The Bar Exam Is Dead, Long Live The Open Bar!

Huzzah! Comments may follow. Not mine though, I'm going to go have a beer.

The Hammer Falls

Well folks, it's almost over. The giant questionmark hanging over the Summer Classes of 2009 is about to transform into an exclamation point. I was discussing the prospects of getting an offer with a friend today, and we agreed that there is no result that will not shock us. If everyone gets offers, that's shocking. If no one does, also shocking. Even if offer rates drop to 50-80%, as some predict, that too will be unprecedented in recent history.

I don't know what will happen to me yet, but I know it will confuse the hell out of me. Obviously, I would like an offer. The prospect of going through OCIP again gives me night terrors. But, if I get an offer and good people I know do not, I will be racked with surivor's guilt. (If you get one and I don't, I expect nothing less from you.) If I do not get an offer, it's back to the drawing board. Do I keep at it in this miserable economy, move to a gentler market, try public interest, chase my dreams of professional writing? How will I manage to pay rent under any of these alternatives, let alone student loans?

This is a pickle that I'm sure many of us will find ourselves in during the coming months. Let me be the first to say, we will all be fine. We're smart, talented, motivated, and nerdy; someone somewhere will eventually want to pay us for something. As hackneyed as it is to say it, this too shall pass.

But while it's passing, I expect there will be a lot of questions, emotions, freakouts, rants, tears, laughter, flatulence, and introspection. Let Nuts and Boalts be a place where we can come together and share such things, provide advice or commisseration, and just generally work through it as peers.

As you start to find out more about your career prospects, share your thoughts below. Let us know if you've been deferred and how you plan to spend the time. Bitch your heart out if you got no offered. Fill us in on how you're coping, and give some advice to others in the same boat. And this doesn't have to be just a Whiners' Association conference. If you secured an offer in this economy, we want to congratulate you. If you never even thought about going to a firm and are now enjoying some public interest option and laughing at me right now, that's cool; I deserve it. We can appreciate both tales of woe and redemption.

I'm going to end this post before it gets any more touchy-feely. But keep it in mind as an outlet for your tormented thoughts in this shifting market. Let's face it, no one else wants to hear your crap. That's why you're here.

What Really Matters

As the comments on the Bar thread are starting to reflect, the best part about being done is going back to summer TV. In my experience there are two types of summer TV viewers: those who watch the reality crap that the networks put on (e.g. shows where The Hoff is a judge!!!) and those who latch on to the high quality cable shows that begin their season when the network season ends (Rescue Me, Entourage, Dexter, etc.). Regardless of which camp you fall under, summer programming is definitely not as boring as it once was. But it does require a lot of scouting time. So, to ease the bar takers into their TV viewing habits, let this be an open thread to share thoughts on shows that people have scoped out for the summer.

Relatedly, I'm happy to see that HBO leads the networks by a wide margin in showing gay characters. Personally, I think the article makes a glaring oversight by not mentioning Omar from The Wire, who strikes me as one of the best protagonists in TV in general, let alone among the few gay characters.

July 2009 Bar Exam Thread

We've now filled up a couple different threads worth of comments. So here's the one that takes us through this wonderful week.

Piggy-backing off a comment finishing the last thread:

So, can we start talking about Day-Of considerations?

- what's going in your plastic bag?
- two pillows? no pillows?
- secret food strategies?
- what are you going to do with a 90-120 minute lunch?
- apres-test drinks on Tuesday?

It's Time to Talk About the John Y*o "Prank"

Many of you have probably seen the video of a "prank" an Australian comedy show pulled on Professor Y*o in a Boalt classroom. I'm not going to link it here, but it was on abovethelaw recently, and I'm sure you can google it. Knock yourself out.

Obviously, how you feel about this video is inextricably tied to the way you feel about the whole "academic freedom vs. possible ethical violations and general horribleness of torture" debate that we have waged in the comments ad nauseum. I'm not really interested in talking about that. I want to know how it made you feel as a student or alumnus of Boalt and someone who has encountered Professor Y*o in real life.

When I watched the video, I felt sick. It struck me as a heinous violation of the sanctity of a classroom and a hostile invasion of a place I consider home. It felt more like an attack than a joke. More than that, I felt bad for Y*o. I don't agree with his opinions on executive authority, but all he was trying to do that day was teach. I could sense his shame at being forced to end the course over something that had so little to do with his job at Boalt. It seemed like his sins were being visited upon his students, which strikes me as unfair no matter how terrible the sin. For lack of a more eloquent term, the whole thing just seemed gross.

