Will Baude fails to name names, thus ensuring some other poor fellow will get a "not very good Manhattan."
Will Baude fails to name names, thus ensuring some other poor fellow will get a "not very good Manhattan."
I'm torn. On the one hand, I'd probably rather boycott someone for driving while drunk (which can, after all, kill someone) than for their words, however hateful, spoken while inebriated. It's a sign of the moral compass of HuffPo that Ari Emanuel will give a pass for substance abuse, but take to heart some drunken rambling. Don't get me wrong, Gibson's accused of saying some vicious things, and that's bad (and possibly deserving of ostracism). But one would think that carelessness that can lead to vehicular homicide ranks further up in the heirarchy of sins. It seems these days it's worse to belt out a few ethnic slurs than to belt back a few G&Ts before speeding back home in a Lexus sedan.
On the other hand, looking at Gibson's entry on IMDB, I've not seen any of the top twelve films listed under his name either as an actor or a producer. (Well, I saw part of Signs on an airplane, but that barely counts.) I've not seen anything he's directed since Braveheart. So it seems like I've pre-emptively approved Mr. Emanuel's boycott.
Damn this man! Now I must either accede to his demands to shun Mr. Gibson or go see the silly savagery of Apocalypto. A miserable choice indeed.
The last entry was composed in a Borders in downtown DC. While I was writing, a rather scuzzy gentleman took a table a few feet away fro me and proceeded to openly peruse a copy of Penthouse International Pets, holding it up at chest height and at one point seemingly pulling out a centerfold. The elderly couple behind him seemed to be alternately aghast and compelled to look over his shoulder.
As for me, I'm just pondering: was that fellow just a particularly shameless pervert, or was he cunningly trying to sow chaos and subvert social expectations.
And now it's over. The fact that a whole weekