Thursday, July 31, 2008

"Don't You Ever Get Tired of Being Wrong All the Time?"*

I have lost track of the court decisions rebuking this administration. But the latest one is fairly important in terms of restoring the rightful constitutional balance between Congress and the Executive. Of course, this decision and the entire set of facts underlying it illustrate my belief that the constitutional design of separation of powers is defunct and incapable of functioning unless the opposite parties occupy the elected branches.

Without further ado, here's my favorite benchslap line from Judge Bates:
In the thirty-four years since United States v. Nixon was decided, the courts have routinely considered questions of executive privilege or immunity, and those issues are now “of a type that are traditionally justiciable” in federal courts, United States v. Nixon, 418 U.S. at 697(citation omitted), and certainly not unprecedented, as the Executive contends.

Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law.

The Volokh Conspiritors are analyzing this significant decision rebuking Bush's warped constitutional theories as quickly and thoroughly as the purported University of Chicago tenure offer to Sen. Obama.

*Homer: "Don't You Ever Get Tired of Being Wrong All the Time?"
Marge: "Sometimes"

Bonus points if you name the episode without googling.


Tuesday, July 29, 2008

The Other Red Menace

You know, I sort of hate to even go there.  I feel compelled, however, by an exchange in the thread below, wherein Armen throws down a gauntlet:
Patrick said . . . .

ALR saved my ass this summer. Knowing that something is in the Westlaw database, but not knowing how to locate it, is a maddening experience. Especially when you go through that experience at work. I'm pretty thankful I took it.
7/29/2008 11:39 PM

Armen said . . .

You should probably use Lexis then. Plus they have better giveaways. Thoughts on this, Patrick?
7/29/2008 11:42 PM

My first thought is that he is trying to bait me.  But I can't resist pointing out that Armen is wrong, because, while both companies are cultish, cliquish, and evil, Westlaw is slightly more pleasant.  When you weigh all the factors, I think you have to agree.

In Re Fall Courses 2008

**Moving up, as TeleBears Phase II is upon us**

In the tread below, Anonymous asks:
Can we please have an open thread about classes? My phase II is coming up and I'm still really undecided about stuff. I'm interested in:

(1) any info on mediation with m-rshall? she has no posted reviews, so I'm skeptical.

(2) con law structural issues - worth taking for someone who is NOT a con law junkie?

(3) the wills and trusts takehome - hard?

(4) thoughts on classes with samu-lson in general?

Yup. Here is your thread.

You may also find some useful information on this spring's fall courses thread, and at the Boalt Professor Review blog.

FWIW, my answer to (2) is, "Yes." I'm not a con law junkie. But I enjoyed the hell out of that class, partly because the professor is a gifted educator, but mostly because I have a deeply rooted and intense personal interest in dairy milk -- that vast, salubrious battlefield of Commerce Clause jurisprudence.


Monday, July 28, 2008

Did Boalt Pass the Buck on Yoo?

The Daily Californian ran an article in yesterday's sports section entitled, Bear Naked: Getting to Known John Yoo.

The author of the piece, which surveys a two-hour International House chat with Yoo about his experience as a sports fan in Washington, begins by noting, "[I]t's entirely beyond my scope to discuss the moral and technical merits of the unitary executive theory. What I did learn, through a two-hour conversation at the I-House, is that Yoo is an interesting man and that, well, he's a man."

Both of those sentences make much-needed points: Con law is hard, and people are human. Those points are much-needed in the light of the fact that the most vigorous commentators on Yoo are also the people who know the least about the issues, and who neglect that Yoo is, after all, a human-decision maker. Just like the rest of us.

Having spent last spring in Yoo's class, having taken a personal interest in the issue, and having gained a few months of perspective, I would like to share one thought about Yoo, and our law school.

My thought is that Boalt dropped the ball. Think about it:  John Yoo, a tenured professor at Berkeley Law, took a political bullet for the President because he was the President's lawyer.  Talk about  a teachable moment in legal professionalism! Academic freedom; service to country; legal ethics; politics; war; tenure -- all these issues were floating around our hallowed halls last spring, yet if you asked most of our professors whether Yoo made the correct ethical or moral decision, you would have had better luck listening for a pin drop than an answer. In substance, it matters little to me what Boalt professors and faculty think about Yoo or Bush or torture.  But the fact that they bit their lips and held their tongues in front of 800 soon-to-be lawyers seems disappointing. What could have motivated that silence? Political nonchalance? Adademic courtesy?  Decorum?  What kind of message did Boalt send to a rising generation of America's attorneys? That niceties are more important in the law than frankness or moral compass?

Maybe I've been party to the wrong conversations; maybe I missed the big meeting. But I doubt it. This issue involved a Boalt professor's central role in international politics, made national headlines and kept pundits wringing their hands for weeks. Yet, as my learned brother Earl Warren once remarked in passing, all we got was a letter on a website and a few comment-threads on this blog.


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Sunday, July 27, 2008

Sunday Lexico-Neuroticism

Welcome to installment number two of the Sunday Lexico-Neuroticism series. This week's cringe is induced (actually, more like inadvertently approved) by Judge Patel, of our very own Northern District of California:
The proper focus is upon the detention faced by the petitioner and whether the same is a due process violation, not whether petitioner is likely to succeed in his appeals. A contrary rule would punish the petitioner if he chooses to permissibly appeal the decisions made by the IJ or the BIA. This Hobbesian choice, whereby petitioner must “choose” to stay detained indefinitely if he wishes to appeal an erroneous decision or accede to the IJ's determination and depart his adopted home, violates due process guarantees. Singh v. Sepulveda, WL 2242215 (N.D. Cal. May 29, 2008).
Unlike "concerted," this one is pretty glaring.  Personally, it really grates on the ol' nerves; it's like last spring's "Forgetting Sarah Marshall" advertising -- after the first sighting, you begin to see its twisted little face everywhere.  Which means that if this particular barbarism didn't get under your skin before this post, well, it probably does now.  

If the answer hasn't been disclosed on Monday, I'll share it with you.

Massive exception:  the foregoing is unlikely to apply to those of you who will willfully enter that 9th level of hell tomorrow Tuesday morning -- you don't have the capacity for a single new fact, nor, I venture, could you be an iota more tightly wired.

I might have been tempted to blurt some inspiring remark, but frankly, the whole affair looks too damn awful.  When the dust settles, as we Idaho Vandals are given to say, "Win or lose, there's always booze."


Saturday, July 26, 2008

So. What's Your Favorite Bad Legal Argument?

I have been conducting research in support of a motion for summary judgment. The motion will oppose what is, arguably, the most impotent legal argument of the year. (No, not "important."  Impotent. As in, weak, feeble, flaccid, impuissant, stupid.) I don't feel comfortable outlining the story here (it's a matter of public record, but still . . . I'm a mere summer), but I do feel comfortable sharing a case that decided a very analogous issue. The Plaintiff in Pulse v. Hamer, 8 Or. 251 (1880) argued essentially as follows:
It is true that I allege Defendant breached an oral contract that is void because it falls within the statute of frauds.  However, our negotiations included an oral agreement to sign a written agreement.  That oral agreement does not fall within the statute. Therefore, the court should order specific performance of our oral agreement to sign a written instrument. Then it should award damages for Defendant's breach of the written contract.
Add a dash of fraud, sprinkle some reliance, whip to a frothy lather, and voilà!  You have cooked up and served the complaint that is now before me.

It seems very likely that Plaintiff here will not survive summary judgement (and I'd better hope no -- if this goes to a jury, all bets are off!) but it got me thinking: what's the weakest, but real, legal argument you have ever heard?  (HT to Profs Law Blog for the idea). Please play along in the comments section, according to the following rules:

(1) It must be a position asserted in court (orally or in a filing), not just a brainstormed argument from early in the pre-litigation stages.

(2) It must be an argument pressed by a lawyer, even if the lawyer was just making the bad argument because a client insisted.

(3) It must be a case that you worked on, that you saw personally (as a lawyer, party, clerk, or bystander in court), or that you can document with a citation.

(4) This rule is redundant with (2), but just to be clear, your argument can't be anything from the mouth a peer in a law school class. That would be cruel. It would also be like shooting ducks in a barrel.

Nation of Regulation

Yesterday, Governor Schwarzenegger signed a bill banning the use of trans-fats in restaurants and baked goods. California now joins the cities of New York, Philadelphia, and Stamford in controlling what sort of fat people can and cannot put into their bodies. Congress is currently considering passing a bill that would give the FDA the authority to regulate the content and marketing of all tobacco products. (For those of you who took Frick*y's legislation class, the bill would be legalizing the 1996 rules that the Supreme Court struck down in the FDA Tobacco case.) However, as has already been much discussed in this blog, in Heller v. D. C. Commissioner, the Supreme Court struck down the D.C. ban on handguns.

