Happy Halloween, N&B!!

It's gearing up to be a scary one indeed, between Kamala Harris's "Operation Boo" (requiring all registered sex offenders to stay inside their homes with outdoor lights extinguished during Halloween night, while transient sex offenders are rounded up and supervised between 5-10pm tonight) and the OWS Oakland general strike scheduled for this Wednesday that purports to "shut down the 1%" (Big Daddy Warbucks: "Haha. Ha. Hahaha." Small Business Owner in Oakland: "Oh s*@$!")

This Is Why You Should Go See The Protests for Yourself Instead of Listening to an Armchair Conservative

Occupy Wall Street is a response to the fact 1% of this country control a huge amount of its wealth and the political process. Anyone who tells you otherwise is either ignorant or would rather try to discredit the movement by focusing on the actions of a mentally ill man in the OWS-Oakland camp this week.

Today, 3,000 people marched through the streets of Oakland. The protest is peaceful. It is on public property and is action that should be protected by the First Amendment. If the Oakland city government wanted to act in support of this non-violent action to push for true financial and government reform, it would not have sent in over 500 riot police armed with shotguns, truncheons, riot shields and tear gas. They would not have deployed APCs and used military grade sonic weapons on protestors. Anyone who thinks the Oakland police or government has acted in support of OWS or has acted reasonably needs to spend some time at the protest.

Over 100 people were arrested today. A peaceful march resulted in a violent reaction from the Oakland Police Department. Things began early this morning when police officers invaded the OWS camp, tore up tents, used flash grenades and tear gas and physically removed protestors from the plaza.

Later this evening, after the march where more individuals were arrested while protesting non-violently; police fired multiple salvos of tear gas and flash grenades at peacefully assembled protestors. The local news estimated that 500 riot police were on hand to deal with a protest that was lawful and non-violent. Individuals were shot with tear gas canisters, bean bags and rubber bullets. The police did this multiple times and without substantial provocation. The Oakland government spent thousands of dollars on helicopters and overtime in order to try and stop people from speaking out against the systemic economic inequality in this country.

I'm proud to see other Boalt students out there, both doing Legal Observer work and simply adding their voices and presence to the OWS movement. I would encourage everyone to come see for themselves what is happening in downtown Oakland instead of relying on the accounts of individuals who aren't actively going to OWS and aren't sympathetic to the 99%.

This Is Why We Can't Have Nice Things

Based on what I see on Facebook, lots of Boalties think the City of Oakland has acted terribly in evicting the Occupy Oakland protesters. But I'm at a loss to see how the City could have treated the protesters much better.

Here's my initial question: how many reports of sexual assault, violence, and fire should the City have received before it finally stepped in? Here's another: what should the City have done when protesters prevented EMTs from treating the victims, the police from investigating the crimes, or fire officials from preventing the risk of a deadly fire?

Some may argue that Oakland's show of force was unnecessary. But the facts proved otherwise. On Friday, the Mayor asked the protesters to leave, citing public health and safety concerns. The request was ignored. Meanwhile, the camp was reportedly growing more dangerous, and more militant, every day. In the end, the city was able to evict the protesters quickly and without anyone getting hurt. What else could the city really have done?

What's remarkable to me is the extent to which Oakland supported the protesters to begin with--and how little it mattered in the end. Oakland's mayor, Jean Quan, provide tons of support to both the protest and its complaints. Local politicians participated have marched and camped out on the square. But this wasn't enough By refusing the work with the City, the protesters forced the City to take action. Now that it did so, some are trying to escalate the conflict (and violence) and portray the City as a thug-booted police state. Don't be fooled.

Proposed Class Reduction

BHSA has just posted this via Facebook:

Dear Classmates,

The Dean has recently proposed reducing the size of next year’s incoming class to *235-40* students from this year’s size of 252 first-year students. Given this change in numbers, the administration has also proposed realigning the first year classes around 2 large Supermods instead of the current 3 Supermod system.

Under the current system, the class of 252 1Ls is divided into 3 Supermods of approximately 85-90 students. Each Supermod is further divided into 3 Mods, which this year number between 25 and 32 students. Students take a total of 2 Supermod courses and one with their Mod during Fall, and 2 Supermod courses during Spring.

Under the proposed 2 Supermod system, the first-year class would be divided into 2 Supermods of 120 students each. The best scenario for Berkeley students under this proposal would be: 2 SuperMods (120 students), 4 MidMods (60 students), and 8 Mods (30 students). BUT, this is assuming that 20 tenured or tenured-track Berkeley faculty are available.

