Wednesday, April 30, 2008

I Can't Believe It's a Law Firm

I meant for this to be on ink and paper, but since that doesn't look like it's happening, I figure I'll turn it into a post. Note: if you don't find it funny, it's because you have no sense of humor and don't watch enough of The Simpsons to catch my references. Also, this is all created in my head and does not refer to anyone I actually know.


As a law student I strongly suspected that people in the legal profession can be compared to the cast of The Simpsons. Now as a young attorney, my suspicions have largely been confirmed based on my exposure to the legal community at large. I would like to briefly outline some of The Simpsons characters that you may come across at your work-place.

Homer Simpson

I am certain that almost every firm, non-profit, government agency, etc. has a Homer in their midst. I'm not talking about a fat slob who eats 64 slices of American cheese in a single sitting—although that's certainly a possibility. No, I'm talking about the person who does the right thing by the purest of pure dumb luck. This person averts a nuclear litigation disaster by covering his or her eyes and counting "Eenie, meenie, miney, moe.” Voila, case dismissed. Sanctions averted. Smoking gun found. Homer also has numerous Grammys, Emmys, spacewalks, and other never-in-a-lifetime accomplishments under his belt. Almost all of them are because he did something stupid, such as make prank calls to NASA. Homer thinks that the late-Earl Warren was a stripper, and he is deeply distraught that Justice Souter is in fact a nerd. Homer is not likely to have his voicemail set up because he does not know how to use a touch-tone phone. When it comes to negotiations, the other side will cave in to Homer's demands out of frustration, but then realize that "Homer Simpson is not the brilliant tactician [they] thought he was." On pro bono matters, Homer will win accolades for his enthusiasm. However, he works hard on such matters only to get rid of them. Homer has an alcohol addiction. During the substance abuse CLE programs, people often whisper his name for that incident with "that beer that has candy floating in it, you know Skittlebrau." In short, Homer is your average partner, District Attorney, or other elected official, such as a Sanitation Commissioner.

Marge Simpson

Marge is also likely to be partnership material, but not for the same reasons as Homer. Marge is smart, works hard, and is very detail oriented. She got to her position of leadership based on skills, intellect, and possibly lying about speaking a foreign language on her resume. Although repulsed by the idea of working with Marge, a Homer Simpson finds her indispensable for covering up his own mistakes. Marge is the lawyer who thinks everything through. If you want to weigh all of your options then be sure to bring Marge into the team. She will second-guess every decision ever made. If the firm wants to legalize gambling, everyone will naturally turn to Marge as the voice of opposition. Marge is the constant nagger. Those who work for Marge will almost certainly hear her asking a million questions: Did you include this case? Did you cite to that? Did you use an M-dash instead of an N-dash? Marge will even hit "reply all" to correct a grammatical mistake. Because she works long hours without any vacation, Marge is prone to a complete nervous breakdown while driving to work.

Lisa Simpson

You probably went to law school with Lisa, especially if it was an ivy league law school. For undergrad, she went to one of the seven sisters. You know the type: academic standout, plays musical instruments, and pursued law for the greater social good—probably vegetarianism inspired by Paul and Linda McCartney. Lisa has only one or two others who can match her intellectual prowess. Unfortunately, she also has no equals when it comes to pissing off the vast majority of other people around. [Ed. note: Hmmm]. Lisa is the associate who joins a law firm only to pay off her loans as quickly as possible. She is repulsed at the thought of working for a Mr. Burns (see below). As long as Lisa works at a firm, she will be a royal pain in the butt. Unlike Michael Clayton, Lisa will not cross any ethical boundaries for the good of the firm or family. She is especially opposed to stealing cable and bootlegging alcohol. Partners will be frequently tempted to send Lisa to her room to avoid hearing her protests. Lisa will be the first in her class to leave a law firm for opportunities in Costa Rica.

Bart Simpson

Bart is Lisa's direct rival. Bart did not go to the best schools. More likely than not, Bart went to a state school for undergrad and a law school hanging on to accreditation by a thread. Yet Bart can talk his way out of any situation, especially a sanctions hearing of some sort. He proudly displays pictures of his fraternity brothers in his office. Bart is your ace golfer, star hockey player, and trained shoplifter. You probably know a Bart in your firm's Dallas office.

Maggie Simpson

I am convinced that all transaction departments consist of Maggie Simpsons. I have not heard any of them say anything more than "Dada?"

Grampa Simpson / Troy McClure

If your firm has a named partner who is still hanging around, chances are he is either a Grampa Simpson or a Troy McClure. The Grampa Simpson variety comes to work in slippers. He tells tales that are incredible on several levels (such as claiming to have chased the Kaiser diggety-six miles for stealing our word "twenty"). His name appears on all the briefs, but the work is really that of associates like Bart and Lisa. Grampa Simpson remains at the firm because of his relation to Mr. Burns during the Great War and because he's a freemason.

The Troy McClure variety is different. This is the senior partner who walks into your office and introduces himself thusly: "Hi, I'm Joe Partner. You might remember me from such cases as Hawkins v. McGee." The executive committee just can't get rid of him (see Sidley Austin), and he simply refuses to go away (see every single name partner still practicing today).

Lionel Hutz

He is rumored to be a lawyer, and he has law degrees from Harvard, Yale, MIT, Oxford, the Sorbonne, and the Louvre to prove it. You're probably not going to find Lionel Hutz as an attorney at a law firm. (The title of this essay is the name of Hutz's law practice). Instead, your firm is probably involved in the prosecution or defense of a legal malpractice claim against Hutz.

So what is Hutz like? For one thing, Hutz worries when one of his witnesses take the oath to tell the truth seriously. He goes to trial with only "hearsay and conjecture [which] are kinds of evidence." If you open to the bar discipline section of this very magazine, I guarantee at least a few of the attorneys mentioned sound like they apprenticed under Hutz. Did they promise a client to win their case in 30 minutes or the pizza is free? Did they run away screaming when the opposing party revealed ten high-priced lawyers? Did they tell a client, "Mr. Simpson, the state bar forbids me from promising you a big cash settlement. But just between you and me, I promise you a big cash settlement." Did they sue the producers of The Neverending Story for fraudulent advertising? Did they offer their clients a belt of Scotch at 9:30 in the morning? Ask any Lisa, and she will confirm that Hutz is simply a shyster, or "a latter-day Clarence Darrow."