Are we just going through one of those upswings in regulatory cycles that seems to happen when the economy starts sliding downhill? It doesn't seem so, since neither the trans-fat nor the tobacco regulation would have much effect on the economy. Is the main difference that the right to own guns is found in the constitution? I would suspect not. Instead, I think the rationale behind the current regulations (although politicians will never admit it, and probably wouldn't even understand it) is the Puritan nature of this country.

Trans-fats and tobacco can kill you - but only if you make the choice to ingest those substances. Guns can kill you as well - but gun regulations are meant to curtail homicides, not suicides. Despite the separation of church and state, this is a religious nation, and it comes through most insidiously not in creationism or biblical sculptures but in an overwhelming belief that people must be protected from harming themselves. Maybe its time for us, as a nation, to take a little more self-responsibility and worry more about protecting ourselves from those who want to harm us and less about protecting ourselves from our own choices.

Wednesday, July 23, 2008

Official Bar Freak Out Thread

I guess it's officially starting -- that time in every law student's life when he or she melts down psychologically as the bar impends. In such times of trouble, Boalt students have for generations turned to the elders of the Nuts & Boalts community for soothing assurances and not-a-little-bit of derision.

A commenter below trying to hijack my Calabresi rant posted some questions that appear as good as any, so I'll repeat them.

1) Is it normal to never feel prepared?
2) Were there any essays on the actual exam that you had no clue about, and and how did you tackle those questions? Did you pass?
3) How much did you memorize the elements of each concept? Did you recite the BarBri answer, or put it in your own words?
4) People who didn't pass: any clue why?

I suspect the answers to those questions will be more ameliorative than informative, but maybe that's what we need.

Personally, as someone suffering right there with you, I've grown to favor the late Milton Berle's advice on the bar exam: "Remember, you don't need to pull it all out. Just enough to pass."


Tuesday, July 22, 2008

Ding Ding Ding!

We have a winner, for the most laughably stupid article written by a law professor during the election season! Steven Calabresi, a co-founder of the Federalist Society, ruminates in the Chicago Tribune about Barack Obama's youth, the age requirement to be President (thirty-five), and liberal theories of constitutional interpretation. But then, my use of polysyllabic words in the prior sentence evinces a complexity to Professor Calabresi's argument that is completely lacking. His main insights seem to be:

(1) If liberals think "equal protection" is an indefinite term that should evolve with history, how come the number "35" doesn't evolve too!

(2) Obama is a socialist who will meet with dictators!

Honestly, if this is the brain trust behind the McCain campaign, the left has nothing to worry about in November.


Lawyers, Guns, and Money. Yes!

This summer the U.S. Supreme Court ruled squarely under the Second Amendment for the first time in 127 years.

Smith & Wesson is celebrating the occasion with the Heller v. D.C Commissioner Commemorative Revolver:

"We at Smith & Wesson are pleased to honor the six original plaintiffs in the case while at the same time offering to consumers a firearm that will help in the preservation and protection of the Second Amendment," said Tom Taylor, Vice President of Marketing for Smith & Wesson.

Wait, what?

Does Mr. Taylor expect owners of the Heller commemorative revolver to start shooting people in furtherance of the Second Amendment? Will intruder-shootin', freedom lovin' Americans be able to pay for it with their tax refund checks? Exactly how much pleasure may I extract from pointing fingers at the clowns on both sides of this circus parade, before I become a bad person?


CLR vs. Lysol

I can certainly appreciate that anxiety/anticipation that is building up in rising 2Ls regarding CLR. But I want to offer this word of caution, echoed in years past by my co-blogger Tom Fletcher. It's a great feeling to know that you are on Boalt's flagship journal, but it's not the end of the world if you're not. Frankly, it opens up your calendar to do more, exciting things. I think journal work is very useful. Thankfully, Boalt has plenty of opportunity for everyone to gain exposure to that work, sometimes in very different contexts.

In sum, I know the comments are going to turn into a clusterf*ck with dejected, self-loathing overachievers actually coming to grips that they are not on CLR. But cheer up. It doesn't hurt you in OCIP, and it's not a magic ticket that you need to get punched on your way to clerkships.


Sunday, July 20, 2008

Sunday Lexico-Neuroticism

Wandering the N&B archives recently, I tripped over Isaac Zaur's weekly "Sunday Literary-ism" posts.  Click here and scroll down -- they are a pleasure.  For the rest of this summer (and perhaps beyond) I will attempt to follow in his footsteps with my own weekly offering.

Mine, however, shall spotlight abuses of the English language, perpetrated in the course of paid practice, by justices, judges, or lawyers. Like adultery, foot-funk, and alcoholic fathers, the first step in overcoming slovenly legal prose is to acknowledge and learn from its presence.  I'm not demanding you change your own usage in light of these posts, but my guess is that once you think about it, you'll want to.