The administration is anticipating lean times in Civil Procedure for next year and Criminal Law in future years, given the ongoing upper-year teaching demands on our Criminal Law faculty. As a result, it may not be possible to achieve the 2 Supermod scenario of 120-60-30. Rather, shortages in faculty would be solved by dividing the first year classes into a 120-120-30 Fall class system and 120-60 for Spring.

Regardless of how the courses are divided, first-year students would be in Supermods of 120 students.

When considering the new proposal, please also consider the costs and benefits identified by the Dean’s Faculty Advisory Committee:

Benefits:

- Under the new 2 Supermod system, the administration would less likely need visiting professors to teach the 1L core courses.

- The 2 Supermod system would require less faculty members to teach first-year course; thus, allowing for faculty to teach in the upper-level curriculum. For example, faculty could be redeployed to teach additional sections of evidence, criminal procedure, and upper-level business law courses, for which there is significant demand.

Costs:

- Teaching 120-student sections instead of the current 80-90 sections would impede their ability to teach 1L students effectively, especially with respect to encouraging widespread student participation.

- Adding 120-student sections could exacerbate what some faculty members perceive as a teaching equity problem across the curriculum.

- An important question is whether the change to 120-student class could put us at a disadvantage in recruiting first-year students, especially if our peer schools teach in smaller sections.

The Faculty was expected to vote on this proposal last Wednesday but tabled the matter until a future meeting. The Administration and Faculty is interested in knowing what Berkeley Law students think about the proposed system and will take our input into consideration when voting on the proposal.

If you would like further information on the proposal, please email me at <asalceda AT berkeley> and I would be more than happy to provide further details.

Thoughts? Off the top of my head, I have a few:

• The addition of MidMods weird me out a little. There's some sense of community within SuperMods. That gets diluted if you have three levels of grouping as opposed to two.
• On hot days, being in one of the large classrooms sans air conditioning will now feel that much more miserable.
• I'm skeptical that there's much of a marginal difference in teaching between 90 students and 120. In both sizes, it's easily to remain effectively anonymous. There will be more gunners competing with each other for speaking time, but I'm not sure that's a bad thing.
• How do LRW and WOA fit into this? Those are arguably the most important classes in law school, so keeping those class sizes small could matter a lot. (Edit: LRW and WOA class sizes will remain the same).
• Will there be an increase in ASP tutors? Having ASPs for MidMod classes could help 1Ls a lot.

Get Your Learnin' On

10-23-11: Bump. Registration starts Monday.

The spring class schedule is up. Per request, here's a space to offer opinions, questions, and advice.

I think people who have practiced for a few years are in the best position to offer advice on what classes are helpful for "real life" [said in booming voice]. As a humble 3L, I can only say what classes I've found most helpful and interesting, and those are evidence and constitutional litigation.

Please keep with good interwebs manners and use an aster*sk in professor names. Other than that, have at it y'all.

Earthquake on Earthquake Awareness Day Spurs Three Contradictory Emails About What to Do in an Earthquake

The irony of an earthquake on Earthquake Awareness Day was not lost on any of my Boalt Facebook friends, but things continued to get better as the administration sprang into action -issuing not one, but three emails about proper earthquake procedure. (For those unaware, it was a 3.9 on the new Richter scale about 6 miles beneath the Clark Kerr campus).

First there was some controversy about whether or not the earthquake sirens earlier had gone off properly (it was unclear to me if these sirens were meant to simulate an earthquake or respond to one - if it's the latter why didn't we hear them after the actual earthquake about four hours after the drill?).

But, things got better when the first email stated, "If you stand in a doorway, brace yourself against the frame and watch out for a swinging door or other obstructions. Avoid glass doorways (such as the doors to Steinhart, the doors leading from and out of the Main Reading Room into the old library lobby)."

Apparently, this rubbed some earthquake response enthusiasts the wrong way and individuals wrote in to say that the logic for standing under a doorway was shaky and that, "you should not seek out a doorway in an earthquake if you can avoid it. Doorways are not necessarily (as was once thought) strong spots in buildings." Before anyone knew it, we had an earthquake procedure rumble on our hands.