Moe Szyslak

The difference between Moe Szyslak and Lionel Hutz is that Moe has not yet been disciplined. Moe will expunge that DUI on your record while selling you a pint of Duff. Moe also traffics in killer whales and participates in illegal gambling. He is probably an undocumented alien not authorized to work. Moe is your average solo practitioner.

Charles Montgomery Burns / Springfield Nuclear Power Plant

I'm sure every attorney occasionally feels like s/he is representing Mr. Burns or the Power Plant. If your clients has done any of the following, then they have something in common with Mr. Burns:

• Pollute the environment so much that it leads to mutations
• Eliminate a competitor (the sun) by completely blocking it out
• Bribe government officials
• Pay hefty fines
• Sexually harass employees
• Bust unions
• Determine Republican Party nominees for mayoral elections
• Hire ringers for the company softball league
• "Crush the freedom fighters before the start of the rainy season"
• Prepare propaganda films comparing self to Christ
• Use a recycling plant as a front for killing all ocean life
• Wear loafers made from former gophers

Nevertheless, as an important client of the firm, Homer will stop at nothing to please Mr. Burns—even sacrificing the blood of the young Bart associate.

Tuesday, April 29, 2008

Test Dummy

The blogosphere (and my inbox) lit up this evening with news about Boalt's "new hire." See a faculty profile here, and coverage here, and here. A PDF of the faculty list (in case it has changed) is here.

WTF? Why hire someone who is bad at tests?

Oh well. Stranger things have happened.


[Lifted up to the top today for the update at the bottom]

So: the administration has responded to the Telebears "scandal" (see comments for full email).

Key quote: "Modifications will be made, beginning with the Spring 2009 iteration of Tele-BEARS, so that the appointments are assigned in a more randomized fashion."

First: Congrats Patrick, you've single-handedly taken down a system that has existed since 2003 within 24-hours of you wielding your sword.

Second: What does everyone think now?


UPDATE: the school's student paper has picked up the story.  More specifics on what happened, as well as the school's [lack of] reaction, can be found here.

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Monday, April 28, 2008

Berserkeley - A place we call home

I've used this soapbox to do a lot of complaining about Berkeley over the past year. Today, the Chron had an article that indicated Berkeley may not be all that crazy - at least some of the time.

The article looks at Berkeley "firsts," which include, "police radios, a ban on Styrofoam, health benefits for domestic partners and a switch to biodiesel for city cars."

So, here's to you, Berkeley, for all the good you've actually brought the rest of the world.

I apologize for this intermission. You may now get back to complaining about Berkeley's favorite pastime below...

More on Graduation Protests

I am posting this on behalf of someone else. No matter how many times I say this, people will still forget that I AM NOT THE AUTHOR OF THIS POST.


So, it seems like the protest plans are gathering steam. Not only will it be the hoary standbys in orange jumpsuits, but some actual lawyers and law students may come protest.

This means that not only will my aged and easily distracted father be annoyed by heckling from the aforementioned orange-jumpsuit-wearing septuagenarians as he approaches the Greek Theater, but he may also end up being distracted by shouting &c. during the ceremony, which could cause him to miss photographing that crucial shot of me holding my diploma-looking document in my teeth and flashing the Nixon double-Vs above my head.

The email below has had necessary portions redacted. Bolding is mine, to draw attention to the group's desire to only protest in appropriate ways... Note that my use of italics is to indicate I am being ironic: I do not think graduation is a particularly appropriate forum for protesting John Yoo.

Both [some very important person] of Equal Justice Society and I have received inquiries about staging a protest concerning John Yoo at Boalt, possibly at the Graduation Ceremonies or some other appropriate way. We are interested in having a preliminary meeting to discuss possible strategies that would both respect issues of academic freedom and express our concerns about John Yoo's memoranda concerning torture and executive powers. We have arranged meeting space near campus at Greenlining so that Guild and other Boalt student representatives and civil rights coalition members could discuss the possible protest.

We have reserved space for [Secret Time] on {Secret Date],[Secret Location].

I'm not sure we want to send it out too far and wide because there will be limited space, but please let individuals know about this meeting who may be interested and willing to come. [yet another influential person]- I apologize that this appears to be planned at the same time as the MLTF meeting, but maybe one person who has been active on this issue from MLTF can come out. [Shot Caller]- maybe you can update us on what happened at the WCW meeting last night - otherwise I will certainly contact you before Tuesday. Please RSVP to me if you will be there. Thank you.

{Big Boss]
National Lawyers Guild


Saturday, April 26, 2008

Guess Who's Coming to Graduation!

A bunch of orange-suited protesters with faux electrodes tied to their balls!

--- On Thu, 4/24/08, wrote:
Subject: Fire, Disbar, Prosecute John Yoo: Protest at 5/17 Graduation,
Boalt Law School
Date: Thursday, April 24, 2008, 9:42 AM

Friends & fellow-activists, You've probably followed this month's
revelation of the contents of John Yoo's legal brief of March 14, 2003,
advising the White House how it could get away with torture. Jameel
Jaffer, director of the ACLU's national security project, said Yoo's legal
reasoning puts "literally no limit at all to the kinds of interrogation
methods that the president can authorize. [...] The whole point of the
memo is obviously to nullify every possible legal restraint on the
president's wartime authority. The memo was meant to allow torture, and
that's exactly what it did." In the wake of the memo's release, the
National Lawyer's Guild has called for Yoo's dismissal from his position
at UC Berkeley, his disbarment, and his prosecution for war crimes. The
Center for Constitutional Rights has released a letter in support of this
call. While John Yoo is no longer deputy assistant attorney general for
the Bush administration's Office of Legal Counsel he is still a professor
at UC Berkeley's Boalt Law School. And Boalt is having their annual
graduation on the morning of Saturday, May 17th, at the Greek Theatre on
the east side of the campus. A reception at the law school, just around
the corner (southeast corner of the campus) will follow. We're going to
be there to demand he be fired, disbarred, and prosecuted. Will you join
us? Where: Hearst Greek Theatre, Berkeley California (east side of
campus, on Galey Rd) When: Saturday May 17, 2008 8am
(ticketed guests will all be inside by 9 -- you can take a nap in the
afternoon!!!) PLEASE RSVP by writing to !!
We're looking for a major presence at this event now that John Yoo's full
complicity in attempting to grant the torture-administration immunity has
been revealed. The graduation ceremony starts at nine, but our protest
will happen BEFORE the ceremony, beginning at 8 am when the gates at the
Greek Theatre open to guests (only folks with tickets will be allowed
inside, but we'll have plenty of opportunity to make our point as
students, faculty, and families arrive through the two entrances to the
Greek Theatre). During the ceremony we'll take a coffee break, and will
return to line the route between the Greek Theatre and the Boalt Law
School where a reception will be held. We plan to have the usual orange
jump suits & our cage, lots of orange ribbons that we'll ask people to
wear inside the graduation, and excellent signs for the many of you we
expect will come out for this action. Please come out on May 17th!
Yours, Act Against Torture


