It is about time to kick off this year's bar exam thread. Feel free to use the comments to discuss crazy people at BarBri, war stories about the exam, or your personal answer to the following multiple choice question:
Tomorrow will be a big news day for SCOTUS junkies. Feel free to use this thread to air thoughts on any of tomorrow's anticipated developments: Kagan's confirmation hearings, Stevens' retirement (lawyers at the Court will apparently all be wearing bow-ties), the death of Justice Ginsburg's husband today, tomorrow's expected rulings, or anything else that takes your fancy.
Three cases, in particular, are very interesting to me. First is Bilski, the business methods patent case. Pretty much everyone expects a unanimous holding that business methods are no more patentable than a "method of speed dating" (Sotomayor), a method of "wealth maximization [by buying low and selling high]" (Roberts), or a "method of teaching antitrust law that keeps 80 percent of students awake" (Breyer). What I hope for is an opinion that is as clever and crass as the oral argument transcript.
Second is McDonald v. City of Chicago, which asks whether the Second Amendment is incorporated against the states. The case brings plenty of irony along party lines as conservative types clamor for incorporation and liberal types clamor for state power.1 My hope (and, it seems, the sound money) is that a divided Court will hold that it is incorporated by the due process clause (but not the privileges or immunities clause). Depending on how broad the Court construes the right to bear arms, I think it is safe to expect immediate lawsuits against (among other places) the City of San Francisco, which has been phenomenally successful at burdening handgun ownership.
Third are two potential First Amendment developments. The first is Christian Legal Society v. Martinez, the UC Hastings First Amendment case. Lots of background gossip in this case as well, after Professor McConnell's repeated confrontations with the Justices at oral argument were, um, less than graceful. The second is a set of expected orders in Petitions from big tobacco, which has asked the Court to grant cert on (among other things) whether the massive cultural effect of tobacco litigation and health issues in America makes their tobacco advertising political -- and not commercial -- speech. My gut finds that argument clever but not convincing, although my brain has a hard time drawing a line between commercial and political speech in this case -- especially after Citizens United. Anyway, if the Court decides to review that issue I think we can expect some interesting coverage in the coming year.
Finally, tomorrow is Justice Stevens' last day of active service, and the beginning of SCOTUS nominee Elena Kagan's confirmation hearings. So it should be a busy day on C-SPAN and a slow day of bar review, at least for us nerds.
_______________
1Update, June 28th: Two thoughts, having now read the opinion.
First, I think it is safe to say the Court was aware of the irony as well: "Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era." (Slip Opinion, pg. 33.)
Second, is it just me or is Justice Alito becoming the Court's leading example of excellent opinion writing? One need not be pleased with his conclusions to agree that his writing is clear, precise, direct, and approachable. I'm thinking in particular of today's decision in McDonald, and last fall's decision in Jones v. Harris Associates. He ought to teach a seminar. I am sure law students everywhere would be pleased to see Justice Kennedy attend.
Someone close to me is considering law school after studying economics and sociology at a name brand east coast college. What would you say?
My usual advice to prospective law students is, "Don't split the baby. Shoot for a top ten school, and if you don't make it then attend the best school can for free." I feel, however, like warning about what I call the sub-prime student loan market, where borrowers (students) are leveraged to the hilt with the help of private lenders, despite the students' total absence of apparent immediate income. Rather than common sense, the market operates on the principle that loans can be secured by an educational asset that everyone tacitly agrees will increase in value. No matter how many people get law degrees, and no matter how expensive they become, the degree will always out-value the debt liability.
Law schools aren't helping. Call any law school and ask about their graduate employment rate. Any school -- including ours -- will give you a number that our guts tell us is not accurate. Ask about median starting salary and again you will get rosy numbers we all know are false. Lenders have no incentive to be any more helpful -- recall that statutes rendering student loans immune to discharge by bankruptcy essentially nullifies lenders' risk. And with student loan rates at about seven percent (the cost of a credit card six years ago), they are making a killing. And absolute killing.
