Stories from the fruits and nuts of the University of California, Berkeley, School of Law (Boalt Hall)
Friday, July 30, 2010
Congrats on the bar takers for finishing (unless you're still on the phone with ExamSoft). And now for something completely different.
Year in and year out, people list "Travel" or some variation of it as an "Interest" on their resumes. The priceless Disco Stu (whose prior OCIP tips are here), has the following gchat status this morning, with which I could not agree more:
I wish people would stop listing "travel" as an interest on their resume. "Oh, you like vacationing in the Caribbean do you, what a unique and intriguing tidbit of individuality. Do you also enjoy cash?"
I am mentioning this in part in jest, but in part seriously. We rarely think about the collection of resumes that attorneys and recruiters see during interview season. And believe me, a lot of you list travel as an interest. So, I would strongly suggest all the 2Ls getting ready for OCIP to carefully think about any interests they may have listed on the resume and eliminate any that are actually fairly generic and hardly reflective of your individuality.
Update: Congrats all, neato gang. I have all my fingers crossed for you (not that any of you need it). This wait until November is going to terrible, but in the mean time, grab a beer, sit back and watch the Mad Men, the best show on TV. I'm thinking about all you. I ... I love you.
Uh... wasn't that supposed to be the easy part? I feel like they were rude not to provide lube.
Also, it's pretty cool that Wills and Civ Pro are now MBE topics.
NYT coverage here and Judge Bolton's opinion is here. What really caught my eye was a line in the NYT report that legal experts think this ruling is headed for the Supreme Court. Maybe I misread it, and they meant the case is headed to the SCOTUS, but I think they meant appeal of this ruling will end up in the SCOTUS. With all due respect to these legal experts, I beg to differ.
I managed to glance through Judge Bolton's opinion and she applied the correct four-step analysis for a preliminary injunction mandated by the Supreme Court. For the uninitiated, in the past five years or so (give or take), the Supreme Court has been taking care to rigidly define the factors that courts must consider when granting equitable relief, in particular when granting injunctions. These cases are often at the expense of the Ninth Circuit, the most recent example being the United States Navy Sonar case.
With that in mind, and with my assumption that the Judge correctly applied the standard articulated by the Supreme Court, the Ninth Circuit will not reverse (and invite yet another Supreme Court review of its preliminary injunction jurisprudence). Similarly, when the issue at this juncture is the application of the relevant equitable factors, there is no way the SCOTUS grants cert.
Obviously this is a hot-button issue with lots of opinions that go beyond the relatively boring area of preliminary injunctions. So consider this an open forum.
No, this is not some reimagination of Homer's classic. Rather it is the lawsuit that the Tennessee Titans filed today against the U$C Trojans and Lane Kiffin for intentional interference with contract.
For the college football fans out there studying for the bar, this can be a nice (if not comical) way to review some key concepts: jurisdiction, diversity of citizenship, notice pleading, etc. For a complaint written over the weekend, it's not bad. It even has gratuitous jabs at my sanctioned rival:
On Friday, July 22, 2010, while the Pola Contract was still in full force, Kiffin, individually and in his capacity as agent of USC, in furtherance of a culture of violation and avoidance of respect for the sanctity of contract, which Kiffin similarly practices...
Compl., ¶ 15 (emphasis added). But is that enough? I don't know enough (or anything) about Tennessee law to say for sure, but it sure doesn't look like it. A quick search on Google Scholar revealed the elements of the Titans' statutory and common law causes of action are the same. Hauck Mfg. Co. v. Astec. Industries, Inc., 375 F. Supp. 2d 649, 659 (E.D. Tenn. 2004) ("In order to recover under either the common law or statutory action, a plaintiff must prove (1) there was a legal contract; (2) the defendant was aware of the contract; (3) the defendant maliciously intended to induce a breach; and (4) the defendant's actions proximately caused a breach and resulting damages"). Is there enough to show that USC maliciously intended to induce breach? Hard to say without looking at a lot of Tennessee cases on the definition of maliciously inducing, unfair or deceptive practices, and the other elements. But at first blush, there's just nothing in the complaint that indicates any unfair or deceptive practice. You can always offer someone a better contract. You can't do so unfairly or deceptively.