I'm deeply ambivalent about this. On the one hand, of course, I don't like that all of us students, who have worked so kind of hard for three years, and who are just looking for one morning to celebrate our accomplishments, and who have elderly and possibly not-quite-ambulatory grandparents in tow -- that we have to wade through a mass of shouting and screaming and...politics. Just to graduate.

But even in the larger context, this protest seems...well, 'counterproductive' is too generous. How about 'stupid'? In my post below, I think I made clear that I, like almost everyone at Boalt, disagree deeply with this country's torture policy that John Yoo helped instantiate. But if there's one lesson the last seven years have taught, it's that you have to VOTE to change things. The courts aren't going to save the liberals. Neither is the New York Times. Or Keith Olberman. Or YouTube. Liberals have to convince the rest of America to change.

Disrupting the graduation ceremonies of 3,00 well-educated, well-informed, wealthy, politically moderate parents and relatives with a raucous and inflammatory protest does NOT seem like a very effective way to do that. It seems like a way to piss off a lot of people who should be allies.

This isn't terribly surprising though. The American left has specialized and perfected the talent of alienating those who should be its strongest supporters. See, e.g., "Bitter, clinging to." This protest is part of a long tradition of digging the whole deeper.

Of course, on the other hand, to be fair, I can sympathize with their instincts. Yeah, this will generate a lot of media coverage. Yes, it'll keep torture in the news. It'll 'get their message out there.' And are we so sheltered as to need cover from a little political antagonism on a Saturday morning?

So I can see where they're coming from.

But it's important to remember that goading is not the same as convincing. Shouting is not strategizing. Disruption is not persuasion. For once -- for just one goddamn moment -- I wish these people would think about whether they're making more enemies than friends.

But perhaps I'm giving too much credit to people who have a canvas orange jump-suit hanging in their closet, at the ready.


Thursday, April 24, 2008

California Faculty Swap Three-Way

As far as I can tell, Cynthia at The Shark scooped everyone on this tidbit: we didn't lose Dean O to UCLA. In fact, we may have merely traded her in on a newer model.

Cal Law published an article explaining that the "Boalt Hall School of Law [sic]" will be filling an academic support position with one Krist*n Holmq*ist, currently at UCLA.

And part of her new job description "will be to help address the student body's bar pass rate."

I have uploaded a pdf version of the article, which otherwise requires a free registration to view, here. It's worth looking at, as the article contains more discussion with Boalt faculty (including remarks from Dean Shel*nski and Professors Sw*ft, and B*ndy) on the issue that this (admittedly lowly) 1L has seen.


And, speaking of frank discussion, the Boalt Briefs would like to pull on your coat about something for a moment:


In past years, the Boalt Briefs has offered a special bound collection of the year's issues. As this year's output has been embarrassingly small, it doesn't make sense to go through the trouble to create an elaborate binding. So, if anyone is interested in a full collection of the 2007-2008 run of the Briefs, please email me at with your name and locker number, and I'll do my best to deliver a reprinted collection of the year's four issues (plus the mock BBB page), attached together with a staple. I have a limited number of issues, so please email quickly if interested.


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Thou Shalt Count to Three, and Three Only

I guess current students got an e-mail about this, but alumni should know that there is an official memo on the name of our school. First, to all the law firms out there, please, please, update your associates' profiles. An example of the more egregious violations include:

"University of Berkeley School of Law" (for undergrad and law).
"Boalt Hall School of Law"

Second, at the risk of being petty, I'd like to point to commenter MikeM (scroll down), "Our official name is the University of California, Berkeley, School of Law." *Cough.*

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Wednesday, April 23, 2008

Goodbye grants, you will be missed...

The financial aid office has released offer letters on Telebears. It's official: if you plan to work at a firm, you will (most likely) lose any chance at a grant.

I don't feel this is getting enough attention. The $4k DE grant for summer public interest work is well-known among current and future students. But, given the financial aid grants were in the neighborhood of $9k, this new grant policy makes that $4k seem trivial.

Effectively, a job in public interest will now result in grants upwards of $13k [or more] from the school. I only say "or more" because the extra money that isn't going to the students working for firms will most likely be redistributed to the public interest kids as well.

Any thoughts?

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Straight From The Horse's Mouth: Spring 2008

This is the professors quotes thread for this spring.


Who the Heck is Joe Nation?

The following rather startling email, sent to the campaign of one Joe Nation, was cc'd to me this morning. 

To whom it may concern:

I got a call two nights ago from someone affiliated with a company called Peter Hart Research purporting to do a "survey" about a California state Senate race. The survey, it turned out, was actually a glorified smear-campaign targeted at Joe Nation. A good six or seven questions at the end of it recited a litany of impliedly disparaging things about Joe Nation, and then asked, "having heard X, Y, and Z, are you more or less likely to vote for Joe Nation?"

Frankly, I had never heard of Joe Nation, and wasn't even aware that there was a state Senate race in progress. But I thought that you should know that this was happening, and urge you to follow up on it. In the case of the particular survey that I took, I asked what Peter Hart Research was, and was told, erroneously, that it is an independent research organization. I know that that was erroneous because I subsequently had a conversation with a guy at Peter Hart Research, one David Drembus, who explained that their surveyor had improperly gone off-script, and that they are, indeed, a gun for hire doing work for one of Mr. Nation's competitors.