The refrain goes like this: "Oh, but law school is about education; it is about deeper understanding of our social and political systems." Well, maybe. It is also about a career. I don't really understand why so many academics resist the idea that legal education is a trade education by insisting on calling law a "calling" or a "profession," especially given that their actions are so much to the contrary. Schools of late are paying firms to hire their graduates. They are flagrantly manipulating their grading scales to make their students appear better qualified than students from 'competing' schools' (ours included, by the way). Students aren't likely to complain -- the vast majority of us want a job first, and a 'deeper understanding of our social and political systems' second. Again: we may want an education, but we all need a job. None of this is in the admissions brochures or in a college career counselor's pamphlets.
I don't know what to say to my friend. On the one hand, I loved law school and I would do it again in a heartbeat. My three years at Boalt Hall have been some of the best of my life. On the other, I'm (probably) in the minority on that point.
Soccer Isn't Going Anywhere or Why It's Too Bad Every American Couldn't Experience Today's Triumph
The soccer landscape has changed in the United States. Those of us who have been life-long fans have noticed this change. For better or worse, some people will continue to trash talk about the world's most popular sport and it's sad that these people fail to appreciate exactly how big this moment was for the United States in the world's most popular sports tournament.
But today, the rest of us, novice and hardcore fans and everyone in between, witnessed the biggest moment in recent US sports history. Donovan's goal is arguably the best single moment (as opposed to best result) in US soccer history. Ever. Period. And you know what? I, and millions of other American fans here and abroad had the luck and privilege to witness it. Today I saw a goal I will remember for the rest of my life. This is a moment I wish I could share with everyone. I shared it with many of you, but for some reason there are still Americans that actively dislike a sport that matters so much to many of us and certainly to the rest of the world.
Soccer haters can parrot the same reactionary anti-soccer garbage I've heard since 1990. That's ok, it's your right, but it won't stop the game from continuing to grow in the US. 2002 was a wake up call. In the middle of the night, a 3-2 win against Portugal, one of the best teams in the world, got people more interested as it was the first major win for the US in the modern era. In 2006, the country was poised to get behind the team, but instead watched three horrible games that ended our World Cup.
Finally, last summer, a year out from the 2010 World Cup, the excitement was building. When an improbable 3-0 win over Egypt sent the US into the Confederations Cup Semifinal against Spain, a team that was unbeaten in 35 games and was arguably the best team in the world at the time, people started paying attention. We won the game 2-0 and showed everyone back home that we were contenders. We could play with the best of them. People took notice. In the US's first game of this World Cup, the TV audiences for the England v. US game rivaled the NBA finals. ESPN finally woke up and has covered the World Cup as it's meant to be covered (aside from Lalas and Harkes being idiots). Every game is broadcast, dissected, analyzed by (mostly) first rate commentators, former players and current coaches.
I understand that some Americans don't understand soccer. That's ok. But, the failure to give it a chance, to try and understand why so many people around the world and in the US love it, is really unfortunate. There is just not the same kind of passion in US pro sport fans as there is in soccer fans the world over. I'm not sure why this is, but it certainly isn't because it's a dull sport or not "legit."
As for the canard that only children play soccer in the US- the state of our team today speaks to the reality of youth soccer in the US. You don't produce players like Clint Dempsey, Landon Donovan, etc. without a strong base of soccer players up through high school and college.
I hope some of you who may not have been interested in the past have started taking note. Watch some games with a friend who knows what's going on, read up a little on the sport and give yourself some time to adjust to the way it's played. I guarantee that if you give it a shot (like going to a bar on Saturday to watch the US play Ghana) you'll be hard-pressed not to get swept up in the beautiful game.
In the end, I don't expect to have convinced anyone who is a die hard hater (like Glenn Beck, for instance) that soccer is worthwhile. There will always be soccer haters in the US. It's just getting harder and harder to hear you over the buzz of the vuvuzelas and the cheer of the pro-US crowd after a day like today.
I think co-blogger James has fallen asleep at the wheel, so to speak, so I'm going to create this post that I'll periodically update with my thoughts on the World Cup.
