Tuesday, March 27, 2012

Berkeley in the final four!

Monday, March 26, 2012

ACA Open Thread

I am diligently producing billable work eagerly awaiting the airing of today's oral arguments on the ACA.  The C-SPAN link is here and of course SCOTUSBlog has extensive coverage.  This is the open forum that all you Anti-Injunction Act junkies have been waiting for.  Thoughts, rants, comments, links to other coverage of note...have at it.

UPDATE 1:  Five minutes into the coverage on C-SPAN3 and already a caller is complaining about the "New World Order" and "making us servants."  Noted media personality, Kent Brockman, captures the mood perfectly:

UPDATE 2: I remain mesmerized by callers to C-SPAN, sort of like people who watch daytime talk shows, I suppose. One caller, professing opposition to the law, proceeded to make all the arguments in the law's favor.

"First of all, no one is dying without health insurance, you can go to the hospital and get treatment."

Hmmm. You mean by adding to the overall cost of healthcare?

"Also, this law would affect Medicare and seniors."

You don't want the government to touch your government mandated health insurance?

Another caller, "I also think this will implicate euthanasia as panels will decide who receives care and who doesn't."

Currently, that's done by for-profit insurance companies (unless you're in Minnesota). In fact, anyone who has clerked or even externed for a judge has dealt with sometimes heart-wrenching ERISA claims against plan administrators who routinely deny coverage.

UPDATE 3: Lyle Denniston's recap of today's argument captures the heart of the circularity I was thinking about on my morning drive: If the ACA is so complicated that striking the minimum coverage provision would require killing the whole thing, then why is the minimum care provision not a valid exercise of Congress's necessary and proper clause?

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Thursday, March 15, 2012

The Two What?

This year marks the 20th anniversary of the release of one of the greatest legal comedies, My Cousin Vinny and some websites are paying homage to the classic, in particular because it touches on so many aspects of law and lawyers (h/t: ATL).  Even though I love the movie, I've been reluctant to take the time to write a post about some silly nonesense while tying it to a movie about the Deep South starring the father of the bride of the Pauley Shore classic Son-in-Law, the kid from Karate Kid, and the monster from The Munsters.  But in the last 24 hours, these three separate items reminded me of the movie:

I shot the clerk?

Orin Kerr blegged yesterday about what material is helpful for learning Evidence Law.  Well number one on that list is a moped riding law professor with chiseled hair.  After that, My Cousin Vinny was the single-best source I relied upon to learn evidence.  Even to this day, I often think of the movie when dealing with evidentiary issues.  Why?  Because the movie touches on nearly every aspect of Evidence Law.  That's why I would encourage both teachers and students of Evidence Law to watch the movie ad nauseam.  It comes in handy.  If there is one subject that isn't dealt with adequately by the movie, it's probably the hearsay rule.  Even then, if you're an evidence nerd, you probably noticed the use of the opposing party statement exception from the definition of hearsay when the Sheriff testifies about interrogating the younger Gambini: 
Sheriff Farley:  "I asked him if he did it.  And he said, 'I shot the clerk.' I asked him again.  And again he said, 'I shot the clerk.'"
If only the FRE addressed Brooklyn-speak.  But in all seriousness, if you become a litigator, particularly in larger matters, you will almost certainly encounter damaging e-mails that the other side claims to have been written in jest or as sarcasm or satire, etc.  Don't be shocked if the deponent looks at the damning e-mail and says, "Yeah I wrote that, but I was clearly joking.  See the smiley face there?"

And what is this a picture of?

Speaking of depositions, co-blogger Patrick complained yesterday about law school not teaching the importance of laying a proper foundation.  Putting aside the rather weighty question of how well law school prepares young graduates to actually practice law (which is actually the subject of an entire scene in the movie), all fans of the movie know that before Vinny could crack the case in open court, he had to lay a proper foundation for the key photo. 
Vinny:  Your Honor, this is a picture taken by my fiancee outside the Sack O' Suds. Do we agree on this?
Prosecutor: Yeah.