At the very least, I am appalled by the tactic of pushing information intending to be damning of a competing candidate in a forum designed to appear unbiased. At worst, I wonder if any state fraud laws, or federal election laws, may have been violated.

If you are interested in investigating this incident further, I would be happy to answer any questions you may have.

[A Boalt Hall Student]

A cursory Google search indicates Joe Nation is a Democratic Senate candidate for California's 6th Congressional District (Marin and Sonoma Counties).

And Peter D. Hart Research Associates, Inc., founded in 1971, describes itself as a "strategic research, not just polling or market research" firm.

04/24/08: Little update here . . .

I learned a great deal about polling this week, mostly from people who took the time to email me and explain the issues surrounding polling and testing of political messages. Turns out, it's far more complex than I made it sound. Frankly, it's far more complex than I understand. You can see I have redacted the push poll comment, and softened my admittedly confused position. Thanks to the four of you who took the time to educate me a bit.

Tuesday, April 22, 2008

Applause for John Yoo?

John Yoo closed his last formal constitutional law class of the semester today. Going in, I put the odds of perfunctory end-of-class applause at 50%. On the one hand, he’s an effective and endearing professor. On the other…well, you know – the electrodes-to-genitals thing.

It turns out that after a long wind-up of thanking us for the honor of teaching us, Yoo did get a nice round of clapping. From almost everyone. In a classroom in Berkeley. Yep.

(Although there seemed to be an almost-imperceptible hesitation just before the clapping, which was microseconds away from becoming awkward, I have no sense of timing or rhythm, so maybe it was just my imagination.)

I'm a good Democrat, but let's pause on the applause to appreciate the rage this will surely prompt among some on the far left. Just picture the apoplexy: Applause? For someone who should be fired or possibly shot? For a war criminal akin to Goebbels? For the person directly responsible for the worst crime of all: the precipitous drop in Boalt’s bar passage rates?! Mon dieu!

I don't want to make too much light of this. I basically think the policies Yoo helped instantiate were insanely misguided strategically and morally. But still. Why, in this bastion of Bizerkeleyism, did John Yoo receive applause?

What I think is going on here – if I may pluralize anecdote into data – is that most Boalt students have come to a few rough conclusions about Yoo. If I had to articulate the plurality sentiment at Boalt, it'd be this:

1. He’s a good prof. Not just in the sense of “students like him.” But in the sense that he’s teaching stuff correctly. That’s what’s so ludicrous about the suggestion, made by Slate’s Deborah Pearlstein and others, that he’s somehow flunking his academic duties by filling his students with one-sided propaganda. His class was scrupulously faithful to current doctrines on the foreign affairs and war powers, separation of powers, judicial review, treaties, executive appointments, executive privilege, and such. And about 10x more organized and detailed than certain other classes. Put it this way: if you want to learn con law for the CA bar (the “black letter” Pearlstein seems obsessed with), would you rather take it from Amar, HaLo, or Yoo? That’s what I thought.

2. He did wicked, wicked acts. With shoddy, shoddy legal work.

3. But the morality of torturing terrorists is an ambiguous and contestable idea – outside certain zipcodes in Berkeley, Chevy Chase, and Cambridge. As is the degree to which a strong executive is either normatively desirable or constitutionally sanctioned. So to demonize his facilitation of those doctrines is to see issues in absolutes that most people perceive in gray. Plus, give the guy a little credit for trying to serve American interests — at least as his superiors so (mis)defined them.

4. None of which is to excuse the very legitimate questions about professional ethics; the quality of the legal scholarship; the misunderstanding about the identity of the client; the blurring of the line between advocacy and neutrality; the validity of the “just taking orders” defense; the responsibility for the proximate results of his scholarship; the limits to academic freedom, etc .

5. But the answers to all those questions are not so clear-cut as to justify hounding the guy out of a job. Or refusing to clap if, for a welcome change, he does a good one.

Anyway, that’s the rough temperature of student sentiment I’m taking. And I draw it not just from the clapping – that’s a self-selected group of students willing to take his class (or suffer quietly for the great time-slot and the four units) – but from conversations with other students and reading this blog. Maybe I’m wrong. It’s just my informed opinion. It and $2.25 gets you a coffee at Zeb.


Hard Drives Fair Game at the Border

This SF Gate article discusses a recent Ninth Circuit holding. Apparently that there is no 4th Amendment violation when border patrol agents examine the content of travelers' laptops without probable cause reasonable suspicion:

Border agents would need grounds for suspicion before conducting a body search, but a "piece of property simply does not implicate the same dignity and privacy concerns as highly intrusive searches of the person," the court said.


A piece of property simply does not implicate the same dignity and privacy concerns as highly intrusive searches of the person???

First, yesterday's news suggests not everyone agrees that the long white finger is excessively intrusive--indeed, your friendly ER doc may be allowed to do what your border patrol agent cannot.

Secondly, why is it fair to conclude that the content of a laptop is not highly personal? What about privileged information, like medical records, attorneys' client files, or (closer to our hallowed halls) drafts of upcoming Boalt Briefs articles? I can imagine situations where, rather than give up the contents of my laptop, I would prefer to be subjected to a . . . wait . . .

Did I just almost say that?


Update: WSJ Law Blog picked it up, too. A commentator there asks, what about password protected information?

Thursday, April 17, 2008

Administration Response Email on Bar Passage Rate

Attached (in the comments) is the administration's email to 3Ls regarding last year's bar passage rate.

Essentially, the administration finds that class rank and bar passage are correlated. And they're looking at helping "those people" with a pilot assistance program.

So: what do you think of (1) the administration's response email; (2) the findings presented; and (3) the proposed action?

PS: did anyone actually attend the town hall meeting and have any insightful comments to share with those who did not attend? Here's an insightful comment: I bet there are now at least a few of you who wish you had attended, armed with Patrick's post on Telebears (see below)...

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Wednesday, April 16, 2008

Breaking UCB News: "Random" = Linear

Initially I thought I would need a couple hundred responses to confidently confirm or dis-confirm the TeleBears rumors.

But after about 120, the picture is clear. Painfully clear.

(4/17/08, 16:37. Thank you, Matt, for the graphic. Click to enlarge.)