To keep me on my toes, I will limit myself to atrocities I have encountered in the seven days immediately preceding the post. To keep you on your toes, I will not share what is wrong with the quoted passage.  And I promise, there is something wrong; this isn't 'Nam, this is language. There are rules.

This week's cringe is brought to you by Justice Rehnquist, of the United States Supreme Court:
[Joeseph] Dacies made a concerted effort to speak with people who were familiar with competent black bricklayers and then hired a large number of black bricklayers. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 581 n.9 (1978).


Saturday, July 19, 2008

Boalt and the Bar Exam

Most of us know that law school, at least the Boalt variety, does not specifically prepare you for the Bar exam.  However, we also know that Boalt has recently been increasingly concerned with its students' bar passage rates.  But how serious is Boalt about this problem, if you want to call it a problem?  

I think, by far, the most productive thing Boalt can do towards producing more bar exam-ready students would be—and yes, I know this is drastic—to REQUIRE all classes that are on bar exam subjects to be CLOSED NOTE, CLOSED BOOK.  Get angry now.  But keep in mind I am not actually suggesting this as a policy; I am only theorizing that this is would be the single best thing Boalt could do to prepare us better.

And really, I get it.  Law school at Boalt is pretty damn easy when all you have to do is take a few days to paraphrase entire commercial outlines and show up for an exam.  But after three years of being able to do that to pass exams, we gain almost no practice for what the bar exam requires of us: the ability to spit out glib answers without being able to reference our notes. 

Maybe some other students don't find this difficult, and have no problem transitioning from a deep, specific, note-enhanced type of writing to a shallow, note-free bullshitting style of writing.  For me, this is the only really hard part of studying for the bar, and if I had taken my torts, crim, contracts, property, evidence, crim pro, civ pro, etc. exams under the same conditions, I am sure that it would not have been so stressful this summer.

This is not to say that the tradeoff would be worth it.  After this is all over, I am sure those who pass the exam will say the added stress for 2 months over the summer did not outweigh the benefit of having almost all open-note or take home tests throughout law school.  But, as an institution, perhaps Boalt might have a different calculus?

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The Marvels of the Electronic Age

If John McCain is tired of the old-person jokes, perhaps his campaign shouldn’t pedal ludicrous arguments like this one – that Obama can’t properly form an opinion about Iraq until he has visited it in person.

I’m sorry, but is John McCain aware we no longer have to send galleons around the Cape of Good Hope to communicate with the Orient? In this marvelous new age of the telegraph and the telephone, people can actually correspond across thousands of miles – exchanging information in real time! You can learn about -- and form a complex opinion about -- places beyond your line of sight.

McCain should make use of these amazing new technologies. No longer must he rely on carrier pigeons to communicate with his campaign staff back in Arlington. No longer must he travel home to Arizona to confirm it is still in the Union.

On the other hand, perhaps this ‘how can you understand something until you've seen it in person?’ reasoning could be uniquely helpful for law students. For instance:

-- How can the California Bar know an applicant is qualified to practice law if he hasn’t visited the California Supreme Court, where such laws are made?

Conversely, since I have seen the Supreme Court in action, why do I have to take a test in 10 days? Like John McCain, my multiple visits to a place should give me unquestioned authority and insight about it.

-- How can the Boalt Administration claim I didn’t Am Jur my last three classes, if Dean Edley didn’t personally read my exams? Relying on so-called “experts” to grade my exams just shows Dean Edley can't reach a conclusion on his own.

I look forward to having my class rank recalculated in a McCain administration.

Friday, July 18, 2008

Help Me Help Another Boaltie See the Light

Two threads below have generated a "spirited" email exchange, in which only one party can prevail.

Please, vindicate me:

1. "Her California [ . . . ] was suspended after she was caught talking on the phone while driving."

a) driver license
b) drivers license
c) driver's license
d) drivers' license

2. "On top of everything else, the whiners demanded [ . . . ] to the tune of $7-10 million."

a) attorney fees
b) attorneys fees
c) attorney's fees
d) attorneys' fees

(Apologies to the extent this reads like a bar question. But at least this time the answer is listed.)


Tuesday, July 15, 2008

Classless Action

I just received an e-mail notification regarding the Kashmiri case. For the uninitiated, this is the class action brought by a Boaltie against the UC for the fee increases that began in 2003. The allegations rested on a reliance theory (somewhere on the UC website someone said that fees will not be raised, but they were).

