Nuts & Boalts

Polly

2012-01-25T16:47:00.000-08:00

Dean H*rshen just sent out an update about Polly, who's been on medical leave for a while:

Dear students,

Some of you have been asking about Polly. After consulting with Polly and her family, Mind* and I wanted to let you know that Polly is gravely ill and unlikely to recover. She has a very aggressive form of cancer that has progressed rapidly. Many of you have asked what you can do and if you would like to drop off a card for Polly, we will be taking them to her. This is a very sad time for us and we know it may be difficult for some of you as well. If you would like to talk about this, please feel free to come by our office.

Best regards,
Dean H*rshen

For those who don't know, Polly is the friendly lady in student services who works with M*ndi and Dean H*rshen. She's the person who you talk to when you dropped off your BHSA reimbursement requests, fill out those pink forms to get card access to a journal office, or pick up facebooks (the physical ones). She also has candy in her office.

When I was on BHSA, I often had to work with Polly to schedule meetings and handle event logistics. She was kind, funny, and helpful, which is really all you can ask of someone.

I know there are people passing around cards for students to sign. If you're one of them, would you mind posting in the comments about when and where the signing is happening?

SOPA / PIPA Update

2012-01-20T11:41:00.000-08:00

Two quick follow-ups to Wednesday's online blackout:

First, in the face of tremendous opposition, both SOPA and PIPA have been put on hold. Yay Internet!

Second, the day after the online protests, the Department of Justice took down the MegaUpload file locker based on allegations of piracy and is now pursuing a criminal case, even without SOPA / PIPA. If everything in the indictment is true, things don't look good for MegaUpload.

But the DOJ's actions are extremely questionable from a due process perspective. MegaUpload was making efforts to comply with DMCA takedown notices. MegaUpload had also filed a complaint in a U.S. Federal Court against the Universal Music Group for abusing the DMCA takedown process. The allegations in the DOJ's indictment resemble the claims Viacom made in a civil action against YouTube, and in which YouTube has so far prevailed. In short, there's no good reason why the government had to pursue a criminal case and unilaterally take down the sites. These claims could have been resolved with a civil action and preliminary injunction, which would have provided for an adversarial hearing prior to shutting down the site. As it is, it gives the unfortunate impression that the DOJ is acting as a hired gun for the MPAA.

Why SOPA and PIPA Are Bad News

2012-01-18T01:59:00.000-08:00

Wikipedia, Google, and a number of other sites (including Tort Bunnies) have blacked out or partially censored themselves to protest the Stop Online Piracy Act (SOPA) in the House and the PROTECT IP Act (PIPA) in the Senate. The two bills would establish a "Great Firewall of America" to block access to foreign websites that infringe upon American intellectual property rights.

A few reasons for why the bills are bad:

First, the blocking would be overbroad. Proponents of the bills argue that the bills are narrowly targeted at infringing content. Unfortunately, infringing content is frequently "bundled" with non-infringing content. For instance, it's technically difficult to censor the parts of your Facebook news feed that violate copyright law without blocking Facebook altogether. Yet because the bills penalize Internet intermediaries who under-censor but immunize those who over-censor, even a narrowly tailored court order would likely result in the take-down of perfectly legal content.

Moreover, the U.S. government hasn't exactly shown a great deal of competence in discriminating between legal and illegal sites. For example, DHS recently seized the domain name for the Dajaz1 blog on the grounds that site was dedicated to violating copyright laws. But DHS never filed charges or initiated court forfeiture proceedings. It took over a year before DHS admitted it made a mistake and returned the domain name to its owner. That's under existing laws. Give the government an even bigger hammer, and more sites will start to look like nails.

Second, the anti-circumvention provisions would hurt human rights activists. SOPA would criminalize the distribution of technology that could be used to circumvent the Great Firewall of America. But that same technology is also used to circumvent the Great Firewall of China. From a political perspective, there's a huge difference between censoring the Wikipedia article about the Tiananmen Square protests and censoring The Pirate Bay. But from a technical perspective, there's none. In going after pirates, SOPA and PIPA would trample all over the community of developers assisting political dissidents in countries like China and Iran.

Finally, the bills would make the Internet less secure. Some of the proposed measures would mess around with the inner workings of the Internet's domain name system (DNS). One proposal would let the Attorney General redirect all requests for a pirate website to go to a special page notifying users that the website was taken down. Unfortunately, there's little technical difference between that and redirecting all requests for a banking website to a special page that steals your password. In effect, SOPA would break technology designed to protect your personal information and online identity.

So ... bad news all around. To learn more, visit americancensorship.org. And call your Senators and Representatives!

"You've got to analyze by it upward in the air . . . . Our Recognized N&B forecast: Bieber will probably be Onceling inside of weeks."

2012-01-13T02:05:00.000-08:00

Little known fact: we get lots of spam comments here at N&B. We do our best to stay on top of deleting it because generally it truly is most worthless – strange computer-generated references to internet relationships that bear no connection to anything in which anyone would be interested. Ever.

But every now and then our spam – for unknowable computer-generated reasons – strikes a chord. Every now and then, for reasons understandable only to the internets, the run-of-the mill spam at N&B manages to be just, well, perfect.

Exhibit A, from the Onceling thread:

With what can only become identified as "the newest thing, in Onceling usually takes Boalt Corridor through hurricane.

Precisely what is Onceling? It's a new move that will makes sense gratitude in order to both planking, owling and also understanding so hard in the course of finals your current bum affects and you've got to analyze by it upward in the air.

As pictured, the actual pose entails located on your knees using reading through content in front of see your face, your current biceps and triceps or perhaps hands also positioned on the outer lining till you and your rear prolonged. Be on the look out with this very hot brand-new move at your nearby bar as well as eating place. Our Recognized N&B forecast: Bieber will probably be Onceling inside of weeks.

From whence did this comment originate? Who knows?

It was posted by "英文seo", who plainly and undoubtedly is a scrupulous N&B follower and front-row disciple of esteemed Professor B's public land seminars. Beyond that we will leave it to you, dear reader, to pontificate in the comments.

Removal is for Nerds

2012-01-06T11:05:00.000-08:00

For those of you who just finished taking CivPro, maybe you were already aware of this. For everyone else, on December 7 Obama signed into law the Federal Courts Jurisdiction and Venue Clarification Act of 2011, H.R. 394, P.L. 112-63.

The Act significantly modifies the situations in which a defendant may revove cases under both federal question and diversity jurisdiction. Linked to this article is a brief summary.

In even briefer summary:

-The 30 day removal clock now runs for each defendant when they are served, which resolved a circuit split. The Ninth Circuit rule was the same as the new codified one.

-Treatment of resident aliens: The Act clarifies that resident aliens are not citizens for diversity purposes. In other words, two aliens suing each other and are domiciled in different states cannot invoke diversity jurisdiction.

-The Act clarifies that corporations are citizens of both their state of incorporation and their primary place of business.

-District Courts will no longer have discretion to decide unrelated state law claims following removal. This is a significant departure: Before this change courts had the discretion to keep a case intact even where state law claims were entirely unrelated to federal questions. Now the case will be severed unless a court has supplemental jurisdiction under section 1367.

-Now codified is the widely-accepted rule that all defendants must consent to removal, except in class actions.

There are also numerous venue changes, which I will let others explain. My personal opinion is that V*tter will have to come up with some new jokes next semester.

Class of 2011 - We Miss You! We Need You!

2011-12-19T11:47:00.000-08:00

The letter that follows comes to you from that great bar-oath-squatting, shoulder-peeking, Booth-occupying class of 2011, along with a few professor types who have signed on to the message:

Dear Class of 2011:

Recently, over a hundred of us returned to Boalt Hall to be sworn in as members of the Bar. Together, we returned to new buildings, old teachers, and lifetime friends to cross that final Rubicon of law school. We are thankful for those that have helped us make it this far, and we are proud to now be official members of this fine profession.

As one chapter of our education ends, another begins for the Class of 2015. As we uploaded our exams to ExamSoft, they packed their clothes to move to Berkeley, California. And as we swore our oaths, they were preparing for their first torts exam.

Now, more than ever, their education is in our hands. Their ability to enjoy the opportunities that we enjoyed—producing cutting-edge journals, working on death penalty cases, providing legal services to the local community, receiving Edley Grants for public interest internships—all of this depends on our generosity and support.

As you know, Sacramento has steadily withdrawn billions of dollars from California’s higher education system. The University of California at Berkeley, which the State and Cal alumni built over decades to become the pinnacle of the nation’s public higher education system, must now be sustained in large part by Cal alumni, faculty, and students. Reform will come, but in the meantime, it’s on us to preserve this invaluable experience for future generations. It’s on us, as alumni, to continue supporting the school that allowed us to become the leaders that we are and that we will be.

It’s on us to build.

Melissa Murray: Class of 2011, you are missed! Congratulations on entering this new phase of your professional (and personal!) lives! In your absence, things continue apace at Boalt. A new crop of 1Ls has arrived, new professors are settling into their offices, and the new building is bustling with activity. Amidst all these changes, I am reminded of what remains constant. Boalt continues to be a vibrant, exciting place to teach and learn. With your support, we can continue to recruit talented, energetic new students and faculty. We can expand our clinical and skills offerings, which help prepare our students for the challenges of legal practice. We can continue to support student groups and the unique extracurricular culture that Boalt has cultivated over the years. I know that these are challenging times, but I hope you will help us by supporting Boalt.

Eric Talley: To the Class of 2011 - I was thrilled to see so many of you in the CA Bar swearing-in ceremony on Dec. 2. Not only did you get a chance to see the completed new facility actually being put to daily use, but the event provided a real sense of closure for so many of you whom I was pleased to get to know while you were here. Although public education is in challenging territory, the level of excitement and activity at Boalt remains characteristically high. This is in no small part due to our students - both past and present - who continue to make this place so special. Our ongoing support for the Law School community -financial and otherwise - is an essential link in maintaining this institutional energy. Please stay engaged, stay well, and stay in touch.

--

Alumni will continue to double all our support of the Financial Aid Fund, ELQ Diversity Scholarship, and LRAP. We have never had as many resources at our disposal – financial, professional, and personal – at a time that our institution is more challenged than at any time. $50 matters – it becomes $100 because of matching alumni funds. Give your old clinic a new printer, and your journal a case of oatmeal. Give an aspiring attorney’s financial aid package a boost.

Happy & Healthy Holidays

Melissa Murray, Eric Talley, Lala Wu, Jay Purcell, and the Class of 2011.

"Onceling" Fad Takes Over Finals

2011-12-12T17:54:00.000-08:00

In what can only be described as "the next big thing," Onceling takes Boalt Hall by storm.

What is Onceling? It's a move that pays homage to both planking, owling and studying so hard during finals your ass hurts and you have to study with it up in the air.

As pictured, the pose involves sitting on your knees with reading material in front of your face, your arms or hands also placed on the surface in front of you and your posterior extended. Be on the look out for this hot new move at your nearest bar or restaurant. Our Official N&B prediction: Bieber will be Onceling within weeks.

"My Advice Is to do What Your Parents Did; Get a Job, Sir!"

2011-12-07T22:54:00.000-08:00

A while back a person asked in the comments for advice and a thread for new or starting associates. As a new associate myself I’m not sure I can provide the advice but I can provide the thread.

. . . well, without venturing so far as to call it “advice,” I do have some suggestions that have helped me greatly during my clerkship and in the two short months I have been a litigation associate:

Figure out a way to organize your email. For me, this is a system of folders and outlook rules. At the end of each day I empty my inbox and sent mail into these folders so that I start each day fresh. This also helps me review issues that came up during the day so nothing slips through the cracks. It may be different for you, but this little ritual has helped me to keep on top of things.

Figure out a way to organize your tasks and assignments. For me, this is a running “task list” document that I keep on my desktop. Its columns are: task, due date, client, and status. I also update this at the end of each day, which helps me to stay on top of things.

Figure out a way to organize your timekeeping. For me, this is combination of a downloadable stopwatch and a yellow sticky that sits next to my computer. There are about as many systems for keeping time as there are lawyers in the world so find what works for you, but whatever you do, don’t let timekeeping get away from you.

If you are doing document review online, take some time to really learn how the platform works and how to use all of its features. This is another big time saver.

Ask as many questions as occur to you, even if they feel (or are) dumb. Many of them will turn out to be not very dumb at all but that's not what matters. What matters is that you don’t know something, and you need to. So you gotta’ ask.

All of the standard rules for politeness and professionalism that you received for OCIP and for your summer gigs apply to your job as well, but if at this point you need to read this bullet to realize that you probably are doomed.

‘Fess up to your mistakes immediately. I’ve made a few and the two lessons they consistently teach me are (1) pretty much every mistake you could possibly make has been made many times before, and (2) most things can be fixed if addressed quickly by people who know how.

Write lots of stuff down. Get in the habit of being a jotter, and a saver of notes. Stick your jottings in a folder near your desk and ignore them until later when you suddenly find you urgenly need them. Which you will.

Pay attention to the differences between being a law student and being a lawyer. My experience as the former has given minimal guidance in many important aspects of the latter. In a lot of ways I feel like I am starting all over again. It seems to me that, like the first semester of law school, now is the time to give it one hundred percent.

I am sure that the comments to this thread will be far more helpful than what I have posted above. In a year my own thoughts may be totally different. But this should get things going.

Open Note/Closed Computer: The Hidden Dark Side

2011-12-06T12:21:00.001-08:00

Andrew does a great job illuminating the hidden underside of forcing students to print out their outlines.

Is the use of "find" really that big of a deal? Does the advantage go to the tabber? I have no idea.

Who Is to Blame for Siri's Abortion Incompetence?

2011-12-05T08:41:00.000-08:00

You may have heard of the recent kerfuffle surrounding the apparent reluctance of Apple's new voice recognition application, "Siri," to locate an abortion clinic. Over the last week, groups like the National Abortion and Reproductive Rights Action League and the American Civil Liberties Union have spoken out against Apple because of the broader implications of the software glitch. In the preamble to a recent online petition by the ACLU to Apple: "[I]f Siri can tell us about Viagra, it should not provide bad or no information about contraceptives or abortion care. Send a message to Apple: Fix Siri."

But what exactly is causing the problem? A friend's gChat status sums it up nicely:

"I’m standing in front of a Planned Parenthood,” the CNN reporter says, “And Siri can’t find it when I search for abortion clinic.” No, it can’t. It’s not because Apple is pro-life. It’s because Planned Parenthood doesn’t call itself an abortion clinic.

Sigh. A pretty good rule of life is to never blame on malice what can be attributed to incompetence. Just because Siri talks to you doesn't mean she is anything other than a basic search engine.

I Just Want to Tell You Both Good Luck. We're All Counting on You.

2011-11-18T16:13:00.000-08:00

Soon the results will come out. A few years ago, co-blogger Danny Z had some insightful comments as he awaited the results. This year, aside from the traditional pithy post that opens it up for commenters to vent any angst or frustration, I want to offer a list of DOs and DON'Ts.

1. Do celebrate your bar passage with friends and family. You become a licensed attorney only once.

2. Don't celebrate by posting your name followed by "Esq." on Facebook. In fact, never refer to yourself as Esq. or Esquire; it's really obnoxious. Imagine if a judge introduced himself, "Hi, I'm the Honorable John Smith." Esquire is no exception. It's an honorary title that others may use to refer to you. When people use honorary titles on themselves, they come off as pompous pricks. We have Hastings for that kind of nonsense. KIDDING!

3. Do go home early to check your results. You don't want to be at work. Trust me.

4. Don't feel like it's the end of the world if your name is not on the pass list. Always reenter your info in case you had a typo...happens more often than you might think. If it's not a typo, it's still not the end of the world.

That is all for this year. Only a couple of hours more of feeling like you're on a roller coaster that's continuously falling. Good luck.

Breaking: Cal Supremes on Prop 8

2011-11-17T11:30:00.000-08:00

The California Supreme Court has just issued its opinion on the recent certified question in Perry v. Brown, the Proposition 8 case. The short answer, so far as I can see, is that the case is headed back to the Ninth Circuit with only minimal guidance on the core inquiry: do the backer of Proposition 8 have standing to defend it?

Rather than read and contemplate the opinion, however, in true busy associate fashion I have given it a skim and will now fire off a few disorganized thoughts before turning the forum over to the comments where, no doubt, someone anonymous will do the hard work of saying something profound. Thanks for that in advance.

As you will recall, last year a panel of the United States Court of Appeals for the Ninth Circuit used the “certified question” procedure to send a portion of the case to the California Supreme Court. As Boaltie federal court nuts are no doubt aware, the procedure is designed to further our federal system of government by providing the federal courts with an avenue by which they may ask state courts to resolve “novel or complex questions of state law.” (This is also know as “judicial restraint” or “punting the question,” depending on the circles in which you run.)

In this case, the question certified was:Whether under article II, section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.
In plain English, what the Ninth Circuit really wanted to know was whether the proponents of Proposition 8 had standing to defend it from a constitutional attach in federal court. Obviously (at least to those Boaltie federal courts nuts), Article III standing presents a rather common question of federal law, and not a “novel or complex question” of state law. But by disguising the inquiry in language like “particularized interest” (see the quotation above), the Ninth Circuit hoped to find a backdoor path to the issue -- that language is designed to tip off the Ninth Circuit as to whether voter-backers of Proposition 8 have an interest under California law that also is legally cognizable under Article III of the United States Constitution.