Other resources (through 4/17/08):

Excel spreadsheet with all data (IP addressed deleted)
PDF of registration dates by law class
PDF of registration dates by undergraduate application
Link to the survey. (Helpful for interpreting the spreadsheet.)

The two PDFs include data from both 2009 and 2010, so they're a little jumbled. But the Excel document tells the whole story. It's true that there were some outliers (I'm sorry, but I remain politely skeptical that anyone has an appointment time between midnight and two AM) but oddballs notwithstanding, neither I nor the spreadsheet have any big surprises to share.

TeleBears Times are Allocated First by Class:

--The class of 2009 will register on the 23/24th
--The class of 2010 will register on the 24/25th

That shouldn't rub many of you the wrong way. A large percentage of you were comfortable allocating times by credits anyway.

What you will not like is this: whether, say, a particular rising 2L's registration day is the 23rd or 24th is not random. And it almost certainly never was. In fact, it is so glaringly un-random that I am flabbergasted anyone who actually knows could try to claim otherwise. I don't know who has been lying to DO, but I hope she stops by to kick their ass before she heads to Irvine. Here is the the breakout:

TeleBears Days Within Each Class:

Students who applied to UC Berkeley for their undergraduate studies have identification numbers substantially lower than those of us who did not. Even if a person was not accepted here for undergraduate work, their current student identification numbers are in the 1500xxxx range, compared to the 1990xxxx range from the class of 2010. On reasonable explanation is that denials of undergraduate admission created a record, which was re-activated by the law school application. (Another reasonable explanation is that there is a God, and He hates the rest of us. They're equally plausible.)

These lower numbers in turn correlate to earlier registration days -- people with identification numbers in the 1500xxxx range register on the first day of their class. People in the 1990xxxx range do not.

TeleBears Times Within Each Class:

Within each class, Telebears times correlate lock step to student ID numbers. The higher your number, the later your registration time. Every time. End of story.

But . . . . you knew that all along, didn't you?

Like most of you, I'm irritated.

My ability to experience a class with any of Boalt's celebrity professors is hamstrung by an arbitrary decision I made (or rather, didn't make) in 2000, when I began my college journey--namely, the decision to submit an application to Berkeley. Eight years later, CP II with B*ndy? Forget it. Evidence with Sw*ft? Yeah, right. Crim Pro with M*rphy? Nope.

I don't know if there is anything I can do about this right now, except to give a big shout out to the pointy-headed bureaucrats who have been collectively screwing an arbitrarily defined subset of Boalties for God only knows how long.

So, Pointy-Headed Bureaucrats: I don't appreciate you right now. Which, in case you missed it, is a polite way of saying something else entirely.


Maybe those of us at the tail end can can make a "Mod 13" or something. Since we'll be in the same classes for the next couple years, and all.

We can iron out the details this September . . . in Janitor Law.


If you have not completed the survey, please do so here. It will take only a moment, and as the commentary notes, more responses are merrier.

Well, statistically speaking, anyway.

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Supreme Court upholds use of lethal injections

From the Chron:

"The Supreme Court on Wednesday upheld the most common method of lethal injection executions, likely clearing the way to resume executions that have been on hold for nearly 7 months.

The justices, by a 7-2 vote, turned back a constitutional challenge to the procedures in place in Kentucky, which uses three drugs to sedate, paralyze and kill inmates. Similar methods are used by roughly three dozen states, including California."

The two dissents don't surprise me (Ginsburg, Souter). But the 7 Justice majority seems a tad higher than I thought it'd be. Any thoughts?

There is Something Ironic About Where I Now Sit

Speaking of surveys, we touched on this earlier issue last fall, but it is happening at University of Chicago Law: no more internet in class.

Discussion also at WSJ Law Blog.

According to the article, ten other law schools have already called to ask about the move. What are the odds Boalt makes that list?

Let's Out TeleBears!

Something about the TeleBears Phase I appointment times is fishy.

And unless you work in the Registrar's office, DO's office, or on Pluto, you know EXACTLY what I am talking about.

The truth doesn't have to be a speculative matter, and it doesn't have to be taken as an article of faith. Whether students' TeleBears appointment times correlate to their undergraduate application/enrollment at UC Berkeley is, in fact, an empirical question.

So let's find out, shall we?

If you are a current student at Boalt, please take this very short, seven question, multiple choice survey. It will take about 20 seconds of your day. 40 if you take it twice (but please don't do that). As long as there are enough participants, the results will put this question to bed.

Lastly, if you are not currently a Boaltie, feel free to look at the survey but please refrain from actually answering any questions. We like you and all, but your input on this one will screw everything up.

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Tuesday, April 15, 2008

Bitter? Who's Bitter?

Obama's been criticized for saying that small town Americans are bitter and angry. McCain and Clinton have jumped on these statements, claiming that they show how out of touch Obama is.

I guess maybe I fall into the category of an "elitist", as I'm here at Boalt getting a top tier legal education. But, as someone who comes from a small town, someone who's parents struggled to make the mortgage payment and the car payment and the daycare payment, I think he's right. We are bitter.

We're bitter and angry that our insurance companies have decided to stop paying for life saving drugs rather than negotiate with big pharma or take a profit cut. (See Patrick's post below.)

We're bitter because the price of food is going up while Congress continues to
subsidize corn for biofuel production.

We're bitter because we're losing our homes due to foreclosures while the Fed bails out the companies that got us into this mortgage mess in the first place.

Question to the N&B community at large:

Did he get it right?

Or is this just another failed attempt by intellectuals to explain small town America?


How the Drug Czars Are Squishing the Poor People

While other bay area bloggers are busy screwing up this country's future, something that actually matters is passing unnoticed by all but the very unfortunate.

You may or may not have seen the recent NY Times article about changes health insurers are making to prescription copay policies. Private insurers, taking a cue from Medicaid, are switching from flat-rate copay schemes to percentage based schemes. Essentially, the more a drug costs, the bigger the copay. According to the Times:

No one knows how many patients are affected, but hundreds of drugs are priced this new way. They are used to treat diseases that may be fairly common, including multiple sclerosis, rheumatoid arthritis, hemophilia, hepatitis C and some cancers. There are no cheaper equivalents for these drugs, so patients are forced to pay the price or do without.