This video hit the same week as Bruno, which I found pretty hilarious. Sure, it also left a bit of a bad taste in my mouth initially, but I laughed it off with a shrug. I figured those people deserve it! This discrepancy got me thinking about the cost of relevant comedy. I loved Borat and The Ali G Show. I love the correspondent segments on The Daily Show and Stephen Colbert's interviews with congresspeople. Comedy involving real people mixes humor with comeuppance, and it's a potent combination. Laughing feels twice as great when mixed with smug self-righteousness. But Y*o is the first person I've seen in one of these videos who I actually know. This is the first time the comedy has invaded my world, and it completely changed the way I felt. If it had been Dick Cheney on his ranch instead of John Y*o in my school, I would have laughed my ass off.

Is that natural, or am I a hypocrite? Do I need to completely rethink the way I view comedy, or are these Australian guys just not funny? I don't know the answers to these questions, but the video has forced me to consider whether harmless fun ever is, and if not, whether harmful fun can ever be worth it. How'd it make you feel?

UPDATE: Apparently this incident occurred at Chapman, not Boalt. I was wondering why he was teaching in such a small classroom!

UPDATE: News of a new film by the "Yes Men" along similar lines, but with large corporations as the targets. I guess this will be the first test of my newfound skepticism of guerrilla comedy. Then again, it sounds pretty damn funny.

A Sort of Boalt Confirmation Hearing

Unless you're up to your eyeballs in the bar exam, you probably saw Mindi's email on behalf of BHSA soliciting applications for six student slots on the Faculty Appointments Committee.

I'd encourage anyone who is interested to do it. And I encourage anyone who does it to find out from prospective candidates: "If hired, would you make the narrative portions of your teaching evaluations available to students?"

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Slight Update: An anonymous commentator noted the recent email explaining that classes with fewer than 12 enrolled students will be cancelled, for budgetary reasons. (The same email also stated that a new course section on "Critical Race Theory" would be opened. *cough*.) I think it's a real bummer that we are losing smaller sections, although it's probably also unavoidable. I also think students should realize the importance of tactical enrollment: this is NOT the semester to enroll in Construction Law (which currently has 10 enrolled students) late, after the first week of classes. Rather, this is the semester to enroll early, sample, and then cut the fat later. Just my two cents.

Day One, Question One

OAKLAND, California (CNN) — Oakland’s bid to become the first U.S. city to tax proceeds on medical marijuana passed Tuesday by a landslide vote.

About 80 percent of voters chose to impose the tax on Oakland’s medical marijuana facilities, according to the Alameda County Registrar of Voters.

Some celebrated the news at Oaksterdam University by hand rolling large marijuana cigarettes or stuffing cannabis into pipes. The school trains students for work in the medical marijuana industry.

“It is important because the city of Oakland is facing a massive deficit like many jurisdictions in California,” said Steve DeAngelo, a leader of one of the city’s cannabis clubs. “And we decided to step up to the plate and make a contribution to the city in a time of need.”

DeAngelo is one of the people who lead the effort to get the tax approved and said his business will now have to pay more than $350,000 from the new tax next year.

Question 1: Would a Marijuana seller have standing to challenge the tax on Supremacy Clause grounds? Discuss.

Question 2: Is this tax provision proper under the federal constitution? Discuss.

"I'm Gunna Pass this Damn Thing" Thread - Part Deux

The comment count evidently got to be too much for Google's neglected Blogger to keep up.

Feel free to keep it flowin' here, as we all strive for minimal competence.

Look Who's Come Crawling Back

When debating bar trip locations, we (the three of us in question) universally agreed to skip Paris because the lone francophone had already been, and the rest of us were not eager to put up with haughty, arrogant snobbery for using English. Actually, the reluctance of the French to embrace English as the new lingua franca (!) has bothered me for quite some time. This is why French tourists received the worst marks in a recent survey (reluctance to speak English overseas and no tipping).

Well when the tourist economy (that the French seem to forget is essential) collapses, their mood changes. This story brought a smile to my face--and reminded me of the wonderful English signs in Barcelona.

Legal Services Will Always be Recession Resistant

Here's the proof:

On June 30, the California Court of Appeal held that a man who was burned by the huge bonfire that ends the Burning Man festival each year could not sue the festival organizers. Anthony Beninati admitted he had intentionally walked into the fire, and that he had previously known fire was hot. But he argued, basically, that the organizers were negligent because they should not have let him approach the fire so closely.

He did not win.