If you wonder why a federal court needs a state court’s help with this issue (i.e.., with whether a person has been injured in a way that is cognizable under Article III), you’re asking good questions. And, according to my very hasty read of the opinion, the California Supreme Court is on our wavelength. Rather than state “yes, these voters have been injured,” the Cal Supremes have avoided that question and asserted only that the backers of Proposition 8 have chosen a procedural path that is valid under California law. That’s a distinction with a substantial difference: instead of accepting the Ninth Circuit’s invitation to answer its own standing inquiry (which was a question of federal law anyway) the California Supreme Court appears to have addressed the relevant California law and left the rest of matters as they found them. Good for them.

The next step is a return to the Ninth Circuit where, hopefully, the panel will commence to answering its own threshold question: have the backers of Proposition 8 been (1) injured, in a way that is (2) fairly tracable to the defendant's wrongful conduct and that is (3) redressable by court order?

All of the above comes with the caveat that I have not read the entire opinion. I’ll get to it later today, I hope, but in the meantime discuss away.

Faculty Strongly Condemns UC Actions Against Protestors in Letter to Birgeneau

2011-11-15T18:28:00.001-08:00

In a letter sent to Chancellor Birgeneau, an impressive list of over 60 members of the Boalt faculty have condemned the UCPD and UC Berkeley Administration actions towards the Occupy Cal protestors. The letters also calls on the administration to follow Judge Brazil's report on the 2009 police brutality incidents and implement policy changes to prevent police violence and harassment towards UC students.

It's commendable that so many individuals on the faculty have taken such a strong stance on what has been happening at Cal. Here is the entire letter reprinted (with the faculty signatures after the jump):

Dear Chancellor Birgeneau and Vice Chancellors Breslauer and LeGrande,

We, the undersigned members of the Berkeley Law faculty, write to condemn in the strongest possible terms:
the violence directed against non-violent student, staff and faculty protesters at Sproul Plaza on November 9, 2011;
the temporary detention by police of two law students near the law school on the same day; and
the Chancellor’s public and explicit defense of the police action of November 9, 2011, which made inaccurate distinctions between violent and non-violent civil disobedience and which he apparently signed without having viewed the videos of the incidents at issue.
Sproul Plaza. The First Amendment enshrines the right to assemble peaceably, to speak freely, and to petition for governmental redress of grievances. Interference with these rights, particularly in the form of violence that was visited upon protesters in Sproul Plaza last week, is inexcusable by any government entity, but is particularly troubling at a public university. While the University may enforce its rules, including citing or arresting those engaged in acts of civil disobedience (such as linking arms and refusing to disband), there is no place for instigating violence in a community dedicated to the free exchange of ideas.

Kroeber Plaza. On November 9, in separate incidents, a group of officers detained two Berkeley Law students who were attempting to return to class after participating in the peaceful demonstration at Sproul Hall. The officers detained each student near Kroeber Plaza, though there had been no protest activity at the Plaza or the law school, and the students were simply walking back to class. Ostensibly, the officers were asking for identification. However, the accounts of these incidents provided by the two students and other witnesses – law students and law school faculty and staff – describe police actions that were unwarranted and excessive.

Going Forward. The police conduct at Sproul Plaza, and the humiliating and frightening police activity at Kroeber Plaza, have caused a number of our students to question whether they can safely come and go from the law school, much less exercise their First Amendment rights at our university. In addition to the urgent need for a thorough review of these events – including holding accountable those parties responsible for any actions that violated the civil and political rights of our community members – we call on the administration to:
implement immediately the recommendations of the June 2010 Brazil Police Review Board Report;
publicly support and defend the rights of community members – and especially our students – to engage in non-violent political expression; and
take all other actions necessary to reestablish Berkeley’s reputation as a beacon of peaceable assembly and free speech.

Sincerely,

Kathryn Abrams
Herma Hill Kay Distinguished Professor of Law

Catherine Albiston
Professor of Law

Ty Alper
Assistant Clinical Professor of Law

Roxanna Altholz
Assistant Clinical Professor of Law

Michelle Wilde Anderson
Assistant Professor of Law

Lila Bailey
Clinical Teaching Fellow

Kenneth A. Bamberger
Professor of Law

Ed Barnes
Lecturer

Robert C. Berring, Jr.
Walter Perry Johnson Professor of Law

Martha Brown
Director of Finance and Administration, East Bay Community Law Center

Stephen McG. Bundy
Professor of Law

Richard M. Buxbaum
Jackson H. Ralston Professor of International Law, Emeritus

David Caron
C. William Maxeiner Distinguished Professor of Law

Erin Clarke
Lecturer in Residence

Meir Dan-Cohen
Milo Reese Robbins Professor of Law

Brendan Darrow
Lecturer

Allison Davenport
Clinical Instructor

Holly Doremus
Professor of Law

Sharon Djemal
Lecturer

Lauren B. Edelman
Associate Dean for Jurisprudence and Social Policy

Agnes Roddy Robb
Professor of Law and Professor of Sociology

Laurel Fletcher
Clinical Professor of Law

Mary Louise Frampton
Adjunct Professor of Law
Faculty Director, Thelton E. Henderson Center for Social Justice

Mark Gergen
Professor of Law

Jennifer Granholm
Distinguished Practitioner of Law and Public Policy

Rosann Greenspan
Executive Director, Center for the Study of Law and Society

Sheila Hall
Director, Health Law Clinic, East Bay Community Law Center

Henry L. Hecht
Lecturer in Residence

Joan H. Hollinger
Lecturer in Residence

Kristin Holmquist
Lecturer in Residence

Jesse Hsieh
Staff Attorney and Clinical Lecturer,
East Bay Community Law Center

Patricia Plunkett Hurley
Lecturer in Residence

Sushil Jacob
Skadden Felow and Clinical Supervisor,
East Bay Community Law Center

Kate Jastram
Lecturer in Residence

Amy Kapczynski
Assistant Professor of Law

William Kell
Lecturer in Residence

Helene Kim
Executive Director and Lecturer in Residence
International and Executive Legal Education

Tanya Koshy
Supervising Attorney, Clean Slate Practice,
East Bay Community Law Center

Prasad Krishnamurthy
Assistant Professor of Law

Christopher L. Kutz
Professor of Law

Taeku Lee
Professor and Chair, Department of Political Science
Professor, School of Law

Gillian Lester
Associate Dean and Professor of Law

David Lieberman
Jefferson E. Peyser Professor of Law

Wendy Lilliedoll
Lecturer in Residence

Ian Haney Lopez
John H. Boalt Professor of Law

Stanley Lubman
Distinguished Lecturer in Residence (ret.)

Robert MacCoun
Professor of Law and Public Policy

Justin McCrary
Professor of Law

Peter S. Menell
Robert L. Bridges Professor of Law
Director, Berkeley Center for Law & Technology

Alice M. Miller
Lecturer in Residence

Saira Mohamed
Assistant Professor of Law

Melissa Murray
Professor of Law

Osha Neumann
Clinical Instructor, East Bay Community Law Center

Anne Joseph O’Connell
Professor of Law

Jamie O’Connell
Lecturer in Residence

David Oppenheimer
Clinical Professor of Law

Richard Perry
Lecturer in Residence

Victoria C. Plaut
Assistant Professor of Law and Social Science

Kevin Quinn
Professor of Law

Russell Robinson
Professor of Law

Bertrall Ross
Assistant Professor of Law

Andrea Roth
Assistant Professor of Law

Lindsay Sturges Saffouri
Lecturer in Residence

Sue Schechter
Field Placement Director

Jason Schultz
Assistant Clinical Professor of Law

Jeffrey Selbin
Clinical Professor of Law

Elisabeth Semel
Clinical Professor of Law

Marjorie M. Shultz
Professor of Law, Emeritus

Lucinda Sikes
Lecturer in Residence

Jonathan Simon
Adrian A. Kragen Professor of Law

Fred Smith
Assistant Professor of Law

Sarah Song
Professor of Law and Associate Professor of Political Science

Tirien Steinbach
Executive Director, East Bay Community Law Center

Talha Syed
Assistant Professor of Law

Eric Talley
Rosalinde and Arthur Gilbert Professor of Law

Linda Tam
Director, Immigration Clinic, East Bay Community Law Center

Karen Tani
Assistant Professor of Law

Yvonne Troya
Staff Attorney & Clinical Supervisor
Health Law Clinic, East Bay Community Law Center

Jennifer Urban
Assistant Clinical Professor of Law

Leti Volpp
Professor of Law

Kate Weisburd
Lecturer in Residence

Steven Weissman
Lecturer in Residence

Wilda White
Executive Director, Thelton E. Henderson Center for Social Justice

William D. Fernholz
Lecturer in Residence

Nancy K.D. Lemon

Lecturer

Neil M. Levy

Visiting Professor of Law

Stephen A. Rosenbaum
Lecturer

Eric Stover
Adjunct Professor of Law and Public Health

Eleanor Swift

Professor of Law

Calvin Morrill

Professor of Law & SociologyDirector, Center for Study of Law and Society

Joseph Lavitt

Lecturer

Jennifer Moreno

Staff Attorney, Death Penalty Clinic

Charles D. Weisselberg

Shannon C. Turner Professor of Law

Eliza Hersch

Lecturer

Robert P. Bartlett, III

Assistant Professor

Shooting at Haas?

2011-11-15T14:56:00.000-08:00

Students at Boalt: please be safe. Anyone with details, please provide.

The Most Interesting Boalt Profs in the World

2011-11-15T10:27:00.001-08:00

Piggybacking off of the popular internet meme "The Most Interesting Man in the World" (which mocks the Dos Equis Beer ads), some internet savvy Boaltie has come up with his or her own version:

The site can be found here and it encourages us all to make and submit our own.

Town Hall Liveblog Kicking Off at 1235pm Today

2011-11-14T09:51:00.001-08:00

Dean Edl*y will be having a conversation with the student body today at 1245 in Booth Auditorium.

We will be covering all of the action right here at your one and only Nuts and Boalts.

Andrew and I will both be blogging. I'll be kicking things off and Andrew will likely continue on this post.

James and Andrew here:

12:35 - Booth is cold as usual. A few people are here and are generally impressed by Booth's new seats. As discussed, Andrew will take over for me about halfway through (or if I start to talk too much). Or he might post intermittently. We're figuring out the structure as we speak. Any bets on what Edley will say? I'd expect that the crowd is pretty pro-99%, but you never know.

12:35 - Some clases have been cancelled for tomorrow due to the general strike in response to the UCPD's brutality and the general UC response to the protests.

12:36 - Some professors are asking media services to film the classes, but ironically, the media services people may strike too. So some classes might only have audio recorded.

12:38 - M*ndi is here. I'm going to ask her about the action figure idea as soon as I have the chance. Auditorium continues to fill up. No one has any illegally sized signs.

12:44 - No DE in sight. Maybe he's waiting to make a grand entrance. Booth is mostly full. Not sure how many people it holds. There are too many Castro baseball caps in here for my taste, but that's a personal problem.

12:45 - Right on time DE makes his way to the front. Several professors are also in attendance in the audience.

12:47 - And by on time, we mean fiddling with mics for a few minutes.

12:48 - DE just spent the last few moments talking to one of the Student Regents. He opens by saying he has nothing prepared, but wants to make a couple of points to get things started:

- He's watched several of the videos and he's read several things and most of what he saw was "pretty standard protest fare, but some of what I saw was shocking and unacceptable and just not my university." This gets applause.

- He can't understand nor imagine the circumstances that could have created any justification for using batons and he certainly saw nothing of that sort and couldn't even imagine what the justification might have been.

12:50 - Apparently, both DE and the Chancellor were at the same event in Shanghai. DE's not sure how familiar the Chancellor was with the circumstances.

12:51 - DE: "I have been criticized for acting as though I believe the law school is a world unto itself. and I plead guilty to that. But one of the consequences of that is that we have zero control over the police."

12:53 - Things last week didn't go as well as ordinarily because the Alameda County Sheriff's Office don't have the same set of sensibilities and relationship with our law school folks and there were some harsh words exchanged by M*ndi and KVH and the police.

12:55 - DE has several responsibilities:

- Giving us the best legal education in the world.
- This doesn't include being stopped and questioned and interrogated; feeling threatened; feeling unsafe and DE will be taking steps to communicate with the police and the Chancellor to communicate what he believes to be unacceptable police behavior towards our students at Berkeley.
- Also is responsible for being a teacher and he's going to get pedantic on our asses.

12:55 - I'm going to posit that the Chancellor didn't have any independent sources of information apart from what the police said when he sent out his infamous "linking arms" e-mail. Also, YouTube sometimes doesn't work in China, so he may not have seen the videos. [AFong]

12:55 - DE: As a tactical matter, sometimes you want to get in trouble with the police, so "be mouthy".

12:56 - DE makes it clear that cops can misbehave when you act out towards them and that this is something that DE knew growing up and we should as well. He's now asking us to be lawyers and put ourselves in the shoes of the cops and that Berkeley students, from their point of view, must be "privileged, entitled kids" and the students have an enormous amount of power over the police.

12:57 - When students file a grievance the life of that officer can be hell. DE is now saying we have more power than the cop does. I don't think this is accurate, but I think he means in a societal sense. So the chances they'll act out are high because we have more societal power and they have more on the ground power.

12:59 - There are serious problems with the training and disciplinary measures within the department. There are huge problems with the way they coordinate with outside agencies. But, what about deploying riot police at all? That seems like a UC position and not simply a UCPD position.

1:00 - Incidents of police misconduct are not as significant as the movement itself and the issues and that we move past this as quickly as possible and try to change the world instead of Cal. This is some great advice. But, the police are deployed in order to keep the status quo. Oh man, the comments are now open.

1:02 - And of course it's immediately a personal anecdote. And now the Dean is being told he was mocking. He's been told he's consistently mocking at town halls. A few people booed, basically this individual is super pissed because of all of the problems at Cal ever. Fee hikes have been brought up and now he's being called out on how the cops are taking orders from the administration.

1:03 - For those not clear, shit has just gotten real. DE apologizes for his tone as he does not mean to mock and he wants to be clear. This is the right way to deal with the criticism.

1:04 - DE: "The 99% issue in the larger scheme of things is more important than, uh (long pause), is this about fee hikes or the police misconduct?"

1:05 - Commenter: You're trying to tell us about police misconduct as something we don't know anything about. "We live next to Oakland" DE: Maybe you're more of an expert than the rest of the people here.

1:07 - DE: "I disagree with you about the fees. If you want to talk about the fee issue, we can talk about the fee issue." DE thinks this is distinct from the general education policies of the state and the federal government (and this is what, he thinks, OWS is talking about). But "he has to manage for today while thinking about tomorrow."

1:08 - We've moved on to another commenter who wants two things:

- Wants to have assurance that regardless of what kind of influence you think you have with the police that you are expressing your displeasure with what has occurred. Who do you plan to talk to? What do you plan to say?
DE response: Spoken with the Chancellor and the President of the University and he will write something in addition. I'd like to see it in a big media outlet in the Bay and on the internet. He expects that the chancellor will act. He doesn't know to what extent the administration was involved in the tactical decisions or the clear rules of engagement for dealing with the protestors. It doesn't appear that they have clear or good rules of engagement. "I do know the administration does not want a semi-permanent encampment on the campus."

1:13 Commenter thinks everyone is united against the brutality (take that anon) and she wants the Law School to take a leadership position on this issue.

1:14 - DE immediately waffles about what the school's role should be regarding this issue. Faculty are encouraged to make statements and DE needs to think about what he should do publicly.

1:15 - DE contrasts "publicly" berating the Chancellor about how to do his job with quietly advising him.

1:16 - DE does not think linking arms is violent protest and disagrees with the Chancellor and how do we respond to campus leaders making statements like this?

1:17 - Comment from the peanut gallery: "it sounds like DE wants to think about some things. wasn't this his forum for expressing what he's thought about?"

1:17 - DE talking about China now and rule of law. Concern about how vague rules chill speech. Likewise, unclear what is acceptable and unacceptable here. DE will press for clarification about the linking arms issue and where line should be drawn.

1:18 - DE clarifies - If you're engaged in civil disobedience, remember they can arrest you (that's the point).

1:19 - Everyone gets more than one question, apparently, as we continue to make sure we tell DE all of the ways he was slightly wrong or over broad in his statements. Commenter complains about how protesters are being dismissed as hippies or otherwise ignored.

1:21 - DE says those are terrific points and agrees. "Don't go crazy trying to fix this school- think about out there." DE was never that into campus. I also would have liked to see more UC students at Oscar Grant Plaza instead of at Sproul.

1:22 - DE says go to Sacramento to protest how the UC's are being treated. (You can take Amtrak)

1:23 - DE: "I am not being mocking. Okay, so saying that I'm not mocking is mocking." But he explains faculty is frustrated that people are protesting here and not in Sacramento. "You care enough to protest only when its convenient."

1:24 - DE: Berkeley is #2 in leading research university. And Berkeley has more Pell Grant recipients than the entire Ivy League. Would love to be part of conversation about how to have more of an impact, but it is "not a simple job."