There are three subclasses: (1) Spring 2003 semester students at any UC school on the semester system; (2) Summer 2003 students at UCB and UCLA; (3) Professional students who enrolled prior to Dec. 16, 2002. The following are the damages per class:

Of that amount, the following will be deducted:
Plaintiffs have proposed that their attorneys be compensated for their five years of work on this litigation with a fee equal to 25% of the damages amounts for each of the three subclasses to be deducted from the damages awards to each subclass. Plaintiffs also propose that their attorneys be compensated a reasonable amount for the out-of-pocket expenses that counsel have incurred during the duration of this litigation. Expenses are approximately $100,000 as of June 1, 2008, and are expected to increase substantially before this litigation ends. Plaintiffs also propose to pay the eight class representatives a service award to compensate them for the time and risk involved in pursuing this lawsuit against the University. The proposed service payments total $80,000.

Count me as someone who thinks $7-10 million is excessive. So, I will object to the attorneys' fees. I will also give back to Boalt whatever I get from this disbursement (though I'm technically getting paid for being a member of subclass 2). I don't think current UC students and California residents should be saddled with this ridiculous judgment. No one's happy with education costs going up, but paying those who actually got several years dirt cheap legal education doesn't make things better.


Monday, July 14, 2008

The Resident Evil

Having finally concluded what became quite a battle of wits with the UC Berkeley Residency office, I feel I should pass on some lessons learned. If I were still an out-of-state 0L, hoping to skate through the residency petition process come spring, I would make sure I addressed the following housekeeping items, now:

Before You Matriculate This Fall

Obtain a physical California mailing address (not a PO box). Then obtain a CA driver's license, register to vote with your CA address (can be done in conjunction with the driver's license), and register your vehicle to your new CA address. Call your bank to make sure your statements reflect your new address. Make sure your employer sends your CA address to the IRS when they submit your tax information. (It took about a week to explain why my W2's were mailed to Idaho.)

Each of these things must be done one year before the date upon which you wish to be declared a resident. So, that means one year before the first day of school in the fall of 2009.

After Schools Begins

Vote in California. Pay CA income tax on any taxable earnings after school starts. Contrary to what some of the brochures say, it is okay if you want to work outside the state of CA during your 1L summer, but if so, then you must document that you were present in Berkeley during all of the academic holidays (Thanksgiving, Christmas, and Spring Break) by submitting credit/debit card receipts. Note that creative Boalties draw a distinction between documenting their presence, and being physically present -- use your imagination.

During The Residency Petition Process

Here is a copy of the this year's "Statement of Legal Residence Documentation Checklist" for law students. It is essentially the cover sheet for your application. Check every box, fill out every bubble, and do your best to follow the instructions to the letter. Any inconsistency will prompt telephone calls at inconvenient times, during which you will be aggressively asked rude and demeaning questions by someone substantially less smart than you.  It's a drag.  And it can be very awkward if you are, say, on a date. Hypothetically speaking.

My impression (after what felt like dozens of requests for further documentation) is that the best way to skate through is by going to great lengths to avoid the attention (and attendant ire) of that first little bean counter tasked with screening your application. You want to create the impression of a non-memorable, clear-cut, slam-dunk case, and you want to create that impression early on. In that respect, it's a little like a summer internship, boot camp, or law school -- the most favorable initial impression is the unremarkable one.

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Sunday, July 13, 2008

Building a Better Legal Profession

Like the author of the post below this one I also share a letter, this time from Building a Better Legal Profession.  BBLP is an organization that was created last fall by Stanford students (referenced here on N&B) and is itching to grow.  The letter is self-explanatory, and I think you'll find its message germane to the looming OCIP season.

Or, germane at least to a discussion about methods by which to choose a law firm, aside from the good old fashioned NALP-sheet-salary-troll.

Dear Students, Colleagues, Friends of Boalt:

Another season of on-campus interviews is fast approaching, and law students across the country will soon be scratching their heads, wondering how to differentiate between law firms. Building a Better Legal Profession was launched by two law students last fall in an effort to create greater transparency in the profession and to change the way students approach interview season. The more students talk about choices and balance, the more firms respond. We're hoping that this year, you'll join in the call for reform by starting a chapter at your school. With a new website set to launch, a fall OCI campus tour in the works, and a new round of rankings, we're poised to up the ante this year--but we need your help. (You can check out some of the press BBLP got this year here: The Lawyers Weekly,, Daily News, The Shark, The Chicago Tribune, JD Bliss, Los Angeles Times, The New York Times, [and *cough* Nuts & Boalts].)