Sophistry, bullshit and befuddlement!

First, Aetna knows exactly how many patients will be affected. Trust me, this is not a shot in the dark. Second, the thread that runs though all of these conditions isn't that they are "fairly common" among Americans. It's that these patients (1) cost more than they pay into insurance, and (2) tend to consume more medical services across the board. The truth is this country spends FAR more money on hypertension, allergies, or high cholesterol, all of which are sometimes treated with expensive drugs. But the new pricing scheme doesn't touch them. Why? Because taken as a whole, cholesterol treatment is profitable (it usually doesn't exceed the cost of a premium) and common (the few patients who consume expensive cholesterol drugs are healthy and vocal enough to scream bloody murder if their copays change).

The treatment of MS, hemophilia and hep C, on the other hand, is not profitable. And those paints aren't vocal. They're sick.

Does anyone really think it is a coincidence that patients with conditions like MS, Hemophilia and Hepatitis C also tend to be the patients who *gasp* require more medical services in general? The new pricing scheme is not a way to "curb rising drug costs." It is a way to discriminate against people with chronic disease, who are not fortunate enough to be in a position to self-advocate.

The immediate effect of the change will be that patients with unprofitable disease will either go bankrupt trying to pay, or stop taking the medication. The ultimate effect will be that patients with chronic AND unprofitable disease leave the health system (a euphemism for dying) more quickly, and cease to be a profit-suck.

There. I said it.

Monday, April 14, 2008

Lonely Little Fredo

Alberto Gonzales can't find a job. Instead, he has been forced to hit the lecture circuit. Which, as it turns out, isn't a bad racket. He pulled in $191,000 last year, billing fees in excess of $30,000 apiece from places like Washington University in St. Louis, Ohio State University and the University of Florida. Student leaders at Pomona college, on the other hand disinvited him after public outcry, concluding that Fredo was not worth the money.

No kidding.

Who spends thousands of dollars for an hour of time with an attorney who is also so absolutely disgusting that no one in the legal market will touch him?

Saturday, April 12, 2008

Everything is Bigger in Texas

Would you like to do something educational this fall?

The Texas courts anticipate being overwhelmed by what at least one journalist has called "the biggest child welfare case in Texas history."

Tom Vic, partner at the Texas firm Vick Carney & Smith, is seeking the names, addresses and phone numbers of family lawyers willing to volunteer as ad litems for the 400 children who were removed from polygamist compound in Eldorado. According to Vic, the case is so large that the 120 lawyers in San Angelo, the city with the most attorneys near tiny Eldorado, can't possibly handle it.

Granted, none of us are lawyers. But I'm guessing folks up 'round Eldorado would be much obliged for any help they can get -- even if that help came from Berkeley!

And far be it from me to over-speculate, but it seems like a fine public interest oriented law school might just jump at the opportunity to grant a motivated student a handful of credits credits and some financial aid to support a "real world educational experience," which also happens to fall squarely within the public interest. (Think: CLO on steroids. With accents.)

Now that I think of it, the press release wouldn't look too shabby in the class of 2012 admissions brochure, either. Maybe some candid close-ups to hang in the hallway . . .

Implications of Legal Ethics

This AP article isn't new news, but it's well-written, includes color photos, and arrived on my doorstep today. Here's a snip for your thoughts:

An innocent man was behind bars. His name was Alton Logan. He did not kill a security guard in a McDonald's restaurant in January 1982.

"In fact," the document said, "another person was responsible."

They knew, because Andrew Wilson told them: He did it.

But that was the catch.

Lawyer-client privilege is not complete; most states allow attorneys to reveal confidences to prevent a death, serious bodily harm or criminal fraud. But this case didn't offer that kind of exception.

So when Andrew Wilson told his lawyers that he, and not Alton Logan, had killed the guard, they felt powerless — aware of information that could free a man they believed to be innocent, but unable to do anything with that knowledge. And for decades, they said nothing.

Sounds like a pretty heavy burden to bear. But is there any alternative?

Friday, April 11, 2008

Academic Freedom, Horrible, Horrible, Freedom

Predictably, there's some discussion going around in the moonbeam circles about firing Prof. Yoo. Prof. Leiter's reaction is exactly where mine is. Prof. Lederman is a bit more reserved, but offers a great perspective as a former OLC lawyer and current academic (and prolific and insightful blogger). You can also read Dean Edley's memo on the matter at Prof. Lederman's post.

I've said it before, and I'll say it again: I love being a liberal, but I hate liberals. If you're for freedom and justice, then that includes academic freedom where the exchange of ideas, even ones you disagree with, is a virtue. That Dean Edley had to articulate the basis for protecting tenure is a tragedy in and of itself. If you don't think that the United States should be torturing anyone, vote, donate, do something in November. If you think we should be torturing, stay home. But attacking one of the most sacred rights makes you look foolish and makes the job of those who agree with your views all that harder.


Thursday, April 10, 2008

Looking Forward

**Invisible hand moving up, now that the topic has matured to relevance. Click here for fall course list. (HT to Matt, who found the list.)**


A helpful little bird shares via email that the registrar's office will make the fall 2008 class schedule available online this Friday, April 11.

I realize we do not yet know the details of the fall schedule, but because Tele-bears Phase I appointments are looming (mine, for example, is Monday the 25th*), it might be helpful to open a classes/professor/schedule thread now.

This 1L is considering Tax, Civ Pro II, Professional Responsibility, and something that satisfies that mysterious writing requirement.

For my part, I am enjoying Structural Issues with JY, and ALR with BB.  It is useful in the same vein as LRW.


*Correction -- Phase I Opens Monday. Like last semester, my actual position appears to be at the back of the line. Which relieves the burden of urgent decision making, at least for me -- like last semester I'll sign up for everything and wait to see which wait-lists I survive. 8:30 AM, here I come.

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The Dean O Bomb

Wow. Speechless.

Dean O has announced that this will be her last year at Boalt. Beginning next year she will be the new Assistant Dean of Students Services and Director of Admissions at the brand-new law school at UC Irvine.

Full email posted in the comments.


Wednesday, April 09, 2008

Play! Win!