Commenter: We would be more willing to take this to the administration if we didn't feel like you viewed us as the enemy.

1:26 - Basically, the students want more handholding about how to change stuff from Edley. We're going to have a planning meeting. It seems like this is a step forward as long as we don't use that whole meeting to attack straw man DE positions. DE wants the movement to be led by students.

1:27 - The mic is stuck on one side of the room. Let the left side speak!

1:28 - Now we're going to argue more about what actually happened and how the students "were prevented from walking through the campus" and DE clarifies and apologizes.
Hey BHSA, remind him about that planning meeting next time you see him.

1:29 - Everyone is getting emotional. DE's response wasn't quite right because the full facts weren't talked about by DE. DE reiterates what he said at the beginning of the talk.

1:30 - DE says I don't get the point. DE says he'll send the letter. This is the kind of thing that makes DE pissy. And he's getting pissy. And some of the crowd is yelling that they're not getting support. He's getting blamed for an inaccurate interpretation of what happened and he didn't provide all of the facts.

1:31 - Both students who were confronted were latino and there were racial slurs used by the police towards the students. DE was not aware of this and gets called out on for not speaking to the students about what happened. The students are not ok and are not traumatized. DE should have first reached out to them instead of just going ahead with what he thought he knew. DE apologizes and says the student was right.

1:32 - These students were singled out, they were alone and they were humiliated in front of their own school. DE's comments about "power" come back to bite him in the ass because they weren't clear.

1:33 - DE agrees with almost everything accept his complete culpability for sending the memo without knowing all of the facts. Now that he has more information he will send another memo. DE is getting called on the fact that he didn't email from Shanghai before talking to us. As he gets additional facts he'll send out another memo. This seems to be a "either you're with us or against us" situation in Booth.

1:35 - DE is getting called out on his "consistent attitude towards the students" for what the new commenter says is "mocking" and that the fee hike cannot be separated from the 99% or the police brutality. I feel like we're missing the point here. Instead of getting DE on board, we're insisting on attacking him.

THIS JUST IN - All students granted amnesty if they were arrested.

1:36 - Commenter says DE doesn't care about anything we say. Why even hold the meetings? DE holds them because he wants to respond when stuff happens and that students what to hear from him even when they disagree.

1:37 - DE agrees that fee hike issue and 99% issue are the same. He doesn't agree police misconduct is the same, commenter interrupts DE and clarifies.

1:38 - "Expressing your views is not identical to having political effectiveness." In this circumstance DE thinks it's preaching to the choir and it's better to preach to the infidels (in Sacramento).

1:39 - DE is trying to get more money for the students so that the law school can use the money in place of lost California state revenues so we can stop having future increases. He cannot cut back on tuition without revenue to displace it. The reason he was in Shanghai was to push executive education programs that would raise revenue.

1:40 - Having campus protests about fee increases doesn't help Edley. He wants more pressure on Sacramento.

1:40 - DE: This has been going on for several years now. And generations of students have made the same point many times. DE says he get the point. Having another meeting to tell him what last year's students told him does not improve the politics of opportunity.

Commenter asks for more transparency about what DE is up to. DE says he'll do that.

DE - "Students should do more than administrators do."

1:42 - A whole bunch of hands went up after that.

1:44 - J. Ste*n, student regent - Regent meeting has been cancelled. This is bad. This is also going to double or triple student passion at future regent meetings. Ste*n re-routing buses from regent's meeting to Sacramento. Invites DE to come with them.

Chancellor sent e-mail about granting amnesty to students arrested while this was going.

More transparency requests - want more info other than at town halls.

1:46 - Commenter doesn't understand how the administration can justify riot police and why there's no encampment being allowed. I am not sure if DE will be able to answer this question. DE is getting bashed for not seeming "upset" enough.

1:47 - Now the students have taken over, finally, and we're just going to talk to each other.

1:48 - Can we please move on from this "you haven't sounded" right BS? Wanting DE to respond at exactly the right pitch just seems counterproductive.

1:49 - Someone finally says, "Yelling at Dean won't fix the problem," and some people clap. Some people sort of clap. People are definitely afraid to clap for moderation. I know I am. DE cannot be our "avatar" which is an awesome word, but a shitty movie.

1:50 - DE: I can't be your "avatar" in attacking the Chancellor or Regents. Most effective use of Dean's position to speak in measured tones and to speak the truth. As such, anything I say can't express student's passion. Not my job. My job is to be effective.

1:51 - Student: What expectations should we have about our safety at tomorrow's strike?

DE: If I were in your shoes, I'd be very puzzled about that. I'll try to get some guidance from the police department and chancellor.

DE: Take your Cal ID with you! Police will definitely be concerned about trouble-makers from Oakland. See head bashing and murders in Oakland. Of course, this has nothing to do with Occupy, but police are concerned about non-protesting troublemakers trying to get in.

1:54 - He's being told he's mocking again. He's being accused of calling students "nutty." He says he's being unfairly attacked. He said it was nutty to attack members of the staff as uncaring. He's right. There's no reason to personally attack DE. It does nothing for the conversation and when you hear it for the 10th time it gets distracting to what's at stake here:

- stopping police brutality on campus
- continuing the 99% movement.

1:56 - Commenter: The time that the law school isn't going to take a position on this has passed. Working group with everyone working together and making public comment. DE: That's a great idea. Yes it is. This is what we need to be doing.

1:57 - Staff witness saw people get pepper sprayed and is telling us about it. She lends her support to the students standing up for public education. She commends us for our courage and now we all applaud ourselves/her/both?

1:58 - Now we're being thanked! Not sure who is thanking us, but he's glad we came. So am I.

1:59 - A lot of people came here wanting an emotional response and they didn't get it initially, but we appreciate all of what was said and that things continue to build and be positive.

1:59 - That are actually quite a few staff members floating around hear. Saw Bamb*rger and T*lley listening in.

2:00 - DE: Explaining "nutty" comment. Staff stayed after hours to chastise police and make sure there were no further incidents affecting students. So when he received communications (in Shanghai) from student groups accusing law school of not doing enough, he though it was nutty, if not worse. Distinguishes between central campus and law school employees.

2:02 - Prof. Alp*r - Re. creating committee to work through police conduct - this was done in 2009 by Wayne Br*zil. Hard to reconcile video with conclusion of that report. Asks people to look at that report and see how to build on that.

Re. faculty members not expressing support publicly - Many members of our faculty were appalled and wrote directly to the Chancellor to protest. Also, Prof S*mon wrote a blog post.

DE - There is a petition circulating among faculty about no confidence vote in Chancellor.

And we're done!

Dean Edl*y Doesn't Carry His Cal I.D., BUT YOU BETTER PUNK...

2011-11-13T20:36:00.000-08:00

...unless you want to get arrested by the UCPD.

DE just emailed the student body with his reaction to some of the recent activity on campus involving law students and UCPD. There will be a town hall meeting tomorrow at lunch (location TBD) for Boalt students to discuss. There is also talk of a student strike on Tuesday, in opposition of recent UCPD behavior and to support the greater protest movement at Cal.

I just have a few initial thoughts: 1) I appreciate getting this information; 2) I appreciate the way KVH and MM handled the situation in the heat of the moment; 3) Just because UC has a campus regulation doesn't mean that regulation is constitutional and/or good policy; 4) Just because UC has a campus regulation that sometimes makes sense doesn't mean UCPD should enforce it by senselessly harassing individual students not bothering anyone; 5) I would really like to hear DE's thoughts (or actually, maybe Professor B*mberger or Ch*per's thoughts) on the other well-documented UCPD actions in Sproul; 6) I hope DE is pressuring UCPD to leave us alone and keep their distance from the law school.

DE's Email:

This memo would be shorter, with fewer typos, if I had more time.

1: I have asked by staff colleagues to arrange for a brief “Town Hall” meeting for our community tomorrow, Monday, during the lunch hour. The location is likely to be the “west commons” outdoor space, but details will be nailed down first thing Monday morning. This will be an opportunity to share information and, I hope, constructive ideas. The issues I imagine people may want to discuss include not only UC Police Department actions with respect to our students, but also the Occupy Cal protests, the broader Occupy movement, and the relationship of these to the future of our University. I envision this as highly participatory, not performance art by me as dean.

2: I returned a few hours ago from a week of travel to Seattle and Shanghai. While abroad I received reports on the campus protests and police actions, but it was impossible for me to be fully sure of the facts. I now know more, which is what I wanted before shooting my mouth off – especially since none of our students were in any immediate crisis.

3: Although the Law School was distant from the protests on Sproul Plaza, we (my colleagues in Boalt’s administration) know of two incidents involving Law students who were walking across Kroeber Plaza, the fountain west/downhill from us. On their way to class, the students were stopped and detained by U.C. police officers stationed near the Law School. Here’s what we think happened: Police physically detained the first student and confiscated some signs he was carrying. He was released when he produced UC Berkeley student identification; the police allege that he initially refused to do so. Later, police physically detained a second student, confiscated her bullhorn, and instituted arrest proceedings-- including handcuffing her and placing her in a squad car. Unlike the first student, she did not have her ID with her. As this second student was being arrested, our Director of Student Services Mindi [] arrived on the scene. She had been phoned by students witnessing these events unfolding. [Mindi] convinced the officers that this was a Boalt student. The police then removed the handcuffs and cited the student for a misdemeanor, without formally arresting her. (This latter point is important for purposes of admission to a bar to practice law. Getting arrested, under any circumstances, is not something a law student can afford to take lightly. Please remember that it will create headaches later, including demands for elaborate explanations.)

4: All of this has raised questions about police behavior in our community. Several students have asked, "Why were police stationed at this end of campus, when the protest activity was on Sproul Plaza?" Associate Dean [KVH], who went to investigate when she learned of the first incident, spoke with one of the UCPD officers involved. He told her that they were under orders to prevent the occupation of Kroeber Plaza (the fountain area) and any surrounding buildings. The police also know that I have insisted on various occasions that protests at Boalt are generally fine, and even welcome if by members of our community. But I draw the line at disruption of classes because we should respect the right-to-learn of students and instructors. (I’m mindful of the tuition.)

Associate Dean [KVH] also asked officers why they stopped someone who was simply walking by himself, carrying signs. A UCPD officer cited to 5 CCR 100014, which limits the size of any sign, placard, banner, etc. that non-affiliate visitors to UC campuses are allowed to carry onto the campus. When they saw a person carrying large, protest signs they stopped and asked him for ID because if he were a non-affiliate then he would be told to leave campus. Officers stated that they would not have detained the student if he had shown his Cal ID. (We don’t know at what point any or all of this information was shared with the student, if ever.) Dean [KVH] explained that it is likely many students were not aware that they were required to carry and show ID while on campus. UCPD officers responded that if any students should know the law it would be Law students. (A natural mistake. They obviously have the wrong idea about what we do.) Dean [KVH] then argued that detaining our student was counterproductive, unnecessary, and would likely escalate matters.

After this discussion the police van, which held the six officers, left the area. Dean [KVH] assumed these six officers were off to the real action on Sproul Plaza, so went back into Boalt to try to find out more details about what happened.

Unfortunately, the officers returned a short time later and the second incident occurred, this time with Mindi [] playing defensive tackle. Then, after the second incident, Dean [KVH] sent an email to everyone in the law school community, warning them that there had been two confrontational situations, letting everyone know that UCPD was demanding ID, and noting that they appeared to be concentrating on people with large signs, banners, and sound amplification devices. She suggested that students avoid the West Terrace area if possible. She then stayed late into the evening and monitored Kroeber Plaza. She also instructed the Community Service Officer on duty in the South Addition, who was monitoring police radio calls in the area, to call her if there was any problems arose. On both Wednesday and Thursday Mindi [] also met repeatedly with students about the incidents.

5: To characterize the Law School administration’s response as “unsupportive” seems incorrect. Actually, with my jet lag it seems nutty. I don’t know how we could have responded better, although we are certainly open to suggestions. My colleagues did not wake me up in Shanghai, which I appreciate because they performed brilliantly without me. They always have.

6: These and other UCPD actions will be dissected at great length, I am sure. There’s a campus investigative body for that purpose. There may be disciplinary actions, there may be changes in training, or there may be nothing. In any case, I hope that our Law School community we will turn quickly to the broader issues that animate the Occupy movement, which deserve the nation’s attention and ours.

7: Finally, here is something to consider. Police in these circumstances are perfectly within the law to demand identification. That doesn’t excuse inappropriate force, or just plain non-rational actions, if either of those occurred. But as far as I can tell, if both students had been willing and able to quickly produce Cal identification, that would have been the end of it. Since the incidents last Wednesday, many students have asked whether they really have to carry their Cal ID cards and show them to UCPD on demand. Campus policy, as stated on the Cal 1 Card website, is that all students, staff and faculty MUST carry their Cal1 ID whenever they are on campus. The card itself states that "[t]his card...must be shown to Campus representatives on demand." In addition, UCB Regulation 211 states: "All persons on campus property must abide by University policies and campus regulations and must identify themselves upon request to University officials acting in the performance of their duties." The Berkeley Campus Student Code of Conduct (102.16) states that: Failure to identify oneself to, or comply with the directions of, a University official or other public official acting in the performance of his or her duties while on University Property or at official University functions; or resisting or obstructing such University or other public officials in the performance of or the attempt to perform their duties is grounds for discipline. Having said all of that, most of the time I don’t carry my Cal ID because I would lose it if I did.

CE

PS: This statement reflects what I think I know as of 7:00 p.m. Sunday evening.

Police Brutality During Occupation Protest in Sproul Today

2011-11-09T19:50:00.000-08:00

Regardless of how you feel about the Occupation, this behavior by police against unarmed, non-violent protestors is not only illegal, but is shameful.

This is how police treat students on the UC campus. Watch the video and see for yourself that the protestors were standing, with their hands raised and not advancing on the police. Observe the police strike students multiple times with their batons despite no resistance being offered.

Lady, I Got Buddies Who Died Face Down in the Muck So that You and I could Enjoy this Family Law School

2011-11-09T16:57:00.000-08:00

First things first: check out the ultra-important, context-enhancing video here.

Next, review this recent email from KVH to Boalt students:

UCPD officers have told us that they are under orders to stop anyone carrying large signs, banners, bullhorns or other amplification devices on campus property. Officers have been monitoring the area in front of the Law School that adjoins Kroeber plaza. If you are carrying signs, banners, bullhorns, or other amplification devices you will likely be stopped by UCPD and asked to produce identification. There have been some confrontational incidents in the last couple of hours that demonstrate that the officers expect immediate compliance with their request for ID. While we do not understand UCPD's position on this issue, we cannot control or direct UCPD's behavior and we are concerned for your safety and well being. It might, therefore, be wisest to avoid the west end of the building for now, if you can do so. Instead come into the law school through the EAST cafe door.

Finally, some historical context might be helpful background as you think about this issue.

Ready to crack some (figurative) heads? Good. Like KVH, I also doubt that I "understand UCPD's position on this issue." Are the campus police stopping students for the hefty offence of "carrying large signs"? On a weekday? On a campus? And are they really asking for ID? Really? If it actually is true that the UCPD can't think of a single better thing to do with its officers' time, I invite the Chief to call me. As a former resident of the greater Boalt Hall metropolitan area, I feel confident that I could provide an extensive list of better ideas.

Gamblor

2011-11-07T12:00:00.000-08:00

The jury has reached a verdict in the Conrad Murray trial, which will be read between 1 and 1:30 pm. You can watch live, here. I've tried to catch the trial in the background at work. Based on what I have seen and in particular based on the quality of the prosecution's presentation (which should be watched by all wannabe litigators as an example of near-perfect trial presentation), I would set the odds as follows:

Guilty: -1000*
Not Guilty: +900**

All others afflicted by Gamblor are welcome to lay their bets until the verdict is read.

* For those who aren't degenerate gamblers, this means that to win $100, you have to bet $1000.

** A bet of $100 wins $900.

James Lyd*'s Departure

2011-11-06T23:17:00.000-08:00

I am not in the habit of speculating as to the feelings of others; but I’m willing to bet that tonight’s email from James Lyd* meant a great deal more to some of us than it did to the rest.

Understandably, people tend not to say much about their visits with Dr. Lyd*. The walk to 362 Boalt is often, by design, an inconspicuous one. But it is important that the Boalt Community recognize the role that Dr. Lyd* plays, as both a counselor and a friend to so many.

I don’t know how quickly the administration plans to replace Dr. Lyd* - but I hope that when they do, it is with someone who is equally supportive, sincere and free of judgment.

That in mind, a quote from Mr. Rogers:

“Part of the problem with the word disabilities is that it immediately suggests an inability to see or hear or walk or do other things that many of us take for granted. But what of people who can't feel? Or talk about their feelings? Or manage their feelings in constructive ways? What of people who aren't able to form close and strong relationships? And people who cannot find fulfillment in their lives, or those who have lost hope, who live in disappointment and bitterness and find in life no joy, no love? These, it seems to me, are the real disabilities.”

Remember, Remember, the 5th of November

2011-11-05T10:29:00.000-07:00

Today is Guy Fawkes Day. And children all over the UK are taught poems demonizing Guy Fawkes' plot to blow up Parliament.