The race to $160K means cash on hand for young lawyers, but what's the catch? We can probably expect more billable hours, less balance, fewer opportunities for pro bono work, and greater dissatisfaction. The resulting mass exodus from firms is not just bad for recent law grads, it's bad for the profession. By starting a BBLP chapter at your school, you can bring real choices to your colleagues. For every friend and colleage at your school who chooses job satisfaction over the highest salary, firms will have another reason to shift their focus.

Law students are in high demand, and we can afford to be more selective in our career choices. Building a Better Legal Profession seeks to harness the market power of law students to encourage reform at large private law firms. As a national grassroots organization, BBLP is only as strong as its student network.

This is where you come in.

We hope you'll join with us by starting a BBLP chapter at your school this fall. With your help, your colleagues can walk into interviews with a better understanding of their market power. Instead of being auctioned off to the highest bidder, they can join a generation of associates who are swapping dollars for time, balance, and community. Empower your friends by shedding some light on the import of their career choices, and they will thank you.

Spearhead a BBLP chapter, and we'll send you all the materials you need to spread the word. Please let us know if you would like to get involved as a chapter director. Or if there's someone who you think might be interested, we'd appreciate your passing this message along.

I look forward to connecting with you soon!

Best Regards,
[The Folks at Better Legal Profession]
BBLP on Facebook

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Saturday, July 12, 2008

The Law Teacher Thingie

I'm posting an announcement from Prof. Harris re teaching.


Thinking about a career in law teaching? Planning to go “on the market” this fall or the next? If you are a Boalt Hall alum and answered “yes” to one or both questions, please send an email to Professor Angela Harris, aharris-at-law-dot-berkeley-dot-edu under the subject heading “Law Teaching.”

Boalt’s Academic Placement Committee (Professors Angela Harris - chair; Professor David Gamage; Professor Melissa Murray; and Professor Eric Talley) offers several kinds of services, collectively titled the “Boalt Boot Camp” (BBC) to its graduates planning careers in law teaching. For Boalt alums planning to go to the American Association of Law Schools (AALS) hiring conference this fall, there will be an evening workshop July 23, 6-8 p.m. in room 121 at Boalt, on the mysteries of the Faculty Appointments Register (FAR) form that must be submitted in order to attend the conference. For both those definitely going on the market this year, and those who would like to pursue a teaching career in the next few years, there will be a day-long workshop August 22, from 9 a.m. - 4 p.m. in the Dean’s Seminar Room at Boalt, on how to get a tenure-track academic job in law. This workshop includes information on post J.D. fellowships to prepare for teaching careers, what to expect at the AALS conference, job talk do’s and don’ts, and more – including a mock job talk and mock interview in front of Boalt faculty, who will participate and then offer constructive suggestions. Finally, for those contemplating a career in academia whether now or later, Professor Angela Harris runs a BBC listserve where you can find links to blogs on legal academia, job openings, advice from Boalt alums now in teaching, and more.

If you are interested in any or all of these services, please send an email to Professor Angela Harris, aharris-at-law-dot-berkeley-dot-edu. In your email, please let us know (1) your year of graduation; (2) your research and teaching interests; (3) what year you plan to apply for law school teaching jobs; and (4) which of the BBC events and services you are interested in.


Thursday, July 10, 2008


Evidently we're all screwed.

The family of a 45 year old former Toyota engineer in Japan has successfully convinced Japanese courts to declare that the engineer's death was due to working too much, a phenomena known in Japan as "Karoshi".

Evidently for the two months prior to his death, the man worked upwards of 80 hours of overtime a month. "He regularly worked nights and weekends, was frequently sent abroad and was grappling with shipping a model for the pivotal North American International Auto Show in Detroit when he died of ischemic heart disease in January 2006."

Not to demean the guy in any way, but I've heard of even senior partners who regularly pull those kind of hours. And I'm not even talking about back in early 2007. I'm talking about right now - in the "recession".

So, yes, apparently we're all screwed. I just figured I'd share.

Ok, enough of that. Off to my next biglaw-funded day-long retreat!

Monday, July 07, 2008

Way to Go Donny Earl!!!

Co-blogger Earl Warren's post on the California cell phone ban for drivers earned an honorable mention in this NYT piece. (Hat tip: Anon 10:47). Good job EW, your countless, thoughtful posts on the Democratic primaries are no match with a mention in the NYT in establishing a liberal bona fides.


Is California’s New “Hands-Free Only” Law a Pretext to Search You, Your Car, and Your Passengers?

Update: Movin' on up for any NYT readers in the house.