Beninati v. Black Rock City, LLC, ___ Cal. Rptr. 3d ___, 2009 WL 1857303 (Cal. App. 1 Dist. 2009).

"I'm Gunna Pass this Damn Thing" Thread

Here's a new thread that is meant to be more focused on bar prep study - questions, advice, mnemonics, bitching about lecturers, etc.

To help start it off, try this link to a prior N&B thread on helpful mnemonics.

Good luck everyone!

[Note: I'm going to try to keep this thread at or near the top to encourage use.]
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Bump #1 (6/23): Everyone feeling FAAABBUULLOUSS?

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Bump #2 (7/5): So July 4 has come and gone - now what?

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Bump #3 (7/14): Final two week stretch.

Kill the Ump!-ire Analogy

Apologies for bumping the thread below, but a thought I had in my law school days is relevant again with Sotomayor’s confirmation hearings. As I'm sure we all remember, Chief Justice Roberts compared the role of a judge to that of an umpire, saying that “judges are like umpires. Umpires don’t make the rules; they apply them.” In the past two years this analogy has become dogma and been repeated ad nauseam. At today’s hearing no less than five senators (Feinstein, Feingold, Durbin, Coburn, and Schumer) invoked the analogy, with Democrats accusing Roberts and Alito of not acting like umpires.

Roberts was correct that judges are like umpires, but he meant this comparison only in the narrowest possible sense. What he failed to understand (and the senators and media also fail to understand) is that calling balls and strikes, and fulfilling the other duties of an umpire, is not a simple matter. Much like a good judge, a good umpire must apply sometimes vague rules to disparate situations and individuals, exercise discretion, and use his or her reasonable judgment to reach fair results.

Rule 2.00 of the MLB rule book states the following:

“The Strike Zone is defined as that area over homeplate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the kneecap. The Strike Zone shall be determined from the batter's stance as the batter is prepared to swing at a pitched ball.”

This rule is inexact at best, and indecipherable at worst. Simply mapping out the contours of the strike zone would be a challenge, but to apply this squishy definition to actual game play proves far more difficult. The strike zone is constantly changing, adapting to players’ different sizes, shapes and stances. And, as any fan and player can tell you, every umpire has a different strike zone—one might call high pitches a strike, another may call inside pitches a strike, while another may give veteran hitters a bit of slack. Interestingly for purposes of this analogy, the strike zone has also evolved over time. The rule has been changed no less than a dozen times, and a full six times just since 1950, with the most recent change coming in 1996.

A quick browse of the rule book beyond balls and strikes reveals several situations in which, instead of a clear rule, an umpire is commanded to use his reasonable judgment. For example, in Rule 8.02, an umpire must use his judgment as to whether a pitcher intentionally threw at a batter—if the umpire feels that the pitcher did so, he has a choice of remedies. Rule 9.02, in fact, specifically states that umpire decisions such as fair or foul, ball or strike, safe or out, “involve judgment.”

Perhaps Chief Justice Roberts would be some type of super-umpire who would know exactly what was a ball or strike (and who would never deviate from that oh so perfect strike zone), and perhaps he is omniscient and so would not need to use his personal judgment to determine whether a pitcher was intentionally throwing at a batter.

I doubt that is the case. The reality is that, much like a judge, umpires are given difficult to interpret rules that must be applied to constantly changing and challenging situations. Implying that doing these jobs well requires nothing more than a mechanical interpretation of clear rules is a bush league argument, belying the difficult decisions each faces and belittling the qualities necessary to succeed at either profession. "Judges are like umpires" is the Juan Pierre of legal analogies—celebrated by the media and old folks despite its clear shortcomings when subjected to the slightest of scrutiny. Here’s hoping Judge Sotomayor sends the analogy to the bench once and for all.

*A quick search after writing shows my thoughts here aren't totally original. No doubt this is the Double A version of the good stuff others have previously written.

Sotomayor Hearings Open Thread

Thoughts?

So far I'm worried that this wise Latina will take away my guns and apply Norwegian tort law. [/sarcasm].

Tip of the Hat

As a commenter int he thread below points out, Justice Ginsburg has hired a Boaltie for (presumably) OT 2011. So major congrats to GS. (And let's keep it at that level of specificity please).

BCS: Time to Drop the C

The Senate Judiciary Subcommittee will hold a hearing tomorrow (Tuesday, July 7th) entitled "The Bowl Championship Series: Is it Fair and in Compliance with Antitrust Law?" It will be broadcast live on the interthigny here. Watch it, see what you think, and then call your senator's office. As for me, I think it's high time these greedy conspirators stopped gang-raping our national pastime. I'm not counting on this hearing accomplishing much, but here's hoping!

