidate. These voters are Clinton die-hards, and nothing will change their mind.

But there's also the share of Democrats who, say, voted for Arnold Schwarzenegger in the 2006 general election (almost 25%, if I remember correctly), who despise the dysfunctional (but Democratic) state legislature, who tend to be more upscale professionals -- economically moderate, but socially liberal. They're the Obama people.

The race will likely turn on which group comes out in force. Will the committed party activists make enough phone-bank-calls, bake enough cookies, and twist enough arms to get the Clinton bloc out to the polls? Or will the yuppies in Westwood, Novato, and La Jolla find the time to put down their Pinot and their blackberries and trudge to the voting booth to vote for liberal-love Obama? Hard to say.

Bradley effect? Are these California polls infected by the supposed phenomenon? I don't think so. In general, Californians are more tolerant, benevolent, and honest than other Americans. (Cue the awards music.)

I think it's in keeping with a vital aspect of this state's ethos to reject dynasty and vote for a new face. Anyway, do you think that anti-monarchical/dynastic tendencies are at all on the minds of democratic voters and independents? I think there's definitely that under-current in the California Democratic electorate...but unfortunately, Obama has NOT really focused on it in this race (partly b/c of limited resources). If he had infinite time and infinite money, he could have run a Google-touring, Hollywood-ad-producing, Internet-driven, insurgency-mounting, anti-incumbent type of campaign...really gone after the Clintons as being the dot-com boom to his Web 2.0, the Gladiator to his Crash, the Gray Davis to his Gavin Newsom, the Boalt Hall to his Berkeley Law, the Mission to his SOMA, the HHK to his AJO, the Heller to his Orrick, the old to his new....but he didn't really do that. His campaign has been more conventional and hasn't really pushed the anti-dynasty theme. But maybe he didn't need to. We'll know on Tuesday.

Schadenfreudengland

Schadenfreudengland (n.) (shäd'n-froi'd-ing-lund) The act of taking pleasure in the no-good, cheating, classless Patriots finally getting what was coming to them.

Is Obama About to Blow It?

Like the Dude dealing with Walter as they make the hand-off of his dirty undies, I'm deeply worried Obama is fucking this up. Yes, he has the momentum, the newspapers, the money, the endorsements, the press, and the pundits working in his favor. But there's one thing he doesn't have working in his favor: the numbers. And if he doesn't radically change his message in the next 48 hours to start screaming "delegate count!!" he could be in for trouble.

Here's why. Though Obama has been surging in all the polls, Hillary still has small but distinct leads in seven of the nine super-super-Tuesday states: California, New York, New Jersey, Illinois, Massachusetts, Georgia, Minnesota, Missouri, and Tennessee. Together, they account for more than 1,250 of the almost 1700 delegates up for grabs. (Real Clear Politics has great polling data on this -- though their delegate counts are off. This DNC blog and this Wikipedia page do the best job of analyzing the delegate mess.)

I've spent the last hour running some spreadsheet models for 2/5 (because, alas, I have no dates with Hillary supporters this weekend...and probably never will again after confessing this is what I do on Saturday nights, but I digress....), and, using the latest polling for the Super Tuesday states, it looks like Hillary will win between 12-16 states to Obama's 6-10, giving her about 875 delegates to his 800 -- and about 750,000 more votes cast nationally. (Delegates are awarded proportionally, so a candidate can lose a state but still draw significant numbers of delegates. I used the latest polling to award delegates for each state.)

So if you're Hillary, and you win twice as many states as Obama, 100 more delegates, and almost a million more votes -- but you face an insurgent candidate with all the momentum (who does exponentially better the more a state sees him, as the Washington Post discovered today and I noticed eight weeks ago) -- what do you do? I submit you do what Senator George Aiken told LBJ to do in Vietnam: declare victory and get out.

If these trends hold, Hillary would be crazy not to stand up and claim a national mandate on Tuesday. Tell us the country has spoken. Humbly accept the nomination. Hug Chelsea. Then put Terry McAuliffe and the other spinners on TV to announce that prolonging the nomination battle only benefits the Republicans -- if not Al Queda.

Don't think Hillary hasn't thought of this. She's got a superior press operation that thinks they can roll the press -- and a press that's been telling us for a month Super Tuesday will decide the whole megillah. 2/5 has an inexorable momentum. If she succeeds in this, the national numbers will push to 60-40 in the week following Tuesday, and the rest of the race will be mop-up duty.

What should Obama do? (Assuming he doesn't pull off the triple-bank shot and win Super Tuesday. I actually think he might -- and ignore those big Hillary poll leads in CA. This state is a total toss-up...but I digress again.) Climb the tallest media riser he can find and start screaming about delegates at the top of his lungs. He needs to frame this as a long-term war of attrition -- with all the voting to date equaling nothing more than a split decision.

And he needs to show people the numbers to make this work. Omitting super-delegates for a minute, if these polling trends hold (and if I've converted them to delegates properly), Hillary would have only about a 925-850 delegate lead -- with 2,025 needed for the nomination. That's nothing. On 2/5, no Obama aide should be allowed to speak to a reporter, go on TV, or appear in public without a little portable white-board listing these numbers. Better yet, convert them to percentages needed to win the nomination: Hillary has a "45% to 42% lead in delegates needed for the nomination." "It'll take another two months to sort this out." "Time to move on to the next states." Poof. A blow-out turns into a nail-biter.

The problem is that Obama needs to start framing the message as a long-term delegate fight right now. If he doesn't, the Clinton press operation will control the 2/5 frame, declare victory, and hope enough reporters bite.

Unfortunately, I haven't seen any Obama messaging along these lines. Nada. As I look at the Sunday wires, I see a few national reporters starting to speculate that 2/5 might not resolve everything -- and for all I know, some Obama press aides pushed that line. But if so, they're not pushing hard enough. And it's important to remember that, in the final days before an election, no one is thinking clearly and no one is thinking more than 12 hours out. Right now, on the Obama campaign, the comm shop is exhausted, the campaign manager is putting out fires , and Axelrod is looking at a giant map of media buys. No one is worrying about the 2/5 message. But unless someone starts, there'll be nothing to worry about on 2/6.

The Networking Dilemma

I keep hearing from CDO, the professors, and the LRW/WOA instructors, that my best resource for finding a summer job is the student body. This makes a great deal of sense - other students are much more likely to give us the lowdown on what a particular employer is like.

I have, however, encountered a problem. I've been given several names of people that I should contact, either to ask for their input on a certain job, or to ask if they need unpaid slave labor for the summer.

Fellow Boalties, help me out. How do you write an email (or make a phone call) to someone you don't really know at all? Is there an unwritten protocol to follow? Also, if you're interested in working with a particular person, is there a way to ask if they'd like a research assistant/intern for the summer without sounding pushy?


(Yes, I'm aware that there's a 1L summer perma-thread. I'm posting this here and not there because 1) there's no useful advice on that thread and 2) this sort of question isn't limited to 1L's looking for a summer job.)