So far, not even 1/3 of the way through the opening round-robin of play, a few things stand out.
1. Ball is just fine. No controversy here. Move it along.
2. Ah yes. The Italians (and to a lesser extent the Argentinians and Portuguese). These teams offer such dramatic performances, you'd think it was a production of Puccini's Turandot at La Scala. (Translation: These teams are up to their old tricks of diving at the slightest hint of contact. Or as the witty British ESPN announcer said, "even if there's a puff of wind"). Thankfully, SLATE will be awarding "Dive of the Day" throughout the WC.
And if you're not a soccer fan and wonder how players can get away with this, the answer is referees. There is only one ref for the entire pitch, though he does have two assistants. But in general, given the speed of the game it is difficult to catch the dives in real time. The solution? Ex post facto video review by FIFA and game bans. It's unsportsmanlike conduct and has no place in the game.
And in case you have doubts about where I stand on the matter, the following poster hangs in my office.
3. Knock on wood, but so far the teams have demonstrated sportsmanship and the referees have not screwed anything up too terribly.
4. Raise your hand if you predicted the Brazil v. N. Korea outcome? Yeah I thought so.
UPDATE:
UPDATE 2: And in this video you can see the North Korean news reporting on the glorious 1-0 victory against Brazil. Definitely waiting to see the People's Republic of Korea Sports Center Top 10 plays of the day from the Portugal match earlier today. [Upon further analysis from Korean colleagues, the captions are made up...but still funny].
UPDATE 3: Well, I simply cannot imagine ANYONE claiming soccer is boring after watching THAT game. A goal ruled an offside, two goal posts, several near misses, and a game (and group) winner in stoppage time. Yeah, sometimes it does seem scripted. A few quick thoughts:
-- Bob Bradley looks like a genius. More accurately, Bradley is magnificently managing a team of players who rarely play with each other on the greatest stage for soccer (contra, France). His son still had some good touches too.
-- Donovan has come a long way since 2002. Much more mature, and much better at reading the D.
-- We won't know who we face in the Round of 16 for a few more hours. That determination really depends on the outcome of the Germany v. Ghana game and the Serbia v. Australia game. The likely opponent will either be Ghana or Serbia as runners up in the group. Neither one is an easy opponent, but better to face them than Germany.
-- I am definitely glad I am not a recent grad studying for the bar.
-- On the goal disallowed because of offsides: Offsides in soccer is probably the most difficult rule to enforce in all of sports. Even the infield fly rule is relatively simple. As written, an offside requires two things:
(a) a player must be in an offside position, which occurs if "he is nearer to his opponents’ goal line than both the ball and the second-last opponent." Generally the goalie is the last opponent, meaning you have to be even or behind the last defender. And...
(b) the player must be involved in active play when the ball is played.
Translated, this means that when the ball is passed forward, the attacking player cannot be cherry picking in front of the goal. He must be even or behind the last defender. On a lot of the free kicks, you can see this dynamic. If they are too close to the goal, they are offsides. If the defenders move too far away from the goal, then they give the attackers a large space to time a run to the goal the instant the ball is played. This also means if two attackers are on a breakaway, and attacker with the ball passes it forward to the other attacker, then it is offsides. Notice that when a player gets a good run they always make that last cross go backwards to avoid any offsides call.
If you look at the video of the Donovan goal, embeded below, Edson Buddle Clint Dempsey is clearly in an offside position. He is closer to the goal line than any defender. In fact he is on the goal line. But when Donovan strikes the ball, Buddle is not interfering with the play. So no, offside call.
Back to the disallowed goal. The referee's assistant ruled that Dempsey was in an offside position. He clearly interfered in the play because he scored a goal. Review showed the instant the ball was played, he was even with the second to last defender, but then stepped ahead to get a better position to score the goal. It's that split second, when the ball is played, that the assistant must get right. Most of the time, they do. But it's very hard to see the position of the attacker, the player playing the ball, and the defenders, all at the same time. So, calls like this happen. It's not an outrage, but a part of the game. The call in the Slovenia game was an outrage because clearly the ref did not see a foul yet he called one.