Announcing Nuts & Boalt’s first-ever “Try to Write a Worse Sentence Than Chancellor Birgeneau” Contest! Everyone can play. No skill required. In fact, it’s actively discouraged.

Here’s what we’re trying to top—a sentence from his recent email to the entire UC community about…well, I’m not sure what it’s about. Something about the diverse attainment of diverse diversity:

A five to 10-year initiative for progress on diversity, equity, and inclusion campus-wide has begun with the launch of a strategic planning phase to set specific goals, objectives and resources. This initiative…will focus on creating the sustainable, institutional change necessary to embrace the core values and practices of our University encouraged by the Regents in the UC Statement on Diversity.

The full email, in all its discordant and tortured glory, is reprinted in the comments for those alums fortunate enough to no longer receive administration communication.

The entire email is a sort of Office Space-meets-the-Federal- Register type of rhetorical disaster. I half-expected to see an accompanying award for Achievement in the Field of Excellence. I mean, what the fuck is this thing actually about? I have no clue. And that's after spending 5 minutes of my life investigating that I now desperately wish I had back.

In formulating your own entry for worst possible sentence (from a UC administrator), I encourage you to draw upon personal encounters with terrible, terrible writing—such as sitting in LRW, reading USA Today, or perusing a Souter opinion.

Here’s my entry:

The core focus of the program’s core will be promoting inclusion, discouraging exclusion, and achieving the goals set by the objectives.

There’s actually a great deal to say about the Chancellor’s email—about the gratuitous bureaucratese that paralyzes public institutions; about ‘diversity’ as the mindless panacea for all educational ills; about the totemic figurehead role played by University presidents these days; about the expenditure of taxpayer money on useless and overlapping administrators; about the decline of writing and rhetoric instruction; about the reification of feelings over knowledge as the purpose of higher education—but, honestly, that’s all pretty much said by the Chancellor's sentence itself.

PS – Dean Edley’s wonderfully styled, detailed, and slightly subversive emails—one of which is reprinted in the thread below (I mean, come on, it’s got a joke about commodities prices in the third sentence—how cool is that?)—seem to be the exception that proves the rule.

Building Renovations Update - Open Thread

DE sent an email (which I have copied into the comments of this post) regarding building renovation plans.

Your thoughts...


Tuesday, April 08, 2008

It is all about the fighting...or negotiating.

Outside Competition tryouts for Boalt's Moot Court, Trial and ADR teams begin next week. All of these programs are excellent ways to boost your skills, make close friends, and kick the crap out of Hastings (hopefully). It is also an excellent resume builder---employers value Moot Court experience highly.

For information, seek out the flyers outside 377 Boalt or contact

***Edit: See "BOA" post below for info as well.***

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Monday, April 07, 2008

Humanitarian Relief or an Abuse of Power?

So far, 401 children have been taken off a polygamist compound and into legal custody by the state of Texas. The raid was prompted by a call from a 16 year old girl - but if the police have found her, they haven't released that information to the media. The state has said they will put the children into temporary care - but they don't have enough shelter space or foster parents to provide care for all these children. Which makes me think that the authorities in question didn't really think this one through.

Court proceedings to determine if the children can be removed doesn't begin until Monday. Which means that 500+ people have been taken from their homes because of a phone call by a girl who hasn't even been found or identified. I question whether there was any abuse occurring at all, or if this is just persecution by the Texan authorities because they disagree with the way these people want to practice their religion.


Lil' Punks!

Question: Where did the (oversized and obnoxiously charming) pictures in the lobby go?

Answer: After multiple vandalism incidents, they were removed to a safe place.

Sunday, April 06, 2008

A Striking Contrast

The California Senate just approved the appointment of two men to the California Horse Racing Board (CHRB).

Appointee John Harris has owned thoroughbred horses since 1958 and is a prominent breeder of racehorses. He was elected a director of the California Thoroughbred Breeders Association (CTBA ) in 1974, served as the organization’s legislative chairman for 20 years, and was twice elected CTBA president. He served as CHRB chairman in 2003-04. He also has served on the boards of the Breeders’ Cup, Thoroughbred Owners of California, Grayson-Jockey Club Research Board and the Center for Equine Health/UC Davis Advisory Board.

The second appointee is Jesse Ch*oper. Ch*per is, umm . . . well, he teaches Constitutional Law at the University of California, Berkeley.


Saturday, April 05, 2008

Cal Bar Prez Takes Aim at Billable Hours

Jeff Bleich, former Boaltie and current President of the California State Bar disfavors billable hours.  He recently offered up some compelling reasons for is position, in what the WSJ Law Blog dubbed a "manifesto" calling for reform.

First, Bleich offers a professional angle . . .

Lawyer/author Scott Turow has captured this conflict well by describing what a truly candid disclosure to a client might sound like: “If you hire me, I promise that my billing system will reward me for solving your problems at the slowest possible pace, with as much duplication of effort as possible, and where I will face economic penalties for exercising any judgment that limits or focuses our work. I will, under this system, have strong incentives to embrace any opportunity to engage in discovery wars where the work is the easiest and the financial rewards are the greatest. And you can be assured that every member of my team will have a real financial inducement to exaggerate the amount of time they devote to every task.” . . . The problem with this system is that even if lawyers are not corrupted by it, it still casts a shadow over the choices we made. 

Second, he offers a human resources angle . . .

Young lawyers have fewer client contacts, less ownership of a case and fewer opportunities to actually solve a problem. As they advance, they aren’t asking the questions that will allow them to one day lead their firms and the profession: what experience am I getting, what sorts of colleagues are we developing, what is our culture and philosophy? Instead they think more and more about profit targets, hours targets and what their exit strategy is.

I sympathize. The number of hours spent on a project is perhaps an indicative, but hardly a conclusive, measure of the work's quality. On the other hand, I'm not sure I can think of a better incentive structure.

And for that matter, Bliech might not be able to think of one either: he suggests 1700 hours (as opposed to 2100) is a more reasonable number . . . and . . . yet . . . according to NALP . . . his own lawyers at Munger, Tolles & Olson appear to clock in at around 2000 hours!

To point that out may have been a cheap shot on my part, because Bliech only one of many partners in his firm. But it underscores part of the problem -- a big reform like Bliech proposes seems unlikely to emerge from within the BigLaw community itself. That has nothing to do with the merits of the proposal. It has to do with whose interests the present scheme serves.