Do any of you antitrust gurus care to weigh in on this?

Going OSCAR Wilde

Quick clerkship question here. For the last month I have been watching judges in OSCAR hire left and right, presumably from the host of graduates and alumni who are not constrained to the hiring plan. It's frustrating to watch the alumni peck away at my judge list, but then that's the way the cookie crumbles sometimes. I know my place, and my place is the hiring plan: Boalt "adheres to the hiring plan" which means that all rising 3L's must wait until early September to apply for clerkships, with the caveat that the CDO will support early applications to judges who have been known to hire early from paper applications.

Presumably one must identify these judges by word of mouth. But by definition they all have one feature in common -- they all accept paper applications. I know that some students have already resolved to 'de-couple' their paper applications from the mass mailing melee, by sending them early. I haven't made up my mind on that one, yet, but my question is this: is it wise to forsake OSCAR? Given the tighter competition this year, would it be wise to apply early to any judge who accepts any paper application? Could it hurt me to send early paper applications to judges who accept both? Or is there some sight-unseen benefit to the hiring plan that I have yet to discover?

Scratch the above. I just realized I was beating around the bush. My real question is this: absent an explicit request from a judge, why should I adhere to the hiring plan?

Now before anyone flips out, I'm not announcing an intention to go rogue, or anything. I'm merely confused. Could somebody please explain to me what good the hiring plan is for Boalt 3L's?

Guess the Crazy Alaskan's Motivation

So, Palin resigning from her governorship has got to be one of the dumbest political moves ever, right? There has got to be something bigger underneath this news that has not been revealed yet.

So, I thought we could play a little game. Whoever manages to correctly guess why Palin really left gets . . . uh . . . the honor of being right. Yeah, I don't really have anything to give you. But you can brag to all your friends.

Anyway, my theory is that she's dropping the governorship to take a job at Fox News (thus all the talk about trying to effect change "outside of government"). Although, I'd assume we'd have heard some stories about negotiations going on. But I'm sticking to my guns.

Big Changes in Big Law?

I don't check the Shark very often, but was prompted by a commenter in the thread below.

TWO rather interesting tid-bits that work well together for a merged thread here:

First, Orrick announces tomorrow that it officially drops lock-step salaries. Very interesting (albeit confusing) system they're announcing there.

Second, law schools are conspiring with law firms to standardize OCI in the spring.

For as little change as these systems have seen over the years, the widespread implementation of either would be a rather groundbreaking event.

UC-XI

HT to anonymous in the previous thread for linking to DE's op-ed in today's LA Times.

The short version is that California ranks 49th among states whose high school graduates go on to college, and that a fully-fledged cyber-UC campus (read: low overhead --> low tuition) might be a way to track kids toward higher education, "not just in Barstow but in Bangor and Beijing."

As a threshold observation, this certainly is an expression of our Dean's consistent, positive, progressive attitude, and an example of the kind of thinking and energy I admire. DE cares.

I do have some questions, though. First, what do Bangor and Beijing have to do with California's high school to college matriculation rate? Second, what's wrong with the community colleges we already have? Are they full? If not, then why? The kids who chose to avoid community college seem likely to avoid an online education, too. But I could be wrong about that.

Third, and more important, a big part of the problem is that California's educated population is shrinking, and nothing is being done to stop the bleeding. Meanwhile, other segments of the population are on the rise. This is a touchy subject, but put it this way: although the number of people in California continues to increase, the resident number of native-born California residents is declining. Why? They're going to Nevada, to Oregon, to Arizona, because they don't want to be here anymore. Would UC-XI help? My sense is that they could just as easily leave with an online degree as without.

That's the cynical take. There are others. Yesterday I logged on to the Department of Education's website and checked my total outstanding student loan balance. Some of those loans are a product of choices I have made. But most of it comes from the painful, expensive reality of a UC education. It's true that I'm willing to borrow against my future worth (which I suppose is a form of betting on myself -- how narcissistic), but maybe that shouldn't be what a high caliber education costs. Maybe the state should bear that risk, instead? If it wants to encourage more people to learn, maybe it could reduce the incredible financial burden an education incurs? I suppose UC-XI is way of doing just that.

Oh but wait, there is prop 13. And voter referendums. And the ridiculous priorities of the good folks up in Sacramento.

Okay, I'm rambling and I'll stop, but no wonder people see greener pastures on the other side of the Sierras. I can tell you first hand that it's actually pretty nice out there.