I'd been avoiding any discussion of college football lest it renew any bitter, hate-filled exchanges between Pac 10 supporters and certain Utah fans. But a commenter asked, so here's a thread on the moving and shaking in the college football world.
1. No, U$C, you cannot pay cash to your players to play for you. And as a memo to your anonymous sources claiming that the sanctions are warranted if you're a UCLA fan: The sanctions are warranted if you care about the integrity of college sports--95% of which offers no promise of 8-figure lucrative professional contracts, just the chance to get a great education for free. The arrogance / chutzpah is just breathtaking.
2. Can we finally concede that the Big XII (and by association Mack Brown) are a joke? One team is about to move and that sets off dominos where the whole conference IMPLODES. If Nebraska, which hasn't been relevant in 15 years, is the glue that holds your conference together, then yeah, you've got issues.
3. Implications? There's lots of internet chatter about what all is about to go down. One prospect is Nebraska going to Big 10 (which now actually becomes 12 schools), and six of the Big XII coming to the Pac 10. The Pac 10 would then have two, 8-team divisions (Arizona and ASU, the last two to join the Pac 10 would merge with the 6 Big XII schools). At this point there's already several "If"s that need to happen so I'll stop with the hypotheses.
What this is showing is the complete failure of the NCAA. Raise your hand if you think these moves have nothing to do with money. I thought so. Clearly money is a huge part of college athletics (see no. 1 above). It shouldn't be. But it is. The NCAA has been an ostrich in all of this...at least when it comes to football. Long ago, the NCAA asserted its control over men's basketball and created the tournament that drives us all crazy in March. Yet when it comes to football we have independent conferences governing play. This is like 40 years ago the NFL and the AFL competing for TV/ticket dollars. It's really time to end the charade. Other than serving as a middleman between schools and TV contracts, I don't see the point of independent conferences. Put all (the old D1A) schools on the same field. Conferences become nothing more than geographic organization tools--no different than the conferences and divisions in professional sports. Bowls can stay, but they now become regional battles like in the Men's Basketball tournament. Winners play maybe 2 extra games to determine a national champion. The argument that the NCAA cares about football players and therefore does not want to expose them to extra games does not wash. If they gave a rat's ass about student athlete's they'd remove the archane rules governing scholarships.
There's lots to chew on since the Nebraska news broke. Feel free to chime. Did I mention the Big XII is a joke?
I'm sure anyone who has an iPhone and lives in the Bay Area will relate to this excruciatingly awkward but HILARIOUS video from Apple's own unveiling (or second unveiling, for those of us familiar with the internet) of its new iPhone. Pay particular attention to the audience response to Steve Jobs' call for suggestions on how to fix the problem. Given Jobs' health issues, I am somewhat surprised that he survived this experience.
Jobs blamed the many bloggers on wifi at the event for causing the meltdown. Karma for Apple's response to the Gizmodo leak?
Moving this post up in light of UCLA announcement regarding Moran's appointment. For Professor Moran's quotes from Torts in Fall 2004, see here and here.
***
The Daily Journal is reporting (subs required) that our very own Rachel Moran has been offered the deanship of UCLA's Law School:
Rachel F. Moran, a longtime professor at UC Berkeley School of Law, who took a leave of absence to help found the new law school at UC Irvine, has been offered the position of dean at UCLA School of Law, according to sources close to the selection process.
Moran, 53, a Yale Law School graduate, is known by colleagues as a dedicated scholar with high expectations for herself and others.
A Latina from Yuma, Ariz., Moran has taught torts and education and law at both UC Irvine and Berkeley, where she's been on the faculty since 1983.
Obviously this is both terrible and fantastic news. I realize the current crop of rising 2Ls have not experienced the pure terror of a Moran review session and so the announcement may ring hollow. But trust me, this would be Berkeley's loss. I suppose it's payback for Sklansky, Lester, and a few others we poached from Westwood.