Remember, remember, the 5th of November
The Gunpowder Treason and plot ;
I know of no reason why Gunpowder Treason
Should ever be forgot
Guy Fawkes, Guy Fawkes,
'Twas his intent.
To blow up the King and the Parliament.
Three score barrels of powder below.
Poor old England to overthrow.
By God's providence he was catch'd,
With a dark lantern and burning match

But more recently, Guy Fawkes has been transformed (thanks in large part to the V for Vendetta comics/movie) to full-fledged hero status, particularly among those protesting authority, such as the Occupy movement. The LA Times had a short story on the transformation that's worth a read.

So who are the people wearing the Guy Fawkes mask? We probably all have our own opinions, but the most sensible answer comes from the movie:

Evey Hammond: Who are you?
V: Who? Who is but the form following the function of what, and what I am is a man in a mask.
Evey Hammond: Well I can see that.
V: Of course you can. I'm not questioning your powers of observation, I'm merely remarking upon the paradox of asking a masked man who he is.

Happy Halloween, N&B!!

2011-10-31T14:10:00.001-07:00

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

2011-10-26T01:57:00.001-07:00

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

2011-10-25T21:59:00.000-07:00

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

2011-10-23T20:54:00.000-07:00

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

2011-10-23T11:30:00.000-07:00

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

2011-10-20T18:13:00.001-07:00

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

2011-10-18T14:02:00.000-07:00

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

2011-10-14T20:55:00.001-07:00

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

2011-10-13T14:58:00.000-07:00

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

2011-10-11T18:17:00.000-07:00

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

Tea Party on Wall Street

2011-10-07T09:11:00.000-07:00

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.

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

2011-10-06T16:54:00.000-07:00

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

2011-10-05T17:13:00.000-07:00

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.

2011-10-05T13:05:00.000-07:00

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

2011-10-04T12:42:00.000-07:00

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.

Solutions for Making New Cafe Zeb Less Like a Sad Tomb of Silence and More Like the Linoleum-and-Mismatched-Chairs 90's Party It Used to Be

2011-09-28T13:18:00.001-07:00

In case you never had the pleasure of rocking out to Boyz II Men while eating a chicken quesadilla (R.I.P.) in the old Café Zeb, you have been sorely deprived. The new Café Zeb is architecturally stunning, but sadly quiet now that there’s no music, the floor is made of stone, and it’s the most well-lit portion of the new addition (drawing people to study there rather than the Deep Earth levels of the new library).

As several commenters on N&B have pointed out, this is clearly an unacceptable state of affairs and something must be done. But instead of kvetching about it (as we are prone to do on N&B), I propose we brainstorm some real solutions. To inspire some discussion, here are five modest ideas I put together – feel free to add your own in the comments:

(1) Tell our BHSA reps to spend $50 of the bounty they collected by overcharging us on textbooks to purchase a Boom Box for Café Zeb.* 3Ls will then be responsible for bringing their childhood 8-tracks, or maybe some burned CDs,** and will take turns playing our ‘tunes.

(2) Organize various Café Zeb flash mobs to disturb the activities of misguided students who think they can STUDY where they are really meant to EAT and SOCIALIZE. Hey 1Ls – looking for ways to earn coolness points? Organize a Café Zeb flash mob. For example: At 12:45 next Monday, have 15 people who appear to be reading in Café Zeb burst out singing “Don’t Stop Believin” while sprinkling jelly beans on every open textbook in your vicinity.

(3) Show up to Café Zeb at 10am when it is the most silent and tomb-like. Suddenly and unexpectedly make a very, very loud noise.

(4) Encourage more LLMs to sit in Cafe Zeb, as they are generally loud and unaware of their surroundings (love you though!)

(5) Appoint a Café Zeb monitor*** responsible for Boom Box maintenance, ensuring individual students don’t take up an ENTIRE BOOTH (when the signs clearly say for “Groups of 3 or More”) just so they can spread out all their textbooks while sitting on a plush seat, and making sure people clean up after themselves. That last point is unrelated to the whole silence issue, but seriously guys, I slipped on an avocado slice the other day and it really hurt.

*If you think this is ridiculous and that we should instead buy speakers and an iPod dock, you clearly don’t understand what Café Zeb is meant to be. I don’t want to hear your new Lil’ Wayne downloads from iTunes when I could be listening to Mariah Carey circa 1995.

**Acceptable genres of music include, but are not limited to: Boy bands, slow jamz, 90’s music, Motown hits, R Kelly, and elevator music.

***Who shall wear a golden sash.

Racist Bake Sale Still On for Tomorrow, Not Yet Clear What the Consequences Will Be

2011-09-26T18:36:00.000-07:00

**Update: If you didn't have a chance to visit Sproul Plaza today, these are pretty good recaps by the Huffington Post (includes photos) and SF Gate about the bake sale and related protests. Highlights include a surprise appearance by Ward Connerly, who helped BCR sell racist cupcakes, and a number of bake sale tables that sold "opposition pastries" including a Harry Potter-themed table offering "enchanted Costco muffins" priced differently for pure bloods and Muggles.**

This afternoon, UC Berkeley students received an open letter from Chancellor Birgeneau condemning the recent baked-goods controversy that has inflamed the campus community and garnered national media attention. At the center of the proverbial food fight are the Berkeley College Republicans, who last week unanimously approved a pay-by-race bake sale and began advertising the sale on campus with posters that read:

Bake Sale Prices:

White $2.00
Asian $1.50
Latino $1.00
Black $0.75
Native American $0.25
$0.25 Off for All Women

The tactic, which BCR has admitted is intentionally racist and discriminatory, is meant to draw attention to pending legislation (SB 185) that would allow CA universities to consider race, gender, ethnicity and national origin during the admissions process. Defending the bake sale, BCR President Shawn Lewis wrote, "It is no more racist than giving an individual an advantage in college admissions based solely on their race (or) gender."

Last night, in response to widespread campus disapproval of the tactic, the ASUC Senate--which has previously endorsed SB 185--convened an emergency meeting during which they passed a resolution that, in part, "condemns the use of discrimination whether it is in satire or in seriousness by any student group." In addition, ASUC President Vishalli Loomba has commented that the tactic is offensive and harmful to campus inclusivity. At this point, it is unclear what the consequences will be under the new resolution if BCR conducts the bake sale as planned.

Endorsing the ASUC's resolution, Chancellor Birgeneau's letter also criticized the sale as contrary to UC Berkeley's Principles of Community [queue Full House music]:

The Principles of Community are not about political positions. They require a consciousness of the potential effect of words or deeds on others: a positive intent not to hurt, offend, or denigrate others while expressing a reasoned position. Regardless what policies or practices one advocates, careful consideration is needed on how to express those opinions. The issue is not whether one thinks an action is satirical or inoffensive, the issue is whether community members will be intentionally - or unintentionally - hurt or demeaned by that action. The same applies to the way we interact with each other, whether academically, professionally, or socially.

According to the most recent news reports, the bake sale is still scheduled to take place tomorrow--and I'm curious to hear what we law students think about it. BCR has admitted the sale is intentionally racist and discriminatory, albeit in a satirical manner. Has UC reacted appropriately? What is preventing something like this from happening again when, arguably, BCR has gotten exactly what they wanted with campus- and nation-wide attention for their anti-affirmative action stance? Does anyone else find it ridiculous that muffins have somehow gotten mixed up with race politics? Discuss.

Netflix Apology Shameless Self-Promotion

2011-09-21T13:10:00.001-07:00

This is unrelated to the law and law school, but our blog covers tech issues sometimes, right? Anyway, I made a video encapsulating my reaction to the Netflix controversy that has caught on a bit. (Look, I'm linked on Techdirt!) It seemed like a shame not to share it with the blog I actually used to write for. (My narcissism can eat and eat, but it will never be full.)

CAMPUS GUM CHEWERS DECORATE FURNITURE IN NEW BOALT HALL

2011-09-19T07:53:00.000-07:00

From the San Francisco Call

January 31, 1914

Law Library Pasted Up With Stuff and Faculty Action to Check Practice is Planned

Chewing gum stuck under table covers and in the telephone booths in the new Boalt hall of law on the campus of the University of California has attracted the attention of the authorities, and a ruling will probably be issued to stop the habit of pasting up the furniture with the stuff.

Some of the students, including a number of the coeds who use the law library, have lately modeled their discarded gum into fantastic shapes which give prominence to the growing custom of gum chewing on the campus. All the furniture in the building is new and of white finish, on which the gum shows up in startling fashion.

Then And Now

2011-09-13T14:29:00.000-07:00

I wanted to piggy-back on James' post below regarding the New Addition by linking to this Flickr slideshow. For alumni who have not seen the school since the addition, the transition is breathtaking (in a good way). To put in perspective, here is a picture of what Boalt looked like before, though don't be fooled by the sight of those trees...they stank!

Once Upon a Clerkship Dreary

2011-09-12T17:08:00.001-07:00

By popular request, here is a clerkship thread. So for those of you who rejoice in the hope of one day perusing mouldy tomes by buttery candlelight (or mayhaps oil lamp, if you should be so lucky)--getting drunk on that heady vintage named Law, kept company by the sweet, sweet chill of granite walls and the fine music of moth wings against velvet curtains, this is the place to share your tales: Of success, frustration, octogenarian antics, dreams for the future--what have you.

Someone is attempting to Ebay the free library mug all 1Ls get

2011-09-09T16:53:00.000-07:00

Click here to see the auction

Maybe this free publicity will get the enterprising seller past the initial bid of one cent. I wouldn't count on it, though, as I'm pretty sure these things are free. For all of you out there collecting Berkeley Law memorabilia, here's your big chance.

That being said, if there were a plate collection featuring portraits of Dean *dley in a jean jacket or sweater I would buy it in a second.

OAKLAND MILLIONAIRE CHARGES LAW STUDENT FORGED NAME TO POWER OF ATTORNEY

2011-09-06T08:42:00.000-07:00

From the Los Angeles Times
May 30, 1913

On the verge of a nervous breakdown as the result of his arrest, Robert L. Bradford, a graduate of the University of California with the class of 1913, is held at the city prison pending the decision of H. H. Hart, Oakland multi-millionaire as to whether there will be a prosecution.

Bradford is accused of forging Hart’s name to a power of attorney.

At the city prison Bradford, a clean-cut, keen-looking young man, declined to discuss his predicament.

"I am ruined," was the burden of his statement.

He graduated from the College of Jurisprudence at the commencement exercises in May, at the Berkeley University, and is said to have shown unusual brilliancy in his studies.
　

The New Addition is Awesome

2011-08-31T13:52:00.000-07:00

I've been meaning to congratulate all of us (especially the administration that made it happen) for the new, improved Boalt. The new Zeb rocks, the courtyards rock, the ease of getting from one side of the building to the other rocks. The library reading rooms are awesome (fun thing to try: put your face right against the class above any of your friends and watch them freak out). I would take pictures, but I'm too lazy.

Pretty much everything is awesome, except one thing: No Zeb 90s slow jams. Where is my Mariah? My TLC? My Counting Crows?

The lack of music is leading silly 1Ls into thinking it's a quiet study zone. It's not. It's Zeb, the place for meetings, friends and those sweet 90s jams some of you are too young to remember.

OCIPin' on a 40

2011-08-30T08:45:00.000-07:00

Update, 8-16-11: See Rule Number 2.
_____________________________________________________

It's time for the annual OCIP thread here on N&B. For those of you who are unfamiliar, here is a short explanation (you should also probably consult last year's thread and follow the links in that post to educate yourself). In essence, this thread is to inform those who want to be informed of such things when firms send out offers and/or rejections following OCIP. OCIP is a stressful process and it brings out the best and often the worst in people. If you feel OCIP is a notch below the library during exam times then you might want to skip this thread.

No, you're still curious and want to participate? OK, here are the rules:

1. We will take comments posted below regarding offers/rejections and incorporate them into the body of this post. The process is tedious and generally not fun. There's a lot you can do to expedite things along.

2. PLEASE READ THE BODY OF THIS POST AND THE LAST FEW COMMENTS TO SEE IF ANYONE HAS POSTED THE SAME OFFER/REJECTION THAT YOU ARE ABOUT TO POST.

3. SEE NUMBER 2.

4. Post the offers/rejections in the following format:

Firm name, Office, +/- to indicate offer/rejection respectively. For example:

Orrick, SF +.

The location abbreviations are as follows:

Atl -- Atlanta; Bos -- Boston; Chi -- Chicago; Dal -- Dallas; DC -- DC; EBay -- East Bay locations (Oakland, Walnut Creek, etc.); LA -- LA area offices (includes Century City); Mia = Miami and South Florida; Minn -- Minnesota; NY -- New York/New Jersey; OC -- Orange County area offices; Por -- Portland; Sac -- Sacramento; SD -- San Diego; SF -- San Francisco; SV -- Silicon Valley offices (includes Palo Alto, San Jose, Menlo Park, and all other South Bay locations).

5. This is now the seventh OCIP that N&B has had this thread. Without failure, each previous thread contained comments that were ummm worthy of staying up. So, while we will delete comments that are only posting +/-, more substantive comments will stay up. At the same time, it's probably wise not to identify yourself to your prospective employers. So don't write anything silly that's going to reveal who you are.

Best of luck to all of you, but for the love all that is holy and good, please follow Rules 2 and 3.

***
Allen Matkins, SF +
Arent Fox, NY -
Arnold & Porter, DC -, LA -, SF -
Baker Botts, SV +
Baker Hostetler, DC -
Baker & McKenzie, SF -
Bingham, LA +, SF +/-
Boies Schiller, DC +, NY +, OAK +
Brownstein, DEN +/-
Bryan Cave, LA +, SF +
Cadwalader, DC +
Cahill Gordon, NY +
Cleary Gottlieb, DC +/-, NY +/-
Cooley, NY +, SF +/-, SV +
Covington Burling, DC -, SF +/-
Cravath, NY +/-
Crowell & Moring, DC -, OC +, SF +/-
Davis Polk, NY +/-, SV +/-
Debevoise, NY +/-
Dechert, NY -, SF +, SV +
Dewey & LeBoeuf, NY +, SF +/-
DLA Piper, SD +, SF +, SV +
Drinker Biddle, SF +
Farella Braun, SF, +/-
Fenwick & West, SV +
Foley, DC+/-, SF +
Gibson Dunn, DC -, LA +/-, NY +/-, SF -, SV +
Goodwin Procter, BOS +/-, LA +, SF +/-, SV +
Hogan Lovells, DC +, NY -, SF +
Howard Rice, SF +/-
Irell, LA +/-, OC +/-
Jeffer Mangels, LA +
Jenner & Block, CHI -, LA +
Jones Day, DC +, NY +/-, SF +/-, SV +/-
King & Spalding, SF -
Kirkland, SF +
K&L Gates, SF +, Sea +
Keker, SF -
Knobbe, LA -
Kramer Levin, NY +
Latham Watkins, DC -, LA +, NY +, SF +/-, SV +/-
Lieff Cabraser SF -
Lowenstein Sandler, SV -
Manatt Phelps, LA +
Mayer Brown, CHI -, SV +/-
McDermott, LA +, SV +/-
Morgan Lewis, SF +, SV +
Morrison & Foerster, LA +/-, SD +/-, SF +/-, SV +
Munger LA, +/-
Nixon Peabody, SF +
Norton Rose, LON +
O'Melveny, DC +/-, LA +/-, OC +, SF +/-, SHA +/-, SV +/-
Orrick, LA +, SF+/-, SV +
Paul Hastings, DC +, LA +/-, SF +/-, SD -, SV +
Paul Weiss, NY +/-
Perkins Coie, SF -
Pillsbury, SF +
Proskauer Rose, LA +
Quinn, SF +/-, SV +
Reed Smith, LA +, SF +/-
Ropes & Gray, NY +
Rutan & Tucker, OC-
Sedgwick, SF +
Severson & Werson, SF +
Shartsis Friese, SF +/-
Shearman & Sterling, SF +
Sheppard Mullin, LA +, OC +/-, SF +/-
Sidley Austin, DC +/-, LA +, SF +/-, SV +/-
Simpson Thacher, LA +, NY +/-
Skadden, LA +, NY +, SV +
Stoel Rives, SEA -
Stradling Yocca, OC-
Sullivan & Cromwell, LA +, NY +
Troutman Sanders, OC +
Vinson & Elkins, HOU, +
Wachtell, NY +/-
Warren & Gunn, SF +
Weil, NY +/-, SV +/-
White & Case, LA +/-, SV +/-
Wilmer, DC +/-, LA +, NY -, SV +/-
Wilson Sonsini, SV +/-
Winston & Strawn, SF -

Mr. Manners is Back

2011-08-29T11:21:00.000-07:00

Oh Boalt, every year we start anew and every year I have to be grumpy about people making messes and not cleaning them up.

I am not sure which one of you decided it was cool to lay a Mario Kart style trap during your Con Law class (or whatever class was in 100 before that), but come on, throwing a banana peel on the floor? Really?

Bar Review Review

2011-08-28T17:25:00.000-07:00

Howdy folks,

Despite being "extreme" (which I take to mean extremely awesome), I think there's a need to address last week's Bar Review at Jupiter.