Next Tuesday, July 1, California’s new “hands-free only” cell phone law goes into effect. Drivers in California must use a headset or Bluetooth when talking on their phone; holding the phone in your hand while talking constitutes a violation of Vehicle Code § 23123, punishable by fines ranging from $76 to $190. The police may pull you over solely for a violation of the new law (and they've promised they will).

As a matter of public safety, it’s hard to imagine a more worthless piece of legislation. Most studies show that the risk of driving on the phone comes from the mental act of concentrating on the conversation, not the physical act of holding the phone to your ear. But the politicians didn’t dare ban cell phone use outright; instead, they patted themselves on the back for symbolic action while generating revenue for county governments and electronics retailers.

But my real question is whether this could lead to an explosion of pretextual searches of automobiles, especially in minority and low-income communities. I think such searches are, unfortunately, constitutional under current doctrine. I invite other criminal procedure aficionados (and doesn’t that include all of us studying for the bar?) to tell me if I’m wrong in this analysis:

Imagine a cop sees a driver in a car in front of him holding something to his ear. The cop flips on his lights and pulls over the driver. The driver, after spying the cop or after getting pulled over, closes the phone and puts it away—either in his pocket, the glove compartment, his backpack—anywhere concealed. The cop walks up to the car, asks the driver if he was talking on his cell phone, and the driver says, “No.” At that point, may the cop search the car, the drivers, and the passengers?

Frighteningly, I would think yes. The cop has probable cause to believe the car contains evidence of a crime. Namely, that there’s a cell phone hidden somewhere, which is evidence of the violation of the new law. The analysis isn’t terribly difficult under common crim pro precedent.

First, we know individuals have a reduced expectation of privacy in their cars, and cops may search a car without a warrant if they have probable cause to believe the car contains evidence of a crime. Carroll v. US, 267 U.S. 132 (1925); US v. Robinson 414 U.S. 218 (1973).

Second, probable cause to search the car can develop (e.g. ‘ripen’) after the stop—such as pursuant to the officer’s observations of the car and its occupants. Colorado v. Bannister, 449 U.S. 1 (1980).

Third, the stop may be completely pretextual—it is no defense that the cop had an ulterior motive in pulling over the car, so long as the stop itself was valid. Whren v. United States, 517 U.S. 806 (1996).

Fourth, and most importantly, the cop may then search the car, containers therein (e.g., purses and backpacks), the driver, and passengers’ belongings if any of those things could “reasonably contain” the items or evidence for which there is probable cause to search. Wyoming v. Houghton, 526 U.S. 295 (1999) (thanks Nino!).

That means that, because the driver could have put his cell phone in his pocket, or his glove compartment, or his backpack, or his girlfriend’s purse, or handed it to someone in the back seat—all of those things may potentially hold evidence and are thus searchable. The tremendous concealability of a cell phone makes anyone or anything in the passenger compartment a potential repository of evidence.

Nor does it make a difference that the “crime” for which evidence is being sought is only a minor vehicle infraction; the probable cause standard under the 4A does not distinguish among levels of crimes. Atwater v. Lago Vista, 532 U.S. 318 (2001) (upholding arrest incident to violation of fine-only infraction).

The closest case on point for all this is Knowles v. Iowa, 525 U.S. 313 (1998), in which the court actually rejected the right of the police to conduct a “search incident to citation.” But the case actually supports a search in this case.

In Knowles, an Iowa trooper pulled over a driver for speeding and then, without consent or probable cause, conducted a full search of the driver’s car and found marijuana. Iowa defended the search by saying that, since a search-incident-to-arrest is a well-recognized exception to the warrant requirement, the police should be able to search someone after citing him for any arrestable offense (like speeding)—even if they don’t actually arrest the guy, because they might find evidence supporting the citation. (The need to look for and preserve evidence of the crime is one of the constitutional rationales for allowing a search incident to arrest). But the Supreme Court, in a Rehnquist opinion, rejected this rationale only because, in the case of speeding, there was no additional evidence to find:

Nor has Iowa shown the second justification for the authority to search incident to arrest–the need to discover and preserve evidence. Once Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car.

Unfortunately, in the context of California’s hands-free device, there is additional evidence to find to prove a violation of the new law: the cell phone itself. Knowles actually seems to invite a search in these circumstances.

To quote the late great George Carlin, this is some bad shit.