So why the quick lawsuit by the Titans? Isn't the normal way to work these things out to ask USC to buy out the remainder of the contract or something? I think the barbs in ¶¶ 15-16, especially the allegations that Kiffin went after Vikings (and former UCLA) RB coach Eric Bienemy, smell like some sort of bad blood that goes beyond the simple hiring of a coach. Me thinks the State of Tennessee will not forgive Lane Kiffin for "abruptly depart[ing] after one season, leaving the University of Tennessee without an experienced football coach. . ." Compl., ¶ 16. And the Bienemy allegation implies other teams in the league may have been equally ticked off...just lacked the proper motivation to air it in open court.
As mentioned before, these predictions are very nearly worthless, and the reason I'm posting them the day before (vs. earlier) is because I don't want anyone to give them any weight. But without further ado, my unscientific data analysis and gut lead me to believe that the following will be our essay topics:
(in no particular order)
1. Con Law
2. Wills/Trusts crossover
3. Real Property
4. Torts/Remedies crossover
5. Evidence/Crim crossover
6. Professional Responsibilities
In particular, I "feel" that Con Law will focus on federalism, Property will be land conveyance/mortgages, and Torts will be product liability.
So there you have it. But my most important prediction of all: we're going to work this thing over. Hard. There's not one Boaltie that doesn't have the capacity and smarts to really crush this thing out of the park. Good luck y'all!
Update, July 16 & 20, 2010: Those familiar with BarBri- and MBE-type multiple choice questions will enjoy this. It keeps making me laugh.
Update, July 15, 2010: Bumping up to the front of the line . . .
Update, July 11, 2010: Bump. Here is the previous 2010 bar exam thread; let's use this one comments, gripes, questions, and support. Also, apologies to folks who make comments and they don't immediately appear. I don't know exactly what has been going on, but it is well-documented that Google blogger platform sucks in fundamental ways. All I can do is apologize, and hope the glitch fixes itself, or heals, or whatever. _______________________
Ugh. I doubt I am the only person who feels irritated, stressed out, and grouchy these days. Is it really already July? This word cloud, which I made from the sample answers to the 2008 and 2009 July California Bar Exams, rather nicely describes the space between my ears:Click the image to enlarge.
Who would have guessed that Paul, Dave, and Diane, were as important as Congress?
Tune in to CNN's "State of the Union" with Candy Crowley this Sunday at 6:00 am and 9:00 am Pacific for an interview with Dean Edley (via Hotline on Call):
Guests for Sunday... Join us this Sunday for State of the Union with Candy Crowley.
General Michael Hayden, whose past job credentials range from Director of the CIA to the National Security Agency, will sit down and talk with Candy about the current state of our country's national intelligence program.
Mort Zuckerman, editor-in-chief of U.S. News & World Report and Steve Forbes, editor-in-chief of Forbes magazine, will center a conversation around the recently passed financial reform bill.
Closing the hour, Dean of University of California, Berkeley School of Law and past member of the Commission on Civil Rights, Christopher Edley Jr., and contributing editor to the Manhattan Institute City Journal and conservative commentator John McWhorter, will also be joining us to discuss how the NAACP's feud with the Tea Party and the Shirley Sherrod debacle fueled a debate of politics and race in America. [emphasis added]
N&B Congratulates Victoria Nourse for her Seventh Circuit Nomination (Unlike Boalt)
Boalt Hall has always been a bit parochial. Like Paris, it tends to divide the country up into two regions: its own (California) and "everywhere else." Still, it's suprising that Boalt's webpage hasn't gotten around to congratulating Victoria Nourse (J.D. '84), President Obama's second nominee to the Seventh Circuit Court of Appeals.
A few interesting facts about Prof. Nourse's nomination. First, she has impeccible Democratic credentials. As a congressional staffer, she helped draft the Violence Against Women Act; as an academic, she focuses on women's issues.
Second, Prof. Nourse is nominated for one of two "seats" traditionally allocated to Wisconsin. The other Wisconsin (non-senior) circuit judge is Diane Sykes--a star of the conservative movement and one of David Lat's favorite "judicial divas." It would be interesting if Wisconsin had two young, smart, female circuit judges of diametrically-opposed political and jurisprudential views.