Vinny: Miss Vito, did you take this picture?
Ms. Vito: You know I did.
Vinny: And what is this picture of?
Ms. Vito: You know what it's of.
No matter what case, no matter what the circumstances, I always think of "You know what it's of" to remind myself that every exhibit needs a proper foundation. And yes, the above dialogue can be sufficient foundation given the other side did not raise any objections that the photo in fact depicted the tire marks outside the crime scene. 

It's called disclosure, you dickhead!

Today, the DOJ released an extensive report on prosecutor misconduct in the prosecution of the late-Senator Ted Stevens.  Specifically, prosecutors failed to turn over exculpatory evidence in their possession.  The BLT has extensive coverage of the issue.  It's likely that this kind of crap happens far too frequently, but never gain the publicity they do when the defendant is a high-profile politician.  So, naturally, because the misconduct affected one of their own, Congress is now ready to act.  Whatever the motivations that spurred Congress to act, I hope the bill introduced by Sen. Murkowski will gain some steam and become law. It's a sad state of affairs that discovery violations are the wild wild west in the criminal arena, but relatively well-governed in civil matters.

Of course, getting a glimpse at the prosecutor's files plays out a bit more smoothly in the case of Vinny.
Ms. Vito: You stole his files?
Vinny:  I didn't steal his files.  Listen to this.  I'm just ready to finesse him.  I'm starting to finesse him.  I got him goin'.  He offers to have his secretary copy everything for me.
Ms. Vito:  Terrific.  You're a hell of a bonder.
Vinny:  What's this?  You readin' this book? 
Ms. Vito:  Yeah.
Vinny:  Do me a favor.  Okay?  Don't read this book.  Okay?  Thank you very much.
Ms. Vito:  Alright. Don't you wanna know WHY Trotter gave you his files?
Vinny:  I told you why already.
Ms. Vito:  He has to, by law, you're entitled. It's called disclosure, you dickhead! He has to show you everything, otherwise it could be a mistrial. He has to give you a list of all his witnesses, you can talk to all his witnesses, he's not allowed any surprises.
Vinny:  [Stare]
Ms. Vito:  They didn't teach you that in law school either?
The answer to Ms. Vito's question appears to be no in the case of the AUSAs prosecuting Ted Stevens, the AUSAs prosecuting Broadcom executives in the securities backdating trial, the AUSAs prosecuting Lindsey Manufacturing and its executives for violation of the FCPA, just to name a few. 


Thanks to whichever student group (Federalist Society?) left this tasty bonanza in the student center kitchen. Baked potatoes!

Wednesday, March 14, 2012


Because law school is really just high school with (mostly) legal drinking, BJESL is asking for nominations for its Annual 3L Superlatives. Only 3Ls are able to nominate,  but all JDs are able to vote. The categories include:
  • Funniest (Female / Male)
  • Best Body (Female / Male)
  • Best Looking (Female / Male)
  • Best Dressed (Female / Male)
  • Biggest Flirt (Female / Male)
  • Best Personality (Female / Male)
  • Biggest Gossip (Female / Male)
  • Biggest Gunner (Female / Male)
  • Favorite Couple
  • Favorite Couple That Never Was
  • Most Likely to Become a Supreme Court Justice
  • Most Likely to Become an Ambulance Chaser
  • Most Likely to Save the World
  • Most Likely to Host a Daytime Talk Show
Good fun? Bad idea? Other comments? Have at it.

Tuesday, March 13, 2012

You Want Rankings? We'll Give You Rankings

 Hey everyone! Rankings!  We know you love them and here at N&B we are all about the things that you love.

Top Party Place: Kip's
Top Trial Team Organization: BOA (They are knocking everyone's sox off)
Top Party Dean: Dean Edley - He knows you were nervous when Boalt slipped last year.  He took care of business.
Top Whiners:  The Big H.  Number 3?  That's not why your father paid for prep school.
Top Way to Complain: Barrister's was sweet, shut up already.
Top Law School: Boalt Hall, 2012.  Screw the official numbers.  We know we fucking rock.

So, that's the wrap up.