Here are the general problems with Jupiter:

1. No hard alcohol

2. Poor service

3. Relatively high prices for the area

And the major one:

Not enough space for everyone who comes out to Bar Review. They were turning people away at around 10pm. I continue to have no idea who makes these decisions, but I'd hate to see the Kips revolution happen so early in the year. How about we save Jupiter for the crappy end of semester bar reviews that mostly no one goes to and the awesome bars for now? Good thing we moved things to the Downlow.

Looking forward to seeing good clean fun dissected in the comments.

Love,

James

Advice for 1Ls

2011-08-25T19:22:00.000-07:00

After thinking long and hard about what advice to give the 1Ls, I decided I'd just show them a typical Monday night if you're doing Boalt the right way.

Don't stress. Have fun. Come dance.

(Special thanks to Haas guest stars)

Rare Law Volume Stolen From U.C. Student's Locker

2011-08-22T08:28:00.000-07:00

From the Oakland Tribune

December 14, 1923

A rare law book printed 250 years ago was stolen from the University of California law school yesterday and the police are searching for the “book-collector” thief. The ancient volume was taken from the locker of one of the students and professors of the school declare that it cannot be replaced.

“The thief evidently knew that the book was of great value,” Walter Gleason, president of the student association said today. “Nothing else was taken from the locker and the book was in such bad repair that an ordinary thief would overlook it.”

According to Professor Max Radin the book was printed in 1686 and was being used by a student in preparing to write a thesis for a doctor’s degree. He values the book at $200, but does not believe that a duplicate copy can be secured.

A number of other articles were taken from the law school yesterday, according to Gleason. Edward Estill, a second-year student, reported that his locker had been opened and $10 in currency taken from his coat. Another student had $15 taken from his locker and a number of books were stolen.

LEGAL STUDENTS TRAP THIEF, THEN HAVE HIM FREED

From the Bulletin

March 19, 1924

After applying legal logic to solving a mystery and catching a thief, law students of the University of California today turned tender-hearted, habeas corpused the victim out of jail, and sent him home on probation.

The thief, according to Berkeley police officials, should have known better than to have selected the overcoats of budding young attorneys for criminal activities. After a number of thefts, the embryo barristers laid down “Greenleaf on Evidence,” and other standard works, and applied their acumen to a trap.

The sum of $40 was placed in a coat and the coat put under watch. A former law student was seen to take the money. The legal staff turned him over to the police.

Later they asked that he be reprimanded and sent home on probation, which was done.

Shelanski Moves On (Again)

2011-08-18T09:16:00.001-07:00

According to Dealbook and the WSJ Law Blog, former Boalt prof and sometime antitrust regulator Howard Shelanski is going over to Davis Polk. His class at Boalt was a real pleasure -- I, for one, wish him all the best in his new gig.

11th Circuit Declares Individual Mandate Unconstitutional

2011-08-12T11:13:00.000-07:00

Here we go again. A divided panel of the 11th Circuit has concluded that the health care reform's individual mandate is unconstitutional. This creates a circuit split with the Sixth Circuit, which also ruled via a split panel.

The Eleventh's Circuit's servers are clogged up now, but I'm looking forward to reading this opinion. I just hope it's better than the Sixth Circuit's dissent, which I thought demonstrated poor legal reasoning. (You know you're in trouble when most of your citations are to SCOTUS dissents.) I'm just sick of reading substantive due process arguments masquerading as commerce power challenges.

Two additional notes. 1. The existence of a circuit split will make it more likely that SCOTUS will decide this case before the 2012 election. 2. I'm glad that, as with the other circuit decision, there's no partisan divide among the panel votes; I think the perception that judges were voting based on whether they were appointed by Republicans or Democrats was very bad for the judiciary.

UPDATE: Oops, I spoke too soon about hoping to avoid disguised due process arguments.

Properly formulated, we perceive the question before us to be whether the federal government can issue a mandate that Americans purchase and maintain health insurance from a private company for the entirety of their lives. . . . In answering whether the federal government may exercise this asserted power to issue a mandate for Americans to purchase health insurance from privatecompanies, we next examine a number of issues: (1) the unprecedented nature of the individual mandate; (2) whether Congress’s exercise of its commerce authorityaffords sufficient and meaningful limiting principles; and (3) the far-reachingimplications for our federalist structure.

A BURNING ISSUE

2011-08-08T08:21:00.000-07:00

From the Los Angeles Times
September 21, 1894

The temperance question has become an issue in the university town of Palo Alto. By acts of the State Legislature the sale of liquor has been prohibited within a certain distance of the grounds of the University of California at Berkeley and, although the law has been evaded to some extent by crafty venders of alcoholic beverages, yet the effect of the measure has been felt to a certain degree.

When Palo Alto was selected for the location of the Stanford University it was expressly the wish of the founder of the institution that no liquor should be sold within its limits and to that effect a prohibitory clause is inserted in every conveyance of Palo Alto real estate, which provides that the vendee, his heirs and assigns, shall not at any time manufacture or sell to be used as a beverage, any intoxicating liquor or to permit the same to be done on the premises conveyed. It is also provided that if the vendee, his heirs or assigns, violate the above provision and condition, the indenture shall be void and the premises shall revert to and become the absolute property of the vendor, who may enter and take possession and remove the vendee or any person holding under him.

The population was surprised when the discovery was made several days ago that J. Spencer and C. W. Condon, two of the town dealers, have been carrying on an illicit liquor trade in a small way. Both men have been placed under bonds to appear before the Justice of the Peace and answer to charges of selling liquor. The interesting question of the constitutionality of the prohibitory clause of the conveyance of the real estate will also arise from this affair.

Timothy Hopkins, the previous owner of the land upon which the liquor was sold, will bring suit in the Superior Court of Santa Clara county against the landlords of Condon and Spencer in order to test the legality of the clause. It is stated upon good authority that the suit will be simply a test case of the question.

Not-Your-Typical Summer Movie Recommendation

2011-08-05T21:47:00.000-07:00

This is a shameless plug for a brilliant film that (in my opinion) every law student and legal professional should try to see while it's in theaters this week: Crime After Crime documents the ordeal of Debbie Peagler, a woman incarcerated for decades because of her role in the death of her abusive boyfriend, and the 7-year legal struggle of two Bay Area attorneys who represented Debbie pro bono in her fight to be set free.

Broadly, the film focuses on the issue of intimate partner battering, and how it contributes to the ever-increasing rate of female incarceration in the United States today. Particular to Debbie's story, the film exposes the appalling misdeeds of the Los Angeles District Attorney's office in overcharging and extracting a plea from Ms. Peagler - knowing all along that she was a victim of domestic violence and that the one witness against her had committed perjury - then two decades later, resisting her habeas petition under California's Penal Code §1473.5 (passed in 2002), which permits battered women convicted of a felony to file a writ of habeas corpus with evidence demonstrating the effects of battering in their case.

In addition to taking place in the Bay Area, the film is closely tied to the Boalt community - incomplete versions have been screened in various classes over the last couple of years, and the film includes a short commentary by Boalt Professor Nancy Lemon.

The movie was recently picked up by the Oprah Winfrey Network to air sometime in November. In the meantime, Crime After Crime is showing in San Francisco, Berkeley, and San Rafael today through Thursday - and many of the showings include introductions / Q&A with Professor Lemon or the attorneys who worked on the case. As someone completely unfamiliar with this subject matter before tonight, I was incredibly moved by the film and highly recommend it.

Bye-Bye, Trippe-A

2011-08-05T17:46:00.000-07:00

This post has a preface. The preface goes like this: remember the ratings agencies? Those august bodies that completely missed the sub-prime mess even though they proudly/smugly presume to ordain the economic wellbeing of each important player in our economy? The bodies whose views have proven so thoroughly establishmentarian that (and this may be only my opinion) we should no longer regard their pronouncements as anything more than the consensus view? Well, the consensus as pronounced via ratings agency have news for the United States today, and it ain't good.

Apparently the Treasury and Standard & Poor's have been arguing back and forth behind the scenes all afternoon about whether there was an "arithmetic" issue with the rating agency's recent calculations pertaining to the United States' sovereign debt. (The Treasury was concerned that S&P had overestimated the national deficit by about $2 trillion--yes, that really is two million millions of dollars--but S&P later "conceded the error.") By now you can guess the reason the Treasury was concerned with arithmetic: S&P just downgraded our credit rating. Why? Well, basically because it concluded that Congress was too inept to confront our nation's problems. (Like I said: "consensus view.")

For those who don't follow such things, what that means is that United States debt no longer deserves to be considered one of the safest investments in the world. Money is now no safer with us than it is with, say, Belgium or New Zealand. That may not seem so bad, but consider the effect that a sudden 0.5 percent interest hike could have all those whiz-bang Wall Street algorithms that essentially run vast swaths of our still-vulnerable economy . . . suffice it to say, this has the potential to be, um, sort of a big deal. Not like, "oh my, does this mean more Ponzi schemers going to be shaken from the woodwork?" kind of big deal but, more like "holy hell the 'great recession' of 2008-2010 may have been on the beginning!" kind of big deal. I don't think I'm exaggerating here.

For those who DO follow such things, here are various questions that come to my mind:

Is it too early to kiss Obama's second term goodbye?
Is it uncouth to ask if I can get my double-dip with extra toppings?
Will a potential QE3, or 4, or 12, inflate the dollar sufficiently to make my student loans bearable?
Given that Europe is in the middle of a full-blown credit crisis, we can't pay our bills, and China (to whom everyone is looking to pull the entire world out of the recession) is currently manufacturing at just above contraction levels . . . why is it that the gold nuts on late-night TV and the gun nuts in Kalispell, Montana, seem to be the only people freaked the hell out right now?
Finally, and most importantly, will today's downgrade irritate Congress enough that it finally moves toward meaningful reform the entire banking-rating complex?

But There Is A Silver Lining

2011-08-02T16:42:00.000-07:00

I don't mean to bump Dan's post below, but I'd be remiss if I didn't continue to point to the silver lining of a) having a Boalt degree and b) having a Democrat in the White House. Earlier today, President Obama nominated Miranda Du, a Boaltie from Nevada, to the federal bench. I hear very, very good things about Ms. Du from those in the know; and considering Harry Reid probably pushed for the nomination, I think she'll have a smooth confirmation. And she's not the only Boaltie with a Nevada connection to be nominated as an Article III judge. Last week, the President nominated Judge Wallach of International Trade Court to the Federal Circuit. So by my count at least, in the past two weeks, the President has nominated three Boalties to the federal bench, on top of Professor Liu's appointment to the Supreme Court of California. Three cheers for them all.

DON'T PANIC

2011-08-02T16:09:00.000-07:00

The last-minute debt deal not only displayed the impotence of the modern Democratic party, but also screwed over a lot of future grad students. There is an excellent post about it at ATL. Read it.

I don't have a lot to add, except I think it is time for Boalt's administration to reassess their reliance on the Federal IBR/forgiveness program as the central pillar of LRAP. We have repeatedly been reassured that IBR is safe. Now it looks like anything is on the table.

Enjoy your tea.

Liu to California Supreme Court?

2011-07-26T09:18:00.000-07:00

Governor Brown has nominated Goodwin Liu to the California Supreme Court. A worthy replacement for Justice Moreno, I would say.

STUDENTS OF LAW MAY ESCAPE ORDEAL

2011-07-25T08:33:00.000-07:00

From the Ontario (Calif.) Record

February 16, 1911

Local attorneys are much interested in a bill offered in the legislature by Senator Caminetti, which provides that graduates of the San Francisco Law School, as well as the law department of the University of California and Stanford, shall be entitled to practice before the State courts without examination. The bill also provides that the chief justice of the State Supreme Court may order an examination if he sees fit.

Many lawyers are opposed to the bill for the reason that it is claimed law students even in practical law colleges did not get the inner spirit of the law as those who realize they must buckle down to the acquiring of legal knowledge in a way that will help them to pass a severe examination of the Appellate Court, or other examination.

Professor Woodward of Stanford, who has been advocating the Bar Association’s bill for a State board of examiners to supervise the admission of attorneys to practice, thinks that no law school graduate should have a license without examination.

Ursus Major

My ExamSoft Nightmare . . . with Happy Ending

2011-07-24T12:05:00.000-07:00

I almost forgot to post this: I have something important to say about taking the bar with a laptop. During last year’s California exam my laptop crashed in the middle of a Performance Test, and I ended up having to write the remainder of the exam by hand. This post is about how to avoid my experience.

The trouble hit after I had spent about 15-20 minutes reading the PT file, taking notes, and outlining my answer by hand, during which time my computer’s power-save function set in and dimmed the screen. When I turned to begin typing, the computer not wake back up. I tried key taps ("tap . . tap-tap . . .TAP-TAP . . . TAPAKAACCKALAK-TAPTAPTAP!!!"). I tried mouse movements ("scribble . . . scribble-scribble-click-click"). I tried unplugging and re-plugging my power cord . . . nothing. Nada. Zippo. Zilch.

So, after a bit of fretting, I tried rebooting the machine. Nope. This freaked out the ExamSoft program -- it booted straight into ExamSoft and promptly reported an “error” message that left me unable to (1) enter ExamSoft or (2) boot my computer back to Windows. There I was, stuck in blue-screen error land, while everyone else was ferociously typing away.

I raised my hand and looked for my elderly proctor, but got no response. I stood, surveyed the room, and spotted her in a chair near the far end of my row. Fast asleep. I walked over, woke her, and asked for paper to hand-write my exam. After what felt like an eternity she returned, I set my computer aside, and returned to the PT answer I had outlined by hand. Shaken and more than a little stressed I looked down at the page and discovered that nothing -- and I mean NOTHING -- I had scrawled less than a half hour ago made any sense whatsoever. I recognized my handwriting and I knew what the individual words meant, but I couldn’t fathom how they might be related to one and other or point toward a logical legal exposition. (Comparison here to an unpleasant, public acid trip would not be inapt.) Not only could I not remember the structure of my answer, but I could not even remember the basic issue in the fact pattern. It was all the way back to square one for me.

I set to work, re-read the file, wrote my answer by hand, submitted that sucker in a giant paper envelope, and thought the worst was behind me.

Nope.

Remember how I couldn’t reboot my compute or enter ExamSoft? Well, I also had not yet uploaded my answers from the previous day, and I certainly couldn’t upload them now. Half the bar exam was sitting on my computer, with no apparent way to get it to the graders. When the exam ended I entered phase two of my personal little nightmare: an evening trying to multitask (1) being on hold with ExamSoft (the week of the bar exam is an, uh, “busy time” for the two freaking people they have doing customer service) and (2) celebrating with my classmates. Ultimately, with the midnight deadline fast approaching, I found myself:

Sitting on the sidewalk above the 19th Street Oakland BART station,
Drunk,
Poaching internet from some unsecured wireless network,
Listening to a very tired ExamSoft representative recite strange combinatons of letters and numbers for me to type into a command line I had never seen on my computer, all in an effort to
Complete the upload of my precious, precious bar exam answers.

Eventually the answers did upload, I got onto BART, and -- months later -- learned that I passed the bar. So, "all’s well that ends well," right? Well, yes, but it's also "not the destination but the journey that matters."

Here is how to NOT share my journey. ExamSoft, which operates by locking out access to all other files on the computer, also locked out access to whatever file was needed for my computer’s screen to “wake” from power-save mode. I later heard that similar issues can arise with automatic antivirus and updates settings. It turns out that one simple little setting change before the bar exam -- i.e., had I told my computer never to sleep or dim while plugged in -- would have spared me all that time, misery, and anxiety.

And that, Dear Reader, is my advice to you: disable your antivirus software’s automatic updates function and double-check your power-save settings. It will be 20 seconds well spent.

Oh, and one other thing: if you DO end up writing by hand, it’s actually not all that bad . . . really. I promise.

A[nother] Final Last Bar Post

2011-07-22T22:07:00.001-07:00

I have to admit to a particular degree of sympathy to this year's bar takers: after sitting for the California bar last summer, my plans have changed and I will now take another bar exam, in another state, this summer. I've suddenly become a huge supporter of reciprocity, although I suppose my motivation -- like my anger over the drinking age when I was twenty years old -- will quickly fade.

My new state (Washington) is also a community property state, which means that for the second July in a row I am one hundred percent up to speed on the legal implications of income acquired during marriage. Certainly I am at least as up to speed as the lawyers in Silverman v. Silverman, a very recent divorce case in which a ridiculously wealthy private equity executive made the following argument as to why all that money -- which he acquired during marriage -- should be deemed separate property:

A state judge has barred an "enormously successful" private equity firm executive from presenting in a pending divorce expert psychological evidence he claims will show that "his unique personality traits," or "personal capital," enabled him to amass $450 million in business assets during a marriage of more than 30 years.
. . .

"In purporting to prove that the success of the business is solely attributable to his innate genius, the expert opinion evidence offered by the Husband offers no assistance to the finder of fact in fashioning an equitable distribution of the estate based on the contributions of each party to the marital partnership," Justice Drager wrote.

I don't know what gives me more pleasure: the bench-slap handed to the lawyers who tried to make this argument with a straight face, or the $225 million loss their client is going to take after giving them the thumbs up. The one question I want answered it this: why did he THINK she married him?