Third, Prof. Nourse's father-in-law, Richard Cudahy, is a senior judge on the Seventh Circuit. In fact, Nourse is nominated for the seat that Cudahy filled from 1979 to 1994. I guess Boaltie judges like to follow in their parents' footsteps!
Yes, Oakland is STILL F-ing Dangerous (or, Thank Goodness for McDonald v. City of Chicago?)
A while back I wrote a post entitled "Oakland is F-ing Dangerous." I was responding to what I felt was a disingenuous and rather slimy column by the Oakland Tribune's editorial board, which was in turn responding to a Boalt Hall administrator's claim that Oakland may be a few things other than "vibrant" and "thriving." Not everyone agreed with me; in the comments I was accused of being privileged and of being insensitive and of making unfair generalizations about an entire city.
Well, I'm sticking to my guns:1 Oakland is f-ing dangerous. Sure, the people most at risk of violence are undoubtedly from the poor, the Footlocker employees, and the Korean grocery store owners. But starting this month I think it is safe to say that things just got a whole lot worse for everyone. Why? The SF Chronicle is reporting that after laying off 80 police officers, the Oakland police department will no longer be able respond to, or investigate, nonviolent crimes.2 "Nonviolent crimes" include, among other things:
Restraining order violations
Court order violations
That's right. The city is urging its residents to report "lesser" crimes like burglary, vehicle theft, restraining order violations, or runaway children, by filling in a form online. The form will be used only to collect data; none of these crimes will be investigated.
In other words, the City of Oakland now takes home burglary exactly as seriously as the City of Berkeley takes pot smoking on Telegraph Avenue. Arguably that has been Oakland's policy for quite some time, but now it is official: if you call the police because your ex-husband is violating his restraining order, you will be directed to fill out an online form. Ditto a report of a home burglary, or vehicle theft. Or for that matter, theft of your computer: report that online, too.
To put it a third way, if you are interested in violating a restraining order, robbing a home, or stealing a car, go to Oakland. It's open season.
______________________ 1 Figuratively, or literally? 2 Note that to learn about this new official policy, an Oakland resident must cross the bay and read San Francisco's newspaper. The Oakland Tribune hasn't a blip about this new policy change, probably because it calls into question the city's "vibrance."
Like most people with an internet connection, I lost irretrievable minutes of my life listening to Mel Gibson's racist, enraged, and occasionally terrifying telephone conversations with the mother of his child this week. I stopped listening after the third one, but I think we're on tape number five now. Obviously, the things Gibson says are abhorrent and prove that he is an irredeemable asshole who should never again be respected or admired by anyone. Even so, I can't seem to figure out why he is not also the victim of a crime.
California's anti-recording statute basically makes it a crime to record a private conversation unless both parties to the conversation consent. Since it's doubtful Gibson consented to these recordings, the only possibly applicable exceptions are Sections 633.5 and 633.6, which state:
633.5. Nothing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m.
633.6. (a) Notwithstanding the provisions of this chapter, and in accordance with federal law, upon the request of a victim of domestic violence who is seeking a domestic violence restraining order, a judge issuing the order may include a provision in the order that permits the victim to record any prohibited communication made to him or her by the perpetrator.
Concrete information on whether and when Oksana Grigorieva filed for a restraining order is hard to come by, so her best bet is probably Section 633.5. But under that section, she would have to prove she made the recordings for the purpose of obtaining evidence related to a felony, and not for some other purpose, like justifiably ruining what's left of Gibson's miserable career. Releasing the tapes to RadarOnline every couple of days seems to undercut that argument.
So what do you think, California legal experts? Is there a crime here? Would any prosecutor bother pursuing it? Do any of you still like Braveheart? Why?
If you are a Boaltie and don't know who Uncle Zeb is, shame on you! Run to the library and ask to see the "Zeb Book." Do it now - you will be glad you did.
If you are an alum who misses the musing wisdom of our communal cosmic companion, you're in luck. "The Best of Uncle Zeb" has been posted online by the Green Bag. Here is a link, but beware - the pdf is almost as large as Zeb's brain.