Think: clients partners in law firms.


Thursday, April 03, 2008

Happy Admit Day

Hey! Are you an admitted student?

I was one of those too, a year ago.

Please don't tell me you are pacing around some hotel room here in Berkeley, frantically researching the school, and cramming for the big day tomorrow . . ?

Relax already, it's not an interview -- we already know we want you, so if anything you are interviewing us!

Here is abetter idea: get off the computer, come down to Thalassa, and have a drink. You can even look for me, if you want (I look like this*) and I would be honored to try and answer any questions you have, or put your mind a little bit at ease about law school, or Boalt.

If you dont' make it (I didn't come to Admit Day either), then consider this an open forum for discussion. If you root around here, you'll likely find wiser words than mine here, anyway.

*Too late, dude! The bar is closed.


Potholes and nonneutered dogs

Here's an excellent discussion in the Chron of the rising concerns among some Berkeley citizens and businesses that the City has lost sight of its real purpose.

From the article:
Berkeley is finding that having its own foreign policy isn't cheap. The city's recent dustup with the U.S. Marine Corps has so far cost the city more than $200,000, while businesses say they've been slammed by related protests.

And that's on top of the $1 million the city spends annually on domestic and foreign policy matters hatched by its 45 citizen commissions, which outnumber those in virtually every other city in America and debate everything from regime change in Iran to the plight of nonneutered dogs.

Thank heavens there isn't anything else to worry about in Berkeley.


Wednesday, April 02, 2008

Waive Goodbye to Environmental Law

Alright, back up the moving trucks. Yesterday the Department of Homeland Security issued itself two waivers to enable itself to completely bypass all environmental laws to construct a 470-mile chunk of border fence through a vast section of the Southwest. (See here, here, and here for coverage.) The authority for these waivers comes from Section 102(c) of IIRIRA as amended by the REAL ID Act of 2005. (Note: It is unclear which law is being enforced. Chertoff cites to IIRIRA for his authority, but I have seen the Real ID Act cited elsewhere.) This law allows the Secretary of DHS to "waive all legal requirements such Secretary, in such Secretary's sole discretion, determines necessary to ensure expeditious construction of the [border fence.]" Here is Chertoff's statement regarding his use of the waiver.

Predictably this action has been couched in terms of national security needs. While I do think there are legitimate national security issues related to border security, it is difficult for me to believe that this is anything more than xenophobia wrapped in the flag. But my political leanings aside, what really outrages me here are the legal issues. How can the Secretary of DHS, an Executive appointee, waive Congressional laws? Lawmaking (and lawrepealing) is the job of Congress, and they cannot delegate that duty to the Executive. Moreover, this waiver right is unlimited. Not only can Chertoff waive federal and state environmental laws, but he may waive all legal requirements in his sole discretion. Child labor? Health codes? Overtime pay? Why the heck not!

A couple of environmental organizations have taken up the cause, challenging section 102(c) as an unconstitutional delegation of the legislative power and a violation of Art. 1, Sec. 7 of the Constitution. (Cert petition and more info; note that this lawsuit was filed last month in response to other DHS waivers). I hope the Supreme Court takes the case and declares 102(c) unconstitutional. As far as I'm aware, we don't give such unfettered discretion to any other government official. It is ridiculous enough to allow a single person to overturn federal laws--allowing it for the sole purpose of building a border fence is simply beyond comprehension. So, who's up for some hockey, eh?


Tuesday, April 01, 2008

Re. That Letter from UC's Police Chief

I am impressed with UC Police Chief Victoria Harrison's letter to students today which, due to it's length, I have reproduced in the comments.

My personal view (perhaps not shared by everyone here) is that as a body of civil servants, law enforcement officers often deserve more credit than they receive. Chief Harrison in particular deserves some credit for this one: she didn't have to take the time to write the lengthy letter, to make her department accountable in the public forum, to invite the criticism she is sure to get from someone, or to go out of her way to make her name the target of that criticism. The letter, as she says herself, describes some of the complexity that arises from the conflicting values which her office is asked to balance every day. While I'm not sure I agree with all of her analogies or assessments of the situation, her tone suggests UCPD is doing the best it can.


That's all I have . . . so feel free go ahead and tune back into the decidedly unpleasant J. Y*o bashing session that seems sure to unfold in the post below.

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Hotel Guests

In 2004, just after I got my acceptance letter from Boalt, Prof. Yoo published an op/ed in the LA Times where he claimed that we shouldn't treat terror suspects captured on the battlefield as hotel guests. I wrote a letter to the editor (published) with a zinger: "The Hanoi Hilton wasn't exactly a 5-star hotel."

That op/ed takes on a new meaning today. Prof. Lederman (at Balkinization) has posted copies of the 2003 Torture memo here and here. The 2002 memos, previously released, related to the CIA's use of interrogation techniques. This one deals with the military. Off the top of my head I couldn't see any differences in the rationales, but Lederman thinks this one is far worse. Stay tuned.

I wonder what's more American, using Super Delegates during a party convention or beating the crap out of a prisoner?

UPDATE: Vanity Fair has a timely story by Phillippe Sands, who debated Prof. Yoo on Halloween 05 in SF.

I should add that my criticism is limited to the arguments and positions of the memos, op/eds, etc., and not Prof. Yoo the professor.

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Subtle changes to notice on N&B

In December, Armen threw out the possibility that N&B may seek future advertising revenue in order to maintain the quality of the site. To our surprise, the response was overwhelmingly positive (as seen in comments to the post).

Beginning today, N&B is launching a new paid advertisement service intended to pair our sponsors with relevant web links. You will now see Google-powered "web clips" embedded at the bottom of each future post. Anyone who uses Gmail should already be familiar with this form of advertisement.

On behalf of the entire N&B production staff, I would like to express my hope that this change will improve your experience with our site.

I'd also like to ask that you please be patient as we work through the kinks and embark in this new and exciting direction!

- The N&B Editorial Committee

[Web Clip] US News and World Report - See our recently released 2009 rankings! Where does your law school rank?

For more of today's April Fools' Day gags, click here [warning: link is for EXTREME procrastinators only - may zap countless hours from your day].