This advice left doorway safety proponents in an unstable position, and so there was more feedback, which lead to a third email where the topic of standing in doorways was explored further, "The doorway issue depends so much on what kind of doorway you are in, how strong the wall is that the doorway is in, and how strong the door frame and reinforcement is. But of course this is information that you rarely have when you are deciding whether to leap into a doorway during an earthquake. " The conclusion (for now) is that unless you live in an Adobe house, stay out of those doorways.

Personally, I'm a little rattled that this information wasn't properly sorted before the earthquake that happened on Earthquake Awareness Day.

1Ls Assassinate Each Other

That 1L just got served. Literally. Sort of.

In a feat of awesome nerdiness, the 1Ls have organized a game of assassin. Except, instead of squirting each other with water or tagging each other, they're serving each other.

The jurisdiction? "The District Court of Some Place."

The case? Pee Wee Herman v. "The Target." (I'm not sure when Pee Wee got so litigious).

More proof of the old adage that awesome law school classes arrive every other year.

100 Years of Boalt

Or more accurately, 97 years of Boalt and three years of being unsure what to call it. A few of my Facebook friends posted the below video, which celebrates Boalt and what makes it special. Check it out, then let's discuss in the comments.

Bar Application, Graduation, MPRE & Moral Character Stuff

In case you missed it, here's a summary of today's lunch session with Dean H*rshen about applying for the Bar and going through Moral Character Determination. I'm sure I missed a few things, so if you have anything important to add, do so in the comments.

First, there were handouts. You should read them. Additionally ...

Registration and Bar Application

• It's really important that you register as a law student before you apply for the bar. Those are two separate steps that take time to process, so you can't just do both in one go. The law school told us to register during our 1L year, but if you're unsure about your status, you can check it out here.
• If you're taking the New York bar (or any other bar for that matter), let the Registrar know! The law school will automatically certify graduates for the California bar, but students from other states will need to submit a form to the registrar by a certain deadline. You may also need to submit other forms, like a handwriting sample for New York. You should get all of this to the registrar as soon as possible.

Graduation

• If you have IP grades ("in progress"), talk to your professor soon to get those taken care of. It's bad if you can't graduate because the professor you need to sign off on this is on sabbatical.
• Writing requirements should be done by this semester.
• The registrar will start sending out individual e-mails to students about any missing graduation requirements, starting next week.

MPRE

• If you are taking the MPRE this November, John St*ele will be holding an MPRE review session at 5:30 on Thursday, October 27, in Booth. See K. H*lmquist's e-mail.

Moral Character Determination

• You can fill it out at this link.
• Fill it out now! It takes a long time to complete and to process. Technically, you don't need to have this done until you take your oath in December, but it's best to get this all done before you take the bar, so you don't have to worry about any of this while studying for the bar.
• At least 4 people asked this, but yes, LLM and international students need to go through the Moral Character Determination process as well. If you want to sit for the bar, you have to go through moral determination.
• You need to have your fingerprints taken. Boalt doesn't do fingerprinting, so ask the bar for locations
• It's OK to have a few "youthful indiscretions" on your moral character determination, but it's better to be upfront about this rather than try to hide it. If you fail to mention something, and it comes up later during the moral character review, that's bad.
• Similarly, if you have anything that might impact your moral character determination, like a bankruptcy or criminal record, that you did not mention to Berkeley, you should talk to Dean Hirshen. It's important that information the Bar has about you match the information the school has.
• Even if you've taken a moral character determination in the past, e.g., for a security background check, you still need to do this one as well. But mention the previous one in your application.
• When putting down your employment history, if your employer no longer exists, there should be a box you can check to note this. If your boss is no longer there (but the company still is), just put down the company and boss as is, and let your old company deal with it.
• When putting down the places you resided at, if you were travelling for an extended period of time but didn't have any single particular place you stayed at, just list your permanent residence.
• This sounded weird to me, but when listing the time and places for your your residencies, you also need to note those brief periods during winter or summer break where you were at home.
• A moral character determination is good in California for three years, so if you're not taking the Cal. bar but might at some point in the next three years, get the moral character determination done now.

That's all I have. You can also view posts from previous 3Ls about this process. Feel free to add in the comments.

Domestic Violence Awareness Month

BHWA has put up a display promoting Domestic Violence Awareness Month by Room 105. Visually, it's quite effective.

Tea Party on Wall Street

As a comment on the thread below observes, the Occupy Wall Street protest is interesting to all but particularly relevant to Boalties working in New York. So, here is a thread on the issue. For unrelated reasons it’s a busy day for me so I’ll kick this off with three very unstructured off-the-cuff thoughts and let it run from there.