[Proof of Husband's 'Genius' Barred in Property Distribution.]

Five Rules for Studying for the Bar

2011-07-22T11:59:00.000-07:00

Note, 07/22/11: Final bump for the bar exam.

By way of encouragement, I would like to share the following true story from my own encounter with the CA bar last summer.

The first question on the bar last summer was a long, drawn-out torts issue-spotter with lots of battery and assault and negligence by the owner of arestaurant or bowling alley or something like that. The fact pattern concluded by asking, "Who is liable to whom, and for what?" Question two was ethics (I think), and question three was a horrible screw-job of an evidence question that instructed, "Answer according to California law." Like pretty much everyone, that question shook me up and at lunch I tried to find a quiet place to eat to collect myself. While I was there three women entered and sat at the table next to me. They started reviewing the morning's questions.

Their treatment of the first question was a long discussion about mental states, merger, and attempt, before one of the women, looking genuinely perplexed, asked, ". . . wait, wasn't that a torts question?"

THIS is the competition:

Hat tip to McTwo for reminding me of the fine work by Mr. Andrew Fong, featured above.
_________________________________________

These are my five rules for sanely navigating Bar/Bri and the bar study process. There may be others, but that's for the discussion to follow. Here we go.

Rule 1: Do what has worked for you. We all have different ways of organizing and compartmentalizing information for quick/effective recall later on. For some people, including Bar/Bri, mnemonics work. For me, they didn't. I personally recall things better when I write them out, and discuss. You may like flashcards. I couldn't use them.

Rule 2: Accept the principle of the Bar/Bri schedule, but not every technical detail of it. It makes sense to practice on a subject that you just learned, and later return to earlier subjects to constantly refresh your memory. But the pace is not mandatory.

Rule 3: How you study now should be different than how you study in late June/July. Right now, your goal is to learn elements, basic doctrine, etc. that you will be called upon to recall and apply to facts. Bar/Bri gives you a number of ways to learn those. See Rule 1. As you progress, your goal should become to apply what you have learned under test conditions. In the month of July, for example, it might make sense to do 3 essay questions back to back to back, or 100 MCs. By that time, you should also be able to fit everything you need to know about each subject on a single sheet of paper. In fact, there are such mini outlines floating around. Ask your colleagues. So to summarize: May (learning subjects / elements / doctrine) ---> Early June (same as May but increasingly returning to old subjects) ---> Late June (condensing knowledge of legal doctrine into bare essentials, increasing essay writing, MCs) ---> July (start memorizing bare essential legal doctrines, focus exclusively on preparing for the marathon that is the CalBar).

Rule 4: Try to study at least part of the time with others. Again, with the caveat of Rule 1, it was very helptul to hash out the issues presented by an essay among a few of us to get a better idea of what we all could have done to write a better answer. Also I often found myself distracted when I was alone. But with others, we all felt too guilty to be distracted so we stayed on pace. At the same time, working with others was helpful for Rule 5 in terms of having non-legal discussions and the like.

Rule 5: Have a release. This process is going to dominate every ounce of your soul. If it means taking a couple of evenings off to have dinner and watch TV (FX shows are about to start right in time), then do it. If it means taking Saturdays off to go to ball games, then do it. No guilty feeling here. The California bar is a three day marathon. And on the third day, it's your endurance that will be the biggest factor, not whether you went through an extra 100 flashcards. So I think not overburdening your mind early in the process is important.

The Administration Gets it Right: Boalt Won't See Further Fee Increases this Year

2011-07-21T15:31:00.001-07:00

Dean Edl*y just sent an email to the student body stating that we'll all be getting roughly $1100 in scholarship money to offset the 9.6% increase agreed on by the UC Regents last week.

Edl*y wrote that the increase came too late and that the school would be able to absorb the rise for this year. He also predicts that UC tuition will continue to rise over the years as the state continues to defund the system.

Here's the full text of the letter:

Dear Students:
I am sure that many of you have heard about the recent fee increase approved by the Regents last week. At their meeting on Thursday, the Regents voted to increase system-wide fees for all students, including professional students, by $1,068 for the coming year. The Regents concluded, and I agree, that the budget deal struck in Sacramento left the UC system with no alternative. The state's retreat from higher education continues what has become a sad trend in recent years, not just here in California, but across the nation.

This state's retreat has been most acute at the professional schools. Bitter though this pill is for us to swallow, it does have one benefit: although we have less remaining state subsidy, we will have more financial flexibility, and more autonomy than do other academic units within the U.C. system.

I am choosing to exercise this autonomy in the coming year to effectively reverse this last minute fee increase for all three of our JD classes, including our new admits. Each JD student will receive an immediate, automatic scholarship in the amount of $1,068. The tuition increase is just too much, and it came too late. I am optimistic that the added costs to the law school of providing this financial aid can be offset by increased alumni donations as the economy recovers, and by continuing efforts to hold down less-than-essential expenses.

You may be wondering what, if anything, this portends for the future of fees here at UC broadly and at Berkeley Law School in particular. Unfortunately, it is likely that tuition at the University of California will continue to increase in the coming years. However, I am confident that total fees at Berkeley Law will not need to increase any faster than they do at other top-tier law schools in the years ahead. By our calculations—and murky disclosures make comparisons tricky—our tuition next year (net of the new automatic scholarship referenced above) will be comparable to those at the Universities of Michigan and Virginia and below those of many of our private competitors.

Obviously, I cannot make any guarantees about future tuition levels. What I can guarantee you is that Berkeley Law will remain a financially-competitive, intellectually-luminous, professionally cutting-edge, culturally-superior, and all around fabulous law school community in the decades to come. Count on it.

Maybe this was an easy decision, but it was still the right one.

More Evidence of a Shift in the Political Tide?

2011-07-21T12:22:00.000-07:00

Yesterday, President Obama nominated Michael Walter Fitzgerald (Boalt '85) to be a District Judge at the C.D. Cal. He would be the first openly gay judge at the C.D. Cal. This comes on the heels of the smooth confirmation of Judge Oetken to the S.D.N.Y., which some have remarked as being remarkably unremarkable. As I've said before, there's still a lot of progress left to be done, but the issue of gay rights does not appear to be the lightning rod of firestorm for the far right it once was.

More importantly, I'm hearing through the rumor mill (I haven't had any direct dealings with him or his firm) that Michael is a great lawyer. So three cheers on the nomination of a Boaltie to the federal bench and here's to a smooth confirmation process.

DEATH ENDS 4-DAY SLEEP

2011-07-18T08:40:00.000-07:00

From the Oakland Times

February 26, 1920

Bruce C. Basford, U.C. Law Student, Victim Flue and Sleeping Sickness

Berkeley’s first case of sleeping sickness resulted yesterday in the death of Bruce Cartwright Basford, post-graduate student of the University of California. He succumbed after a sleep of four days.

Basford was 26 years old and a graduate of the State University with the class of 1917. He was taking a course in law and had just been initiated into the Phi Alpha Delta pre-legal honor society a few days before stricken with his fatal illness.

About two years ago, Basford inherited an estate of some $300,000 left by a wealthy uncle, Roger Johnson. He lived with his wife, formerly Beta Fogg, a University of California student, at the Cambridge Apartments, 2500 Durant avenue Berkeley.

A week ago, Basford was stricken with influenza. The malady developed into a case of sleeping sickness last Saturday, from which he never regained consciousness.

Ursus Major

Let's Talk About Debt

2011-07-17T13:28:00.000-07:00

I've been meaning to write a post about this for a while, but thinking about my impending debt gives me a major case of the sads. Like death or what my scrambled eggs actually are, I find life is more enjoyable if I don't think about it too much.

But graduation approaches and the gig is up. And I face an important choice.

As some commenters have noted, my class (the class of 2012) will be the last Boalt class to enjoy a "pure" LRAP program. By pure, I mean not dependent on new federal programs like IBR and PSLF. So on the pure LRAP program, Boalt would help me make my loan payments for my law school debt, up to $100,000, so long as I do approved legal work and am within a certain income level. In ten years, my $100,000 of debt would be paid. If I left the program at any time (for a private sector job, presumably), I would then be on my own to make payments, but my debt would be smaller, because of all those LRAP payments already made.

The problem, of course, is that I won't have $100,000 of debt. I consider myself lucky because I don't have significant undergraduate debt. And I guess I'll be "lucky" to escape Boalt with a bill around $160,000... errrr make that $170,000. But for LRAP, that's not a pretty scenario.

While LRAP would make payments for $100,000 of my debt, I would need to make payments on the remaining $70,000 or so. The nice lady in financial aid handed me kleenex as she explained this to me. It works out to be about $800 a month.

I've done some math, and this is definitely possible. But it would probably only be possible if I left the bay area for a better cost of living, and if I were lucky enough to land a public sector job paying in the $40-$50,000 range.

The alternative option for me (and the only option for the classes of 2013 and beyond) is to use IBR or PSLF in combination with LRAP (if I'm doing approved legal work). This means I enroll in either IBR or PSLF, which both allow you to make very small monthly payments on your loans. If I'm doing public sector legal work, LRAP will make those tiny payments for me. Which means no monthly payments! Woo! But it also means my debt is rapidly getting bigger over time. And if I leave PSLF at any point, I will have to pay off a lot more debt than when I started. No bueno my friends.

I'm pretty committed to a career in the public sector, but no level of commitment can make me feel totally comfortable with eliminating any private sector work as an option for me in the next ten years. Not to mention the concern that IBR and PLSF could be eliminated in this spending-cuts-only political climate. Dean Edley told some concerned students that he thinks the elimination of the programs is unlikely. I'm sure he'll forgive me for being skeptical. Would we be grandfathered in? I have no idea. Do you?

None of this is to whine. I know so many of my classmates who have it worse. And I'm really grateful that there is something in place that makes it possible for me to pursue a public sector career. I chose this path. Financial cushion is something I knew I was giving up in exchange for doing the kind of work I find fulfilling. But the two options certainly don't leave me feeling at ease. In case you're interested, I'm leaning towards traditional LRAP (and if any graduates have wisdom to share, I will gladly take it).

Future Boalt students pursuing public sector work won't even have my daunting choice to make. They have to use the IBR/PLSF + LRAP option. That's something I hope incoming public sector students are aware of.

Regents Hike Tuition by 9.6%

2011-07-15T10:32:00.000-07:00

This is on top of an 8% hike that was announced in the Spring.

It's not clear how this will affect Boalt students because as the Administration has said they are trying to come up with ways to mitigate the raise, but hasn't specified anything.

The timing of the raise is inappropriate because it has given only a month's notice to students coming back in the Fall and the raise was also made at a time when it is difficult to organize a response from students.

California's budget priorities are completely skewed- the death penalty costs us $184M a year and the prison budget for this year was over 7% of the state's total spending. In fact, in the 2011-12 budget, prison spending increased 2.3% while higher education spending decreased by 11.7%. Total statewide expenditure is down 6.1% over last year.

Of course, there's been no change in California's minimal property taxes.

As we get more information on how this will change Boalt's tuition this year and beyond we'll let you know.

Limited Utility of a Limiting Instruction

2011-07-14T10:45:00.000-07:00

There's plenty of coverage of the mistrial in the Clemens perjury proceedings. Based on what I've read so far, it appears the offending act was the introduction of inadmissible hearsay. In a strict legalistic sense, the out-of-court statements by Mrs. Pettitte are relevant to Mr and Mrs. Andy Pettitte's state of mind--a type of evidence that is routinely admitted with simple limiting instructions. But not so here. In fact it seems to have drawn the ire of the Court. Which seems to indicate some larger frustration by the Court with the Government's conduct / theory of the case. I really haven't followed this case, so any input or correction is welcome, but I'll try to unpack my thoughts below.

The hearsay at issue is Mrs. Pettitte's testimony that her husband had two conversations with her about Clemens using HGH (used her as shorthand for HGH, steroids, or whatever else Clemens is accused of using), which could be multiple levels of hearsay. On the first level, either Clemens told Andy he uses HGH and/or Andy observed Clemens using HGH. Neither of those are hearsay as one is a party admission, the other is not an out of court statement. At the second level, Andy told his wife about Clemens' HGH use on two separate occasions. The second level are out of court statements, with apparently no applicable exception or exemption.   Thus, the Government cannot use Mrs. Pettitte to prove Clemens used HGH.

Judge Walton appears to have ruled on a pre-trial motion in limine and excluded evidence relating to Mrs. Pettitte's testimony--though the reporting on this is a bit unclear. Fair enough. For the reasons mentioned above, the Government cannot use Mrs. Pettitte to prove that Clemens used HGH. So when the Government played tapes of Congressional hearings that included statements relating to Mrs. Pettitte's affidavit, the Judge, sua sponte, called a side bar and eventually declared the mistrial.

But that all assumes that the Government was playing the video to prove that Clemens used HGH. I don't think that's the case at all. Furthermore, Mrs. Pettitte's testimony would be relevant evidence of both Mrs. Pettitte's and Andy Pettitte's state of mind that they believed Clemens used HGH. This is fairly routine and courts regularly instruct the jury on the limited relevance of state of mind evidence. Why didn't the Court do that here?

I suspect the Court had Rule 403 in mind when it declared a mistrial. My suspicion is that Court's already leery of the Government's case and did not want the jury to conclude that Clemens used HGH based on discussions from the rumor mill. At least that's how I read Judge Walton's comment that it's too late to "unring" the bell--meaning that even a limiting instruction would not ensure that the jury could use Mrs. Pettitte's testimony as only relevant to a state of mind and not at all relevant to Clemens use of HGH. The Government just does not have iron-clad evidence that Clemens used HGH, so the danger of improper use of Mrs. Pettitte's testimony is fairly high. Would the Court have made the same ruling if the Government had videotape of ~~R. Kelly~~ Roger Clemens shooting HGC with his grandma saying "That's my Roger"? Doubt it. This all points to an instance of an already weak case creating pressure on the Government to sneak in any evidence of HGH use by Clemens to bolster its case to the point of over-reaching and pissing off the Judge.

For those studying for the bar, it's a great chance to think about baseball and claim to be learning the hearsay rule.

Human Rights Watch Renews Call To Investigate Bush Administration on Torture

2011-07-12T13:19:00.000-07:00

At the end of June, the Obama administration announced it was dropping 99 out of 101 investigations into the CIA's use of torture.

Human Rights Watch has since called again for the Obama administration to investigate what went on during the Bush II years and let juries determine whether or not water boarding and other techniques are legally justified in trying to prevent terrorism.

Would it be a legally justifiable defense for someone to use water boarding to find a kidnapped relative? What if the individual accidentally drowned? A debate between Kenneth Roth of Human Rights Watch (and a former USAA) and John Baker, a professor at LSU, touches on that and other issues in the eternal torture debate. Of course, Yoo was asked to participate, but declined. Excerpted in the Democracy Now debate is one of Yoo's weakest defenses of the policy. (And it includes the moment where Stewart calls him on the fib that 9/11 was the first attack in the US by a non-state group, Yoo responds by basically saying that 9/11 was different because it was different).

We know that Bush, Cheney, et al. would do it all again if they could. We know that the US prosecuted individuals for the same actions towards our troops and other countries' troops in the past. What makes things different now?

Two Wives Are Company, Three Are a Crowd. Four Seems Reasonable

2011-07-12T10:33:00.000-07:00

7/12/11 - Update: Hold on tight, because it seems we are all falling down Scalia's slippery slope. I guess it shouldn't be surprising that the Brown family is championing the cause; they're sort of a model polygamous family. They're not asking for state recognition of their "spiritual marriages." They just want to be left alone. Seems like private consensual sexual conduct to me . . .

I’m a pretty busy person but I still make time for the important things in life, like a Sister Wives marathon on TLC. I was never part of the Big Love craze, mostly because I’ve never been blessed with HBO. Luckily the reality TV version is more accessible.

I have complicated feelings about polygamy but my gut reaction is one of distaste. I grew up in a suburb in Utah not too far from the TLC family. Polygamy certainly wasn’t prevalent, but we all knew where the polygamists lived and we recognized their distinct clothes and hairstyles at the grocery store. As I got older, this fact bothered me; everyone knew where the polygamous communities were, yet local or state government only seemed to prosecute polygamy when it made the press. This usually happened because some young girl left (or escaped) a polygamous community and was brave enough to come forward and demand action. I couldn’t help but wonder how many girls my age were living in unwanted polygamous marriages, waiting to be saved.

Sister Wives challenges the view I’ve always had about polygamous relationships. There are three wives in the Brown family (with a fourth on the way). Each of these women chose, as adults, to enter a polygamous relationship. They not only knew their husband intended to take on additional wives, they wouldn’t have it any other way. They enjoy having a big family. They like sharing child-rearing responsibilities. They value the bond they have with their fellow wives. Their religious views encourage their adopted lifestyle. Essentially, they’re not the 14 year-old girls forced into marriage with an old dude that I always pictured when I thought of polygamists.

In Con Law last year, I remember being outraged when Scalia, in his Romer v. Evans dissent, compared homosexuality to polygamy (and bestiality and bigamy and murder). The gist of the argument is that states have always been permitted to enact law based on moral disapproval and concern for the social harm caused by certain acts. Scalia asks, “Has the Court concluded that the perceived social harm of polygamy is a "legitimate concern of government," and the perceived social harm of homosexuality is not?” My answer was that polygamy creates social harm and homosexuality does not.