Based on Knowles, I see two tiny glimmers of hope for those of us who like robust civil liberties:

One, if the driver admits to talking on the phone, that may be enough to discharge the right to search for lawful evidence—even if the phone is now concealed—because the cop has everything he needs to issue a ticket. However, just because a driver admits to being stoned doesn’t mean the cops can’t search for the pot: finding the article at issue makes the state’s case stronger—and that’s the whole point of “evidence.” If the driver decides to later challenge the hands-free ticket in court, it is obviously helpful if the state can point to an officer’s log or a memorandum on the printed ticket that notes, “Found black LG flip-phone with picture of lolcat below dash.” So I don’t know if an admission is much constitutional help.

Second, and perhaps more favorably, if the cell phone is in plain sight, the need to search for it dissipates entirely. If it's visible, it's been found. And the cell phone itself isn’t contraband.

So maybe this is what will happen during most stops. Maybe most drivers will calmly set their phone down in a visible place on the dashboard or seat next to them and sweetly admit their crime to the cop.

But I doubt it. California as a populace is law-and-order in the voting booth and recklessly libertarian on the freeways. I'd guess the first instinct for 70% of people pulled over is going to be to hide the phone. I mean, what are you going to do the first time you see flashing lights and think, “Oh shit"? (And I know some Boaltie is going to get nailed next week).

Maybe this won’t matter for most people. But if you’re poor, or you’re a black guy driving a BMW, or you’re on Telegraph after 2 AM, or the cop doesn’t like the cut of your jib, or he just had a bad happy meal—he’s got the right to tear your car apart under this new law. That could lead to a whole manner of abuses—and I doubt the (very Democratic) legislature had that in mind when it passed it.

Friday, July 04, 2008

Two Uncreative Ideas

At six weeks into my summer gig, and the beginning of a holiday weekend, today is an opportunity for repose. Unlike the gentleman in the thread below, I have kept the drinking at firm events in check. Unlike my friend [snip], I have kept my hands to myself. So, I dare say things are going well.

Things could, however, be going better. I suppose it is an old saw on this board, but I confess, I'm no different: I wish I had devoted more energy last fall to LRW. Legal research and writing is, in fact, what I do all week. It would be nice to remember how.

I also wish I had made it off the waiting list and into Civil Procedure II. It is embarrassing to know that I am the one person at my firm who understands absolutely nothing about jurisdiction – a concept that (from what I can gather) must be kind of important.

I have two curricular proposals. They are uncreative, but reasonable.

First, I propose grading in LRW, and teaching it with substantially less hand-holding. That would pull LRW from the back burner and put it on a par with our (arguably) less important classes. Many other law schools grade their writing courses, so the idea is workable. The less-hand-holding part of my proposal may be controversial, but I can see nothing but benefit. Analysis and writing are so inextricably bundled together that, by forcing students to do their own analysis of those LRW fact patterns, and then forcing students write their own analysis out, Boalt will help its students' legal reasoning across the board. I feel it would have helped my legal reasoning across the board, at any rate.

Second, Civil Procedure II should be a mandatory second semester class. I hear it used to be. I wish it still was.* I realize Boalt's admissions brochure scores points with Admits, by advertising that 1L's get to choose an elective or two. Those points do not buy much, however, for rising 2L's like me who cannot fathom the difference between state and federal court. Civil Procedure II. Bring it back, please.

One caveat: I have worked almost entirely on litigation projects this summer. That epxerience might make me overly sensitive to the procedure and writing angles of lawyerly-ness. But I do not think so. No matter what type of work a lawyer (or a "pretend lawyer" / summer associate) does, they must able to write. And they need to understand jurisdiction.

*Was? Were? Both Strunk and White, and Fowler's are silent on this one.


Thursday, July 03, 2008

This Blog

Is among the Top 100 Law and Lawyer Blogs. (See how annoying it is to start with a to be verb?)


Wednesday, July 02, 2008

Crossing Media

For those of you with Gmail, you know that Gchat has a feature where you can list your status along with an "away message." For a long time, I've been noticing people using that space to mimic Facebook's "status" feature where you use the third person to describe what you are doing, e.g., [Name] "is eating 64 slices of American cheese." A few days ago I decided to be passive aggressive about it. In my own Gmail away message, I wrote the following:
Folks, gmail is not facebook. Please don't use this away message space as your facebook status crap. Rule 1: Message cannot begin with any form of the verb "to be."

The response was overwhelming. Even as I type, I see messages that say, "is trying to piss off Armen." "Armen is a loser." "To be." "is not a fan of Armen's message." Etc. I stand by my assertion. That space is for proper away messages, a la, those you find on AIM. Maybe I'm too old school, maybe everyone is a huge Bob Dole fan, but I can't stand people crossing a feature from one medium with that of another.

You have Rule 1, what's next?

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