1. I don’t understand how – political objectives aside – this protest is meaningfully different than the many Tea Party protests of late. Both are forms of populist rage against what the protester feels is a large, coercive, dangerous institution (the government according to one group, and the business/financial world according to the other). For me, this makes the media coverage of the Wall Street event sort of funny to watch: you can put Jon Stewart’s words about the Tea Party directly into Bill O’Rilley’s recent tirade about Occupy Wall Street, and you can put O’Rilley’s laudatory words about the Tea Party directly into Stewart’s commentary on Occupy Wall Street. All of which shows, or should show, that both are agenda-driven hacks (though only one insists he is a legitimate newsman).
   
   2. That quirky aside shouldn’t distract you from the larger themes at work in both protests. Our country is, and always has been, populated by (1) a relatively wealthy and influential, but small, group of people with the power, and (2) a much larger, poorer, and less influential group tasked with the mundane job of keeping the wheels turning, roads paved, shit shoveled, etc. Sometimes the taskees get (justifiably) pissed off, and now more than ever it makes sense to feel that way. It’s hard not to be angry once you realize that we live in a decade when literally millions of people have lost their homes, retirements, and jobs (all of which contribute to a person’s sense of self worth) while the people who are responsible for causing those losses are enjoying unfathomable bonuses and sipping champagne while looking down from balconies upon the masses.
   
   3. The question I can’t answer is why the protesters believe a protest is the best way to approach the issue. How does a protest change or even bear up on the basic framework at issue: that poor working people spend their lives generating value for wealthy banker types to trade for commissions in the stock market, all while the worker-types insure the banker-types’ losses and the banker-types take home the profits? A protest might make people more aware of the issue, but the social problem here is not that people are unaware of the inequity, pain, and suffering caused by the financial collapse. A protest might make people feel like party of a community, but the social problem here is not that it is lonely on the short end of the stick. A protest ties rather nicely into the values and events upon which our country was founded – i.e., free speech and the American Revolution – but I’ve never been a fan of originalist approaches to contemporary problems. A protest might give oppressed, confused, angry people an opportunity to vent their anger and frustration, but I don’t think anger and frustration is the root of the problem. The root of the problem is that the wealthy are doing what the wealthy, as a group, always do: using political and social institutions to protect what they value, which is their money and status. I can’t see how a protest bears upon willingness, or their ability, to do so.

All of which is rather depressing and negative. Sorry about that. But I really do see this as the flavor of the month in a series of high profile, ineffective attempts to use a public shouting match to address our country’s class issues. Hopefully Boalties in New York have a different perspective.

SB 185 Follow Up

Although the passing of Steve Jobs is no doubt the topic of the day, law students should note the passing of another influential thinker: Derrick Bell, often credited as the father of Critical Race Theory. But because theory is boring, I’m going to write about one of the more recent applications of race-conscious thinking: SB 185.

SB 185, which prompted the baking of many tasty treats last week, authorizes the University of California to "consider race, gender, ethnicity, national origin, geographic origin, and household income, along with other relevant factors, in undergraduate and graduate admissions, so long as no preference is given."

The last bit of that is crucial, as Prop 209 prohibits giving "preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin". The obvious question: Can you "consider" race, gender, and other immutable characteristics without giving "preferential treatment"?

As our own Professor Oppy points out, while SB 185's authors intended to push as far as federal precedent in Grutter v. Bollinger would allow, it's unclear how far the definition of "preference" goes under California law. So in the spirit of law school, let's throw out some hypos.

Plus Twenty - What's clearly not allowed is assigning an extra twenty points to students of a particular race. That's the scheme struck down in Gratz v. Bollinger. And it's literally a preference based on race.

Critical Mass - What about letting enough students of a particular minority group in to build up critical mass? Grutter suggests this is OK, but most strategies to build critical mass look a lot like "a sliding point scale of preference" or "preference until we reach a certain quota".

More importantly, Grutter itself suggests such a scheme is a form of "preference" and wouldn't pass muster under California law. 539 U.S. at 342. Grutter says that critical mass can be a sufficiently compelling purpose for allowing racial preference, but Prop 209 bans preference altogether.

Hardship - What current law clearly does allow is consideration of hardship. Suppose an applicant writes a personal statement about being the only Latina in an all-white school, and about her difficulties in overcoming stereotypes, cultural barriers, and so forth. While her Latina identity is a crucial part of her story, the overall theme is about overcoming hardship, not race.