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Thursday, March 08, 2012

Let’s Play the Blame Game: Barristers is Sold Out Edition

The talk of the town is that Barristers Ball sold out yesterday and people (particularly 3Ls) are not.happy.about.it. So let’s do what soon-to-be lawyers do best: find someone to blame and hold accountable.

I’ve heard a lot of people griping about the organizers of the event - BHWA and its members. I don’t place a ton of blame there. As someone who has planned one of these big events, I can tell you that it ain’t easy to find a venue in Berkeley that can accommodate more than 300 people. There simply aren’t that many spaces that can hold our abundance of students, including on campus. Combine this dearth of venue options with the fact that Boalt has been barred from the few that are big enough (I’ll get there) and you have a tough choice: go with a very large venue in Oakland or San Francisco, with the risk that a lot of students won’t make the trip (or worse, might drink and drive), or go with a venue closer to home that is more limited in capacity. BHWA chose the latter. I can’t fault them for that.

But if you’re going to choose a venue with limited space, it’s best to be transparent about that constraint. The one thing I do blame the organizers for was not being super up-front about the fact that tickets were strictly limited. This especially hurt 3Ls, since we’ve been to five of these events now (BLF auction in the fall and Barristers in the spring) and have always been able to buy tickets at the door. In fact, the emails about Barristers all advertised tickets being available at the door and I don't remember reading about a limit. Attendance at last year’s Barristers was definitely higher than 450, so organizers probably should have been more clear that space and tickets were limited.

So who else might we blame? Well ourselves, really. Boalt has been kindly asked to not return to at least three big venues (that I know of) for… shall we say… poor behavior. Fingers crossed we keep in good standing with this year’s joint.

All this said, kudos to those who planned an event popular enough to sell out, and here’s hoping that those of us with the golden tickets have a wildly good time.

Who’s hosting the alternate party for the non-ticket-holders?

Quinn Emanuel switches up OCI

Quinn Emanuel is doing OCI a little differently this year. Via Above the Law, here's John Quinn's capitalization-light e-mail:
instead of all the twenty minute interviews, many of them with students who aren’t a match for us or us for them, we’re going to come to the law schools in the spring, invite all the first year students and have a fun, freewheeling “get to know you” party with enough of our lawyers present so students can meet (and even talk for more than twenty minutes) to a real cross-section from all the offices (and not have to wear suits). then we’ll follow up with direct submission of resumes. we think it will give more students a chance to get to know us over a longer period of time, and even collect offers in their back pockets before they enter the OCI pressure cooker. of course we’ll extend the time those offers stay open so they can compare us to the other firms they meet at OCI; we’re confident that we’ll compare very well. we’re going to do a trial run this year at six schools, with parties on the following days, and look forward to meeting every first year who might be interested in any of our offices.

Yale: March 27 at 6:30 pm
Harvard: March 28 at 6:30 pm
Chicago & Northwestern: April 5 at 6:30 pm
Berkeley: April 10 at 6:30 pm
Stanford: April 11 at 6:30 pm
There is definitely something mildly insane about how OCI currently functions. Summer associates are expensive, not just in terms of salary but also opportunity cost. Not the sort of jobs you want doled out based on a series of 20 minute interviews.

But I'm not sure that replacing the interviews with a cocktail party / networking event is the way to go. For starters, parties aren't a great way of identifying the things that really matter to a firm -- e.g. your legal research and writing, your tolerance of long hours, your ability to meet deadlines, and so forth. For that matter, I'm not sure networking events are even a good way of identifying people you'd get along with. Hell is a swarm of 1Ls trying to impress upon you their deep, deep love of IP litigation. That and the awkward small talk.

Another way of interpreting this is that short of puking on a partner, what you do at the "get to know you" party has absolutely zero bearing on your chance of a callback. That is, Quinn's throwing out the screening stage altogether and working solely off transcripts and resumes. Which leads us to how good a predictor grades are of firm success ... but that's another post altogether.

Also, people forget this every year, but Quinn does litigation. And only litigation. So if you hate WOA, don't go to the Quinn party because you want a job. Go because there's free food.