But I’m not sure I’m right about that.

I know there are polygamist relationships that are manipulative, abusive, and harmful to women and children. My biggest qualm with polygamy remains that many polygamist sects are notorious for forcing young girls into controlling and dangerous marriages.

But is there really societal harm when a group of three or four (or five or six) adults make informed, un-coerced decisions to live together and raise children as a family? They certainly aren’t bothering me.

I don’t really have an answer on this one and I’m curious how others feel. I do think that when (not if) gay marriage is fully recognized in the near future, the polygamy issue will have to be reckoned with.

Google Plus (or Minus?)

2011-07-08T15:26:00.000-07:00

I'm curious to hear what people think about Google +.

From what I've seen in various status updates, people love it - but my first reaction when I signed up this afternoon was alarm (because it seems to have aggregated a whole lot of information about me, including pictures from blogs I've long ago deleted), mild disgust (at the obvious effort to emulate facebook's model), and claustrophobia (because you really don't have many options when it comes to hiding/deleting things).

Am I being a stupid 20-something old-timer deluded by her desire to return to facebook before Farmville, and iPods that had actual buttons so you don't accidentally blow your ears out every time you adjust the volume? Is Google + the new future of social networking, document management, etc? Or is it going to die a violent death like Google Buzz (I know it's still around, but it definitely didn't live up to its hype) and potentially lead to a panoply of privacy suits?

Share your love, hate, whatever in the comments.

Epilogue: While putting the finishing touches on this post, blogger displayed a giant red "Error" message and suggested I copy/paste this content and restart. I feel like Big Google is watching.

U.C. STUDENT WINS DOUGHNUT TITLE BUT IS RULED OUT AS PROFESSIONAL

2011-07-07T14:31:00.000-07:00

From the Oakland Times
October 12, 1926

Francis W. Read, graduate law student at the University of California, now holds the Boalt Hall of Law doughnut eating championship, but he will never again be able to defend his title against an amateur challenger.

He was yesterday declared professional.

Read, who has been nick-named the “Glendale Glutton,” by admiring followers for his masticating propensities, yesterday prepared to defend his title against Ray G. Stanbury, also a graduate law student and former university debater. Stanbury backed down on the title bout at the last minute, however, and Read was forced to enter the ring alone.

In order not to disappoint his large coterie of supporters, the “sinker champ” staged an exhibition in which he downed an even dozen doughnuts in 15 minutes, ate another for good measure, and bought a half dozen more in case he should still be hungry.

His amateur status ended, however, when Donald P. Nichols, president of the Boalt Hall Law Association and former football star, who was to referee the match between Read and Stanbury, turned over to the titlist a percentage of the wagers won by reason of Stanbury’s failure to show for the tilt.

A board of arbitration, composed of law students, yesterday afternoon ruled that as Read had accepted money for taking part in the contest, he would henceforth be considered as professional and ineligible to take part in future amateur contests.

Ursus Major

Casey Anthony Acquitted... Oakland Doesn't Riot

2011-07-06T22:22:00.000-07:00

As most of you (if not all of you) have heard by now, Casey Anthony was acquitted of, well, anything anyone cared about. In a shocking post-trial twist, the citizens of Oakland, who have historically cared so much about ensuring justice is done, were quiet.

But then again, who cares about the death of a two year old girl? She probably deserved it. Moreover, Casey Anthony's conviction on four misdemeanor counts of providing false information to a law enforcement officer is much more satisfying than Johannes Mehserle's conviction of involuntary manslaughter!

In the end, I think we can all agree on one thing: Casey Anthony definitely didn't do it.

Fun With Numbers (9th Circuit Edition)

2011-06-30T18:54:00.000-07:00

Who cares about the 9th Circuit, anyway? Well...Boalties, I guess, especially since they refuse to apply for clerkships outside California. So I thought N&Bers might be interested to see how their home team fared in the Supreme Court this past year.

SCOTUS released 84 opinions this term. 26 of these, or 30%, arose from the 9th Circuit. 18 of these were reversed. (To be fair, that's not so bad. SCOTUS doesn't grant cert. because it wants to affirm. I've heard that the last 17 cases from the Sixth Circuit have been reversed.)
What about the circuit's liberal bad boy, Stephen Reinhardt? He was on the panel of 6 cases and wrote the majority opinion on 3. The Supreme Court reversed all 6.
Actually, all 3 majority decisions written by Judge Reinhardt were reversed unanimously. Of the 3 others, 1 was reversed unanimously and 2 were reversed by a 5-4 (conservative) split.
Judge Bybee--Judge Reinhardt's ideological opposite--was on the panel on 2 of the 3 cases where Reinhardt wrote the court's opinion and dissented in both. The Supreme Court did not grant certiorari on any case in which Judge Reinhardt wrote a dissenting opinion.
7 of the cases where the Supreme Court granted certiorari contained dissenting opinions: 2 by Judge Bybee, 2 by Judge Kozinski, and 1 each by Judges Bea, Ikuta, W. Fletcher, and Cudahy (7th Cir.). (Judges Ikuta and Kozinski both wrote dissents on the same en banc case.) With the exception of Judges Fletcher and Cudahy, those are all "conservative" judges.

I doubt Judge Reinhardt is worried about getting reversed; he's claimed that it's not because he has moved to the left, but rather because the Supreme Court has moved to the right. That may be true, but the argument is weakened when even the so-called liberal judges are voting to reverse.

Is it unseemly to point out Judge Reinhardt's reversals--without name-hiding asterisks, no less? After all, he was on the panel in Plata v. Brown, the controversial California prison decision that the Supreme Court affirmed. But technically, the Supreme Court was reviewing a decision of a 3-judge district court panel, not a 9th Circuit opinion. And besides, Judge Reinhardt has apparently ~~never hired a Boaltie as a clerk~~ only hired about 2 clerks in the last decade, so he deserves some ribbing.

Say it Ain't So!

2011-06-30T11:26:00.000-07:00

Notice anything wrong with the photo caption above? A missing comma, perhaps?

Full disclosure: I am a staunch supporter of the serial comma (also called the “Oxford comma,” though I don’t use that phrase because I don’t want to contribute to Oxford’s appropriation of what should be common sense) and I tend to agree with Carbolic, who once remarked that "People who refuse to insert a serial comma would steal sheep." In case you haven't been sucked into this particular debate, the serial comma is the comma that real writers insert before the conjunction (usually “and”) when setting forth a list. Much ink has been spilled, and many brave young serial commas lost, no doubt, in the war over whether the serial comma is mandatory, desirable, or superfluous. For my part, it's near-mandatory, pretty much for the reasons the caption above is so funny.

Today is a sad day for those who share my news. Today’s sad news is that Oxford has officially dropped the “Oxford” comma from its detailed, lengthy, and at times snooty style guide. See here for a brief article and a highly distressing pie chart. Oxford’s new guidance provides:

As a general rule, do not use the serial/Oxford comma: so write ‘a, b and c’ not ‘a, b, and c’. But when a comma would assist in the meaning of the sentence or helps to resolve ambiguity, it can be used – especially where one of the items in the list is already joined by ‘and’ . . . .

Oxford be damned, I’m leaving my comma right where put them. I don’t have a devil-may-care attitude toward ambiguities (especially in legal writing), nor do I trust myself to catch every two-faced in every sentence I write. I view the serial as a tiny, curved insurance policy against situations – like the caption above – that could leave the reader wondering if I am aware of what I am saying. I will keep, like, and defend my serial comma. To the bitter end.

*Hat tip to Boalt's handsomest, dashingest Latin scholar for the tip.

Hot Coffee

2011-06-28T09:56:00.000-07:00

I watched the HBO documentary "Hot Coffee" last night and wanted to flag it for anyone interested. Pretty good, I have to say. If I had to sum it up in one sentence, I'd say it's a good look at how voters' ignorance is exposed to pass laws that severely restrict consumers' access to the civil courts. Just ask your relatives if they know what tort means.

My one small gripe is that it really ignores the flip side. It paints jury trials as an ideal. But there's no mention of the cost of conducting a jury trial and the enormous pressure to settle even when facing frivolous claims. Anyway, watch it, it's good. And if you're studying for the bar, there's plenty of issue spotting for you.

As an aside, am I the only one in love with HBO:Go?

EDIT: And during my morning reading I see that ATL has a rather lengthy post about the documentary as well. So an ex post H/T to them, I guess.

Let's Be Marines

2011-06-21T10:41:00.000-07:00

Further to my thoughts that the issue of gay rights, although very, very far from ideal, has come a long way in the past few years, is this story about the Command Sergeant Major of the Marine Corps addressing the topic. What really caught my eye:

“Article 1, Section 8 of the Constitution is pretty simple,” he told a group of Marines at a base in South Korea. “It says, ‘Raise an army.’ It says absolutely nothing about race, color, creed, sexual orientation.

Take that, originalists/textualists!

Shorter GOP Debate

2011-06-13T17:30:00.000-07:00

Tim Pawlenty: Why can't we have a strong, heavily government regulated / socialist / Communist / bubble-based economy like China or Brazil?

Michelle Bachman: I have secret, breaking news: I'm running for president.

Newt Gingrich: We need to return to the good times of banks lending indiscriminately and Enron lying through its teeth. Things were great back then.

We're not a developed country because of NASA.

Mitt Romney: I hate myself for implementing a successful policy. If Obama asked, I'd tell him not to do what Mitt Romney did. The following words polled well so I'll just throw them out: States. Power grab. Repeal.

Ron Paul: This country has been declining since 1933.

Herman Cain: I have 0 qualifications for this office.

Rick Santorum: ...

***

I'm done listening. If you want to indulge yourself feel free to add your own summary of the debate in the comments.

Dewey Defeats Truman

2011-06-12T14:31:00.000-07:00

I just grabbed this screen shot from the LA Times homepage. Someone hit the publish button too early. Of course, this is not unique to the publishing industry as I've had my own terrifying moment of hitting send on an email that was mistakenly reply-all. Happens to everyone at least once. C'est la vie.

Arrivaderci Academia

2011-06-04T14:26:00.000-07:00

It occurred to me that there are no longer any current Boalties who were around when Dean Ortiz (she'll always be Dean O to me) was our Dean of Student Services. I don't know the current Dean of Student Services, but I just simply cannot imagine anyone filling the big shoes that Dean O left behind when she became the inaugural Dean of Admissions at UCI. I can write a very lengthy, gushing letter about all the greatness of Dean O (not to mention the institutional memory she brought to the law school), but this is not the place.

This post is simply to congratulate her on her new venture, a law school application consultancy. So three cheers to Dean O's new gig, and if there are any law school applicants out there, I can't think of any one better equipped to advise on the admissions process.

But I Want My Grades NOW! NOW NOW NOW!

2011-06-01T12:10:00.000-07:00

It is June, and as such all of you anonymous commentors now may have a place in which to complain about grades (or the lack thereof). As a benchmark, the deadline for exams to be scored is June 7th, and the deadline for final grades to be submitted is June 15th. Of course, it is common for professors not to comply with these deadlines, so take those dates with a grain of salt. I hope everyone is having an excellent summer thus far, and that preoccupation with grades is not preventing anyone from enjoying not needing to be preoccupied with school!

Bad People and Fools

2011-05-31T21:04:00.000-07:00

Below, I have excerpted a comment "ibz" posted in the bar exam thread. The comment makes a great starting point for discussion, but first, the cliff notes: law schools (including, perhaps, our very own) have been inflating their stats on employment rates and average starting salaries. Many prospective law students do not fully comprehend this situation until they enroll, pay three years of tuition, graduate, and find themselves un- or under-employed. Recently (and rather predictably, given the particulars of their education and their relative idleness), unemployed alumni of Thomas Jefferson School of Law sued their alma mater, alleging various versions of detrimental reliance and fraud.

Here is ibz's take:

I had only skimmed the coverage of the newish lawsuit against Thomas Jefferson School of Law, but David Lat pointed out today that the complaint was filed by a Boalt grad named Brian Procel. Cool.

The complaint is pretty detailed and worth reading, if you are interested in this sort of thing. My own intuition (moral, not legal) is that schools are bad if they misrepresent what happens to their graduates, but students are foolish if they rely on what schools say about employment statistics. Caveat discipulo, so to speak. (Third declension, right? It's been a while.)

My intuition is in line with ibz's. Absent other strong feelings I will root for co-Boaltie Procel as an extension of principle, but my enthusiasm wanes when it comes to the merits. The world is full of crookely people who will do crookely things to relieve other people of money. I can think of no good reason to believe that the individuals who run our academic institutions are magically above the fray when it comes to those impulses. But--as ibz points out--neither should prospective law students: if it sounds true good to be true, it isn't. I don't know what "caveat discipulo" means, but I have yet to be convinced that caveat emptor shouldn't apply here.

All of that is why I have a hard time getting fired up about this issue. I feel for the students who feel afraid for their futures and more than a little duped (most them went to law school to AVOID the school of hard knocks, only to graduate with an advanced degree) but I'm not yet convinced they are blameless enough to be entitled to a refund. A jury, I suppose, could see things differently.

Liuuuuuuuuuuuuuuuuuuu*

2011-05-25T18:38:00.000-07:00

I think this post by Adam Serwer on the imminent vote for cloture on the nomination of Professor Liu is probably spot on. I'm not sure there's anything more to add to that, but I'm personally not very optimistic about Professor Liu's chances of confirmation. I'm hopeful though that Democrats will use any filibuster of Professor Liu as leverage to push through other nominees, like how Bush pushed through Kavanaugh, Owens, etc.

* Reference.

SNARKY UPDATE #1: Well here's a trivia question. Which Bay Area law school is more likely to celebrate the appointment of one of its extended family members to the United States Court of Appeals for the Ninth Circuit? Hint.

UPDATE #2 [and moving up]: Well looks like it's over. Would have loved to have seen Professor Liu on the bench, but again, I hope there's a silver lining that maybe creates an impetus in Chairman Leahy and Harry Reid to move along other stalled nominees. [H/T: Anonymous].

Please 1.5 speed me!

2011-05-24T09:47:00.000-07:00

Ctrl + Shift + G no worky. My life, terrible. Please help.

And yes, I know this is an individual plea, but I know I speak for many of us in making it.

Boaltie Running for US Congress

2011-05-21T13:07:00.000-07:00

Ricky Gill, of the class of 2012, has announced his candidacy for a seat in the United States Congress. He hopes to represent California's 11th District. Check out Gill's campaign website at http://www.rickygill.com/

While I will likely support the Democratic incumbent, Jerry McNerney, I am excited to see a Boaltie diving head-first into politics. And I admire his decision not to "wait his turn" and run despite his youth (he is 24).

The Futurue of LRAP?

2011-05-19T19:50:00.000-07:00

Dean Edl*y sent out this email earlier today:

Dear Friends,

I recently received a petition signed by several Boalt students concerning the state of Boalt’s Loan Repayment Assistance Program (or LRAP). Realizing how important LRAP is to the School and to many of you, I write to share some of my current thinking about LRAP in the context of the University’s budget turmoil.

First, let me offer some background. Approximately fifteen years ago, Boalt established LRAP to enable our graduates to pursue careers in public service by assisting them with loan repayment. As Boalt tuition increased with state budget cuts, funding for LRAP similarly increased, most notably in 2006 (my second year here) when it was substantially reformed. Under the original guidelines, only a relative handful of students participated in the program because the parameters were so conservative. This reflected the lower tuition, and the consequently modest typical debt loads of students but also the far smaller Boalt budget, of which tuition revenue is by far the largest component. Under this revised LRAP, graduates became eligible for up to 100% repayment assistance on as much as $100,000 of law school debt. For students working in qualifying public sector employment, the result could be a $0 out-of-pocket debt repayment for LRAP participants as Boalt absorbed the tab on the amortizing loans.

Although this revised program was one of the most generous in the country, two developments prompted a further modification of LRAP in 2009. The first was rising tuition rates across the country at both colleges and professional schools, including here at Boalt. With 1Ls arriving with already significant undergraduate debt-burdens and 3Ls leaving with even larger ones, it quickly became clear that even our commitment to repay $100,000 of law school debt may not be enough to assist Boalt graduates interested in pursuing public interest careers.

At the same time, however, the College Cost Reduction and Access Act of 2007 (CCRAA) created both the Income Based Repayment (IBR) program and the Public Service Loan Forgiveness (PSLF) program that provided a way to address this challenge in a fiscally sound fashion. Under these two programs, any graduate who enrolls in IBR for their federal loans will make minimum monthly payments based on their income. And for those who consolidate or have all of their federal loans with the Direct Loan Program and make 120 scheduled monthly payments while working for qualified public interest employers, their remaining loan balance will be forgiven by the federal government. Based in large part on Boalt student input in 2008, we revised LRAP to take advantage of these benefits: Graduates pursuing a career in public sector work could consolidate law school as well as college loans and elect IBR. Berkeley would then provide assistance with making all or a prorated amount of IBR payments for ten years, at which time the remaining debt balance would be forgiven.