But it's unclear whether SB 185 really adds anything here. Personal statements and concerns about hardship are fuzzy. Admissions officers can already argue they simply found one statement more persuasive than the other. The fact the most persuasive statements tended to be about overcoming racial hardship? Coincidence.

Eminem and Yao Ming - In the above examples, the applicant is affirmatively raising the issue of race. What if the applicant doesn't raise the issue though? For example, suppose a white rapper or an Asian basketball player apply, but don't explicitly mention how their race has affected these activities. May the University assume that white rappers have more to offer than black rappers? Or that Asian basketball players are more likely to experience hardship than black players?

Or more likely, may the University discount the effect of low SAT scores for a particular minority group because those minorities have historically scored below average on standardized tests?

This looks like preference to me, but it's not the same kind of preference as a simple +20 points for minority students. Rather, it looks like a set of multiple constantly shifting preferences, the overall effect of which is somewhat unpredictable. If SB 185 makes it to the courts, I'd expect that it's these sort of concerns that give judges the most trouble.

From a public policy perspective though, is this what we want? I'm a huge fan of diversity in theory. But I get queasy thinking about admission officers making some subjective valuation of white rappers vs. Asian basketball players. Or Mormon civil rights activists vs. lesbian ROTC cadets. Turkish English majors vs. Native American nuclear physicists. For all our concerns about correcting old biases, this also creates a lot of room to hide new ones.

Thoughts?

Update: Jerry Brown has vetoed SB 185.

Steve Jobs

Apple has announced the death of Steve Jobs tonight.  When I began college, people using Apple products were either graphic designers or essentially the comic book store guy from The Simpsons.  Its founder had just returned to the company as the CEO.  In the decade or so since, "His influence went far beyond the iconic personal computers that were Apple’s principal product for its first 20 years. In the last decade, Apple has redefined the music business through the iPod, the cellphone business through the iPhone and the entertainment and media world through the iPad. Again and again, Mr. Jobs gambled that he knew what the customer would want, and again and again he was right."

Even as a law student, I sneered at those using Macs, who were forced to borrow laptops to take finals.  "Viva la Windows dominance," I'd sneer.  Now, the prevalence of Apple products is almost surreal.  If I'm not mistaken, you can even take the bar on a Macbook.  Myself?  You could say I've undergone a mild reformation.  As an owner of an iPhone, iPad, at least half a dozen iPods, and AAPL shares, I mourn the passing of Steve Jobs.  I hope you'll join me in sending your thoughts and prayers to his family and loved ones.  

Time to break it off with your undergrad piece with the sniffles.

Main campus has been sending emails today warning of a mumps outbreak on the Cal campus. I'm sorry, but WTF? Don't you have to prove you got an MMR vaccine to be enrolled? And am I so old that the children of the Jenny McCarthy vaccines-give-you-autism generation are in college?

Luckily the symptoms of mumps are really distinct:

Fever, headache, muscle aches, fatigue and loss of appetite, swollen or tender salivary glands under the ears, jaw or under the tongue, on one or both sides of the face.

Oh so it's exactly like having the flu or a cold or allergies or any other mundane illness? Awesome.

Like most viral infections at U.C., I'm betting this originated at Kips.

Live Streams Of Interest

First, you can watch the Judiciary Committee hearing on the nomination of Miranda Du (Boalt '94) to be a United States District Judge for the District of Nevada and Michael Fitzgerald (Boalt '85) to be a United States District Judge for the Central District of California.

Second, I have been watching the trial of Dr. Conrad Murray with some frequency here.  If anyone is interested in litigation at all, then I strongly recommend watching the trial live for even a few minutes.  There have been multiple instances of both effective and ineffective lawyering.  One example that jumps out at me is the cross-examination of a medical monitoring device manufacturer.  The defense ended the cross by getting the witness to admit that the only difference between the model used by Dr. Murray and other models is the lack of an audible beep.  The prosecutor then rose on redirect and asked, "that's a pretty big difference, yes?"  "Huge difference."  Very effective.  Also note how this judge is managing the courtroom.  Lawyers are immediately interrupted when they start on speaking objections or when they start questioning a witness before reaching the podium.  Those may seem like trivial matters, but they make the difference between a trial that progresses on a tight schedule and one that goes off the rails (e.g., OJ's criminal trial).

Back to your regularly scheduled plumbing woes.