News outlets are reporting that legendary Coach John Wooden is hospitalized in grave condition, though I'm hearing through the grapevine that he may have already passed [Revised per comment below]. As the token Bruin here, I feel obligated to say a few words.
Sure, he coached Alcindor and Walton, won 10 NCAA men's basketball titles, wrote countless books on coaching--in sport and in life, etc. But even as a die-hard Bruin athletics fan, I think Coach Wooden's greatest accomplishment was his character. There are far too many adorable and inspiring Wooden stories out there to share. Let's just say when Detroit Tigers' Manager Jim Leyland sent Armando Galarraga out to deliver the lineup cards to Umpire Jim Joyce today, I thought the gesture sounded like something from Wooden's playbook.
So, to honor Coach Wooden, I will take this time to reflect on how I can strive to be even fractionally more like Coach Wooden. Maybe I'll even compose a love letter. (By the way, good luck reading that piece without drowning in tears).
Professor WF referred to Article III standing as "a word game played by secret rules." Apparently it's not the only such game. Yesterday the Supreme Court issued a clarification of the Miranda rule: if arrested you have the right to remain silent, but to invoke it you must speak. Further, the right is waived by speaking.
Yes, you heard that right: the right to remain silent no longer covers being completely silent. Suspects now must say the right password, at the right time, if they want their constitutional protection.
Worse than facially illogical, the decision is just disappointing. No, I'm not talking about the disappointing IKEA-like craftsmanship that is a Kennedy opinion. I'm talking about the "net practical effect," which, as SCOTUS blog points out, will be that police can continue to interrogate a suspect, perhaps for three hours in a straightbacked chair (those were the facts of yesterdays's case), until the suspect speaks. Whatever the suspect says will be deemed a Miranda waiver, rendering the statement admissible and creating justification for further interrogation. In other words, the net practical effect will be to encourage cheap, dishonest police work.
How on earth did we get here? How did we get to a place where the constitutional right to remain silent must be affirmatively invoked, and yet may be passively waived? It is probably concern that Miranda itself was too broad, and there may be something to that -- but why not own up to the real issue?
I get that the police need to interrogate suspects. I get that suspects' constitutional rights get in the way. I even get that honoring those rights can create miscarriages of justice. But Miranda puts the burden squarely upon the police, and backhanded attempts to restructure that balance are exactly as disingenuous as they are effective.
On the bright side, as the Court completes the job of killing Miranda, it will also moot the ridiculous debate over whether people like the Time Square Bomber should be Mirandized. After all, it won't matter anymore.
- - - -
PS: Um. What am I supposed to say if this issue comes up on an MBE question?
Just want to create a more updated post for the readers to share their thoughts and gripes. June is traditionally a slow month, so we let the commenters do their thing. But June is also when you truly see the differences between each class.
The grads are entering the full-blown panic phase right around now. They thought they could catch up over the Memorial Day holiday weekend. NOPE. I'm tempted to continue the torment by sarcastically wishing them luck with keeping up with BarBri's schedule, but that's not really productive. Instead I'll calm your nerves by reiterating that things do not start to come together until at least the end of this month. It's normal to feel that things are going in one ear and out the other.
The 2/3Ls are probably craving a BLT instead of the fancy meals. More substantively, hopefully they are learning more and more about the firm culture, perhaps even a hint of office politics while at the same time applying the limited skills acquired during law school in a real world setting.
The 1/2Ls are freaking out over grades and CLR. In years past, the overwhelming consensus was that grades and CLR are small blips in what is essentially the start of a long career in this profession. They are not worth the anxiety that surrounds them. The economy may have tipped the scales a bit, but I'm not sure the underlying theme is any less valid. Use the summer to learn things, open your eyes outside of the law school setting, make contacts, etc. There are a lot of lawyers in California, but there aren't too many good ones. You tend to run into the same cast of characters. So the friendships and relationships you forge now, will come in handy in the future. This is not saying that you should befriend people to use them. Quite the contrary. But I still keep in touch with my co-extern from 1L year, despite her dislike of the LOST finale. At some point grades and CLR will take care of themselves.