In my judgment, the move to IBR seems undeniably a win-win for both Boalt and our students.[1] Graduates can now pursue a career in public interest work regardless of the size of their law school and college debt burdens. Meanwhile, Boalt benefits by making the most efficient use of scarce financial aid resources, freeing up more money for other important grants and fellowships. That so many of our competitors have since emulated the manner in which we have integrated LRAP and IBR/PSLF seems to confirm the wisdom of this strategy.

Notwithstanding these benefits, however, the student petition as well as research by the Financial Aid Committee this year have highlighted two areas in which this strategy merits further review to ensure that LRAP is the best that it can be. One relates to the cost students could incur if they leave public sector work prior to making their 120 payments under IBR; the other focuses on the chance, which in my political judgment is remote, of adverse changes to CCRAA by Congress.

For this reason, I wanted to let you know that we will be inviting BHSA to work with the Financial Aid Committee next year to undertake a substantive review of these issues and to investigate the different approaches Boalt might take to address them in a reasonable fashion. BHSA’s involvement is especially important because almost all LRAP resources necessarily come from tuition revenue, making the program one in which students cross-subsidize each other over time and across careers. At this point I have no strong view about what alternative approaches might look like. We don’t even know how much further our state funds will be cut in the next six months, much less beyond that.

But for those of you graduating and who worry about the issues raised in the petition, I assure you that absolutely nothing is more important to me, or the faculty as a whole, than the robustness of our Financial Aid programs. They shape the character of the student body, and express a core component of Berkeley Law’s mission. Therefore, the Financial Aid Committee and BHSA will have my focused attention on this matter as they analyze these issues next year. I can also assure you that if we adopt positive changes to LRAP, I will make sure they are retroactive for the class of 2011—the “Hardhats”.

Sincerely,

Christoph[*]r Edl[*]y, Jr.
The Honorable William H. Orrick, Jr. Distinguished Chair and Dean

[1] I can’t resist adding that in 1987, presidential candidate Michael Dukakis proposed a very similar program, designed by Gene Sperling and me. I was national issues director for the campaign, and Sperling was my junior staffer on economic policy. He’s now director of the White House National Economic Council. I’m a fundraiser. But I’m not bitter.

It seems like he provides some good context for why he is transitioning the program to be based on IBR. Admittedly I do not have the most complete knowledge of this issue, however. For example, I do not know what exactly the petition in question contained.

At any rate, I am sure opinions will be diverse on this issue! I look forward to seeing them in the comments.

Lost in the Bar

2011-05-19T10:51:00.000-07:00

You know you’re studying for the bar when:
Everything as a potential lawsuit: (1) The street people on the corner who as you for money are potential trespassers; (2) your friend’s drunk dialing to tell you “what a fun night you’re missing” is some sort of infliction of emotional distress; (3) you consider ceasing to pay your credit card bill because the contract is unconscionable.
You openly fantasize about blacking out and being hospitalized for the week of the bar exam.
You have legal Tourette Syndrome. If someone looks at you the wrong way, you automatically fire back with unintelligible legalease: Tort! Hearsay! Rule in Dumper’s Case!
You suspect Miranda or Shelly would be hot if they were women and not rules of law.
You have nightmares about fertile octogenarians.
Welcome, class of 2011, to bar studies.

California BarBri for most Boalties began earlier this week an judging by the facebook chatter I have seen so far, many of you are freaked the hell out. If that’s you, your feelings are normal, for what that is worth. Things will settle down a bit in the next few weeks and at any rate this whole thing will be over in a few short months.

In the meantime, feel free to use this thread to cry, vent, or anonymously ask questions about the bar exam that you would be far too embarrassed to ask in person. I hope you’ll find this to be a pretty supportive thread. Good luck!

(HT: Legally Noted.)

Probably the Most Pointless Post Ever

2011-05-15T11:24:00.000-07:00

Some anonymous whiners wanted to bitch about how the class of 2011 had to sit through 3 years of construction or something, and they wanted a post about it I guess?

So, yeah, here it is. Converse away.

"I Prefer Logical Punctuation". "Others Don't."

2011-05-13T10:14:00.000-07:00

One of my biggest beefs with English style (and accordingly, those who pick grammar's nits) is the handling of hierarchical punctuation and the inconsistent American English approach to dealing with it. For example:

1. Toney scissor-kicked the mailman with what could only be described as "badger-like fury".

2. But in Toney's defense, the mailman said Toney "wrote like drunk 2-year old."

In traditional American English, example 1, while beautifully illustrative, is incorrect, all because the little "." at the end of the sentence isn't tucked inside the closing quotation mark. I actually learned this rule as a kid, but somewhere along the way, I developed a distaste for putting periods (and commas) inside quotes and brackets, and can no longer bring myself to do so. This is a bit of a problem when I hand in a draft to an overseeing attorney who prefers the old school line of thought, but nothing a little preemptive Ctrl-F'ing can't handle.

Ben Yagoda (one of Slate's finest) pens an article highlighting the turning tides against the traditional American way, and towards what he calls "logical punctuation". He gives two main reasons for this: 1) computer programming (operative punctuation must be place outside grouping/statement punctuation), and 2) the American way doesn't make sense.

Brits (who took Saxon olde English, circumcised it, and gave us the Chancery Standard) put periods outside of quotation marks. What happened with us? Yagoda's research finds that periods inside quotes developed because it is more "aesthetically pleasing". Yuck. I appreciate that beauty trumps practicality when it comes to many things (such as architecture and handbags), but punctuation should not be one of them (similar to mullets and tuxedo t-shirts). In addition, the way different punctuations are handled in American English is inconsistent. ?'s, ;'s, and -'s go outside the quotes. Yagoda also highlights the new composition medium, the internets, for being ripe with examples of periods outside quotes. If there's one thing we all know by now, it is that the internet never lies.

Anyway, I'm fully on board with this. Tradition for the sake of tradition (without logical purpose) drives my batty, and is to blame for everything from Prop 8 to those silly paper facebooks they still make at BLaw. It is only a matter of time until periods outside quotes becomes standard usage, but until then, I will grit my teeth and will plan the future demise of the capitalized "internet".

Also: congrats to you graduating 3Ls! I hope the protesters weren't too meddlesome this morning.

Whine and You Shall Receive

2011-05-09T19:24:00.000-07:00

Just responding to a request for a forum for 1Ls to complain about being graded for WOA this year. We all need to whine sometimes, particularly during finals, so let me indulge you.

I sympathize with you guys. As one commenter pointed out, having a P in WOA wouldn't exactly be ideal for those with an interest in litigating (though I don't think it's fatal). It is a nice opportunity for strong writers, who might not do well in first-year required courses, to set themselves apart. I also agree with McWho that the complaint about the curve could apply equally to doctrinal classes.

I will go ahead and strongly disagree with the person who said the only feedback you're getting is your letter grade and some "checkmarks." That's patently untrue. From TA feedback to instructor draft feedback to oral argument feedback to final brief feedback, everyone involved in WOA worked pretty hard to make sure you knew where you stood and how you could improve.

Have at it.

Library Hours/Access

2011-05-04T14:11:00.000-07:00

Per Anonymous's request, here is the thread. My own view has always been in line with McWho's. There is absolutely nothing preventing the library from having more restricted access. Just because it's a depository of public documents does not mean it must have a welcome mat for every frat guy who wants to study for a soc final.

Osama Bin Laden Dead

2011-05-01T20:51:00.000-07:00

As I am sure many of you know, U.S. Armed Forces killed Osama Bin Laden in Pakistan earlier today. I do not know what will result from this (if anything), but at the very least it is a symbolic victory for the U.S. in its counter-terrorism operations world wide. Feel free to discuss the significance (or lack thereof) of Bin Laden's death in the comments!

[Invisible Hand Update (Armen): I guess I am now old enough to find these types of advances in technology and mass communication impressive, but I find it absolutely remarkable that someone could have unwitting liveblogged the raid on Bin Laden. I have posted some screen shots, but please scroll down to the bottom and read up. Pay particular attention to the jaded wit. Sounds like a Boaltie, almost.]

And later...

Law Students do NOT Lose the Grant Game as Schools Win

2011-04-30T19:04:00.000-07:00

New York Times business writer David Segal is fast becoming journalism's expert on law students and law school. That's good, because we need one -- although I love David Lat, that blowhard Elie Mystal at Above the Law has been a pretty sorry oracle. Segal, in case you don't know him, is the author of January's excellent and on-point article entitled "Is Law School a Losing Game?" Over the weekend, he published another detailed piece entitled, "Law Students Lose the Grant Game as Schools Win."

This weekend's piece points out something that most lawyers and law students either know or intuit, which is that lower-ranked law schools attempt to boost their U.S. News & World Report rankings by using merit-based grants as a carrot to entice students with high LSAT/GPA's. In a typical arrangement, the student is allowed to keep a partial or full scholarship through all three years of law school, contingent on the student's ability to maintain, say, a 3.0 GPA. If the student fails to do so, the grant or scholarship goes away and the student begins paying the same price as his or her peers. Because schools know that the grade curve means not all of these students will be able to maintain the grades they need, the schools are able to offer more three-year scholarships than they will in fact pay for three years. In short, the thesis of Segal's article is this: students "lose the grant game" because although everyone who accepts a grant or scholarship enters law school expecting to graduate with a high GPA, not all do; law schools "win the grant game" by using students' irrational optimism about their own scholastic abilities to advance the school's status in the rankings. Although it is true that both sides are gambling (students on their grades, schools on the rate of grant-program attrition), in Segal's view the house (i.e., the school) generally has better odds because it both set the grade curve and holds crucial data, like the average number of students who lose their scholarships each year. As a result, the casual reader of the article comes away with the nagging feeling that students are victims, and that schools are engaging in what can only be called exploitation.

I don't buy it. I do buy that 'average' schools use this tactic to ~~purchase~~ entice 'above-average' students. And I do buy that some, perhaps many, grant-getters experience unexpected and genuine hardship when they start paying full tuition because they are unable to maintain their GPA's. What I don't buy is that these particular students are victims of their law schools.

Here is why. First, of what have these students been deprived? The ability to attend law school for free even though they are ultimately average law students? That hardly strikes me as an entitlement. Remember: students who fail to maintain their grades and lose their scholarships are no worse off than their peers. It means only that they will start paying the same price as everyone else. Put another way, a student's decision to accept this type of scholarship is really a risk-free bet on their own ability -- win, and get free money; lose and be no worse off than their non-betting peers. (You may say that a student who accepts a scholarship in return for going to the lower-ranked school gives up unique opportunities at the 'better' schools that likely accepted them. It's a fair point -- and not explored in the article -- but my suspicion is that a student who does not maintain a 3.0 at a lower-ranked school is unlikely to have benefitted from the marginal increase in value at a better-ranked school. That's harsh, I know, but it's also likely true.)

If you think that was harsh of me, wait until you hear my second observation: at some point, these students (who want to be lawyers -- i.e., represent other people's vital interests) need to read the fine print. A good time to start is when their own careers and tens of thousands of their own dollars are on the line. To be told "all you have to do for $80,000 in scholarships is maintain a 3.0" ought to make a prudent, college-educated person wonder, "exactly why are they willing to give me eighty grand?" or at the very least, "just how hard will it be to maintain a 3.0 at this place?"

So, there's my take on Segal's latest article. I think that in this case he's barking up the wrong tree. I do appreciate the attention he is paying to law schools and to the plight of law students who are currently being ground to pieces by the current, cruel shift in supply and demand in the market for young lawyers. Many law students are victims. Some are victims of schools' promises about employment. Some are victims of the great shrinking economy of the late 2000's. Some are victims of their own apathy ("well . . . might as well go to law school") or of their own inability to critically examine a dominant cultural message ("a law degree is versatile and will always have value"). But students who are offered free money to get good grades, and who lose that money because they end up without them, aren't victims at all. They're ordinary speculators who placed a risk-free bet on their ability to compete in an unfamiliar environment, lost, and ended up no worse than the rest of the pack. (Better, actually, because they got that first year for free.) I realize people will disagree with me. Or worse. That's okay. I do feel for students who made a prediction about their future, and even acted in financial reliance upon it, only to find themselves somewhere they never planned to be. But in my view that experience, however painful, doesn't necessarily mean they are victims of their law school.

Anyway, part of what I hope this post does is shed some light on whether students at Boalt feel our own school's financial aid practices are predatory. I have my own views on this (and in light of the above they may actually surprise you) but I hope to hear first from the anonymous masses. Fire away.

Straight from the Horse's Mouth: Spring 2011

2011-04-30T18:11:00.000-07:00

In response to persistent requests, here is this is the Spring 2010 Professors Quotes thread. On behalf of the many folks who attend Boalt vicariously, by interacting with this blog, please: post away!

The Royal Wedding

2011-04-29T10:33:00.000-07:00

This nation is being torn apart. One the one side, you have the unabashed Royalists taking up precious space on DVRs across the country with hours upon hours of coverage of the fanfare and pageantry. On the other, you have the, shall we say, Patrick Henrys. You've seen their Facebook status updates, often drawing upon all sorts of historical references ranging from our Revolution to the Magna Carta.

I find myself a bit torn on this. I recognize the whole thing is rather silly. It appears William does to, at least according to lip readers who claim he said "We're supposed to have a small, family affair" at the altar. The silliness is compounded by an outlandish procession, paid for by the public purse (because really the Royals don't have too much wealth on their own). But I also don't thinks that we Americans are that different than the British. Are you telling me Americans are not obsessed with a family of do-nothings? (Kardashians). Are you telling me we don't have a distinct upper class elites who "dress for dinner" and use the word "summer" as a verb? (The Cabots, the Lodges, the Kennedys, the Walkers/Bushes, etc.). Only difference is the target of the public's obsession in the UK is passed on by the rules of inheritance. (Plus there's no employer in the US that would give anyone the day off to watch this nonsense).

I wish the Duke and Duchess a happy marriage and the best in life. Now, time to focus on more important things, like the NFL draft.

A Message From the Past

2011-04-28T18:38:00.001-07:00

I want to remind everyone exactly what Boalt is all about. Luckily, I found this film in the archives. Enjoy!

Please, Sir, May I View the Course Evalutations?

2011-04-21T17:15:00.000-07:00

Some of you may have noticed that the rules have changed for course evaluations. If you don't do all of your evaluations, you no longer get to see any of the evaluations for any classes. Apparently the carrot of $50 Amazon gift cards wasn't working well enough and the administration had to get out the stick.

Now, usually this is the sort of thing that I don't even realize has occurred because I don't read emails from the administration unless they're from M*nd*, but so many of my peers have complained that I felt like it was at least worth discussing.

I understand, powers that be, that you want as much data available as possible. That makes sense, this information is helpful to us, we use it to choose classes and professors and I guess it helps make professors better teachers. I understand that you want us all to evaluate everyone. But, there are often reasons why people don't evaluate: maybe they forget to, maybe they don't care, maybe they feel like they'd be offensive to the prof if they were forced to. I cannot imagine that forcing individuals to fill out those forms is going to improve the quality of the teaching evaluations. Instead, you'll get lackluster or random responses from individuals who don't want to take the time, but feel forced to write something.

Also, let's be honest, it's a shitty way to treat a bunch of people who pay $42,000+ a year to take those classes. It's not a positive way to treat your students (and come on, let's be honest, we're paying customers and that's how the school, at the end of the day, views us).

Bar & Bar Studying Overview Talk Today!

2011-04-21T09:27:00.001-07:00

Hey guys,

Just a quick reminder about the bar talk going on today. I've been told it wasn't on the events calendar, but it is still happening today at 12:45 in Room 12. Hope you guys can make it, but no worries if finals and whatnot prevent you from doing so.

A Message From a 3L: I've Got More Debt Than You. Seriously, I Win.

2011-04-20T11:01:00.000-07:00

A 3L friend asked that I post this to encourage all of you to give as you graduate:

300k. By the time I pay it off, it'll be >600k. That's a house - my debt.

And, I'm giving $100 to the Death Penalty Clinic, because it can do better with $200 than I can. I give $100, and it becomes $200, because alumni double whatever 3Ls give to the Class Campaign. For this, I get a t-shirt, pint glass, key chain, and satisfaction that the kids in the DP clinic can buy a new printer (they really need one).

I'd have 400k of debt, but I got a ton of grants here. I worked with the center for law and technology to fund a conference on HIV and neglected disease technology platforms. When we wrote a letter and asked Edley to sign it and send it to dozens of Congresspersons and Senators, urging repeal of Don't Ask, Don't Tell, he did it, and he took the lead in recruiting other deans to join him. MSVH let us listen to Aqua in class. Amy K introduced me to the Center for Emerging and Neglected Diseases, a campus unit that later gave me a fellowship. T$lley brought donuts to Corp-Fin; B*mberg*r fed us chocolate and whitefish (in a sense); and Skl*nsk* challenged us to kill the felony murder rule.

The point is that our school, for all its flaws, educated and supported me, and it was able to do that because folks who came before us supported it. Our faculty are in demand - the ones who actually changed your life, they're not free.

Each one, teach one, and each one, support the thing that supported him. Some of us have complaints about financial aid (good, put your money where your mouth is); and others about LRAP (good, support the program, because Sacramento won't).

And, I'm going to the Unveiling Party.

See y'all in the next episode. It's been a blast.