As part of my ongoing effort to have a heart attack before I'm 30, I read the Drudge Report every day. Imagine my surprise when today, I clicked on a random link and saw dear ol' Dean Edley staring quizically back at me! It seems our illustrious Dean has made national news by advocating a fully-online degree program at UC Berkeley. (Drudge's reasons for posting this remain mysterious, as it neither induces panic about the deficit nor refers to a place that is unusually cold for the season.) An excerpt reflecting the two sides of this issue:
"We want to do a highly selective, fully online, credit-bearing program on a large scale - and that has not been done," said UC Berkeley law school Dean Christopher Edley, who is leading the effort.
. . .
"We find Dean Edley's cyber campus to be just the beginning of a frightening trajectory that will undoubtedly end in the complete implosion of public higher education" in California, Berkeley doctoral student Shane Boyle testified.
While I hesitate to throw my support behind anything that is absolutely certain to doom the Earth, I must admit my experience with Barbri has warmed me to the idea that online education can really work. Yes, I dread turning on that lecture every morning, but I also learn about as much from it as I did in a 120-person lecture. (Although I do miss supplementing the lecture with 20-minute debates between H*rsh and Schw*rtz about the finer points of Epstein's economic approach to Torts.) Plus, the boundary-less nature of the system means that I can learn Con Law from Chemerinsky himself, rather than whatever professor happened to teach at the school in my area. And I think an online lecture from Chemerinsky is at least of equal value to an in-person lecture from anyone else.
But, of course, there are downsides. My college experience was made up of more than simply watching lectures and taking tests. In fact, I learned far more from the people around me, extra-curricular activities, and weekend benders than I did in any of my courses. Such experiences would be nearly impossible to duplicate over the interwebs (although you still might see the occasional double-rainbow). Also, were online education to become widespread, it would likely lead to some of the dire results Boyle predicts. After all, if everyone in the country can take Con Law from Chemerinsky, why would a school bother to hire anyone else?
Online college should never replace the brick and mortar system, but that doesn't mean it has no place in a school like Berkeley. While plucky young 18-year-olds should never even think about missing out on the best four years of their lives, an online program could be a boon for qualified older students who, for whatever reason, cannot easily move to California or even leave their homes all day. Yes, they'd be missing out on some of the intangibles of higher education, but with the right admissions requirements and a real dedication to creating a great program (something better than the online Barbri system, hopefully), I think there is something of real value to be obtained from a digital Berkeley.
Now if we could only get them to consider making Nuts and Boalts a seminar course...
My co-bloggers through the years and myself are former students of Professor Frickey. I understand the current Boalt community received news of his passing from Dean Edley, but I think many alumni may not have yet heard, hence, this post.
_________ Update (Patrick): Here is a very, very touching video:
John Steele (this one, not that one) has made Boalties a generous offer regarding the Professional Responsibility component of the California Bar Exam. Here is his message:
For Boalties, I am offering some free documents that may help with PR essay questions, and will hold a free webinar to explain my suggestions. At this stage of your preparations, if you’re comfortable with your approach, please feel free to stick with what you’re doing and ignore my offer! Don’t fall prey to overload!
The documents are a few appendices from my MPRE prep outline. Appendix C lists major difference between the California and ABA approaches to PR. Appendix F, the key one, uses three mnemonics for organizing an answer to a PR essay question. (Please don’t distribute the document to others. Have Boalties email me directly to request it.) Appendix D lists all the PR question topics for the past decade, just to give you a feel for what recurs.
Then, on Tuesday, July 13th, at 4:00 pm, I will hold a free webinar explaining my mnemonics for answering PR questions on the California bar examination. Email me if you’d like the registration link. After the free webinar, the presentation will be available on-demand for $10 (to help defray the costs of the webinar service). I’m trying to limit the free webinar to Boalties, because of bandwidth-cost issues, but you can have unlimited people watching the computer where you’re watching it.
Email me to get the free document and the registration link.
Again, if you’re OK with your current PR prep, seriously consider just sticking with what you’ve been doing.
Update, July 08, 2010: Little bump here, as the jury has returned a verdict.
Update, July 02, 2010: Much appreciation to one of the anonymous commenters for drawing attention to this excellent rundown on the trial, the charges, and the potential aftermath. Thanks. _______________________________
This thread comes per comment requests in the bar thread.
The murder trial for the BART police officer who shot and killed Oscar Grant is wrapping up. The defense has rested and the jury is expected to begin deliberating on Friday.
This morning the judge issued a tentative order taking first degree murder off the table, ruling that the facts as presented to the jury could not support the premeditation element of the charge. It looks like the jury will be allowed to consider second degree murder and manslaughter, but expect some legal wrangling over the next two days -- the defense wants the jury to consider only murder or acquittal, and noting between. (My barbri outline suggests the defense will fail on this point -- lesser included offenses, baby -- but if they do win, I'll joyfully add the incident to my list of indictments against barbri.)
Meanwhile, Oakland just laid off ten percent of its police force. What timing. I am not sure whether the city has already sent those 80 police officers packing, but as the commenters in the other thread rightly suggest, an acquittal verdict seems likely to put Oakland in a state of, um, "disquiet."
. . . also. Somewhat apropos to this thread is this story about a BART officer who tased a fleeing man at Downtown Berkeley for fare evasion. Without sharing my own thoughts, suffice it to say that Mehserle's jury likely knows nothing about it.
Looks like the Class of 2010 had the right instinct with respect to the graduation speaker - unlike Uncle Zeb (who was quoted voraciously at the Greek Theatre in May) Professor Murphy has left the building.
235,000,000 of America's Firearms Killed No One Yesterday
Anticipating that its gun control law will be struck down on remand after last weeks decision in McDonald v. Chicago (that Second Amendment case), the City of Chicago has unanimously passed what it says is the strictest handgun ordinance in the country. For its part, the NRA is up in arms.
Chicago's concern -- rightly -- is with the city's incredible gun violence rate. But the ordinance it has passed is absolutely insane. Take a look at the new law's more prominent features:
Prohibits residents from having more than one handgun in operating order at any given time.
Prohibits people from owning a gun if they were convicted of a violent crime, domestic violence, or two or more convictions for driving under the influence of alcohol or drugs.
Requires prospective gun owners to be fingerprinted, pay a $100 fee every three years, pay for a four-hour class and, and pay for training at a gun range; all while *prohibiting* any of those classes from taking place within city limits.
Prohibits people from leaving their home with a handgun in operational order.
Requires residents residents convicted of a gun offense, including any of the above, to register with the police department, much like sex offenders.
Punishes violations with a fine of up to $5,000 and 90 days for a first offense, and a fine of up to $10,000 and six months for subsequent convictions.
I understand the city's duty and desire to protect its citizens and curb violence. I can only imagine the crushing feeling of responsibility that must accompany each newspaper or radio report of a shooting, robbery, or assault in the jurisdiction for which a legislator is responsible. But however noble its motivation, Chicago's approach is more than questionable given that for the last 28 years Chicago has had a total ban on handguns, and yet it remains one of the most dangerous cities in the country. The reason is, or should be, fairly obvious: it is ludicrous -- ludicrous -- to expect that firearms ordinances deter armed robbers.
Rather than reducing gun violence, the ordinance is going to sting lawful firearm owners who trip over the web of requirements, or who cannot afford to pay the confusing array of fees. The ordinance will make lawful people resent the city government and it will make the city officials resent the Supreme Court, all while doing next to nothing to actually address illegal gun violence. Eventually, of course, this new law will be struck down -- but not before a whole bunch of people (public and private) invest a tremendous amount of time, energy, and money, that would be better spent elsewhere.
In short, when I look at Chicago's behavior here I see stubborn, martyr-esque refusal to acknowledge a constitutional right. It suggests dogma in the face of the facts, and denial in the face of the law. It is not all that different from historical attempts to undercut the Court on school integration, or voting, or abortion. If Chicago really wants to do right here, I am certain that there are more effective ways of addressing public safety than picking fights with the NRA. Especially when the Supreme Court of the United States has made clear that in this one, it's on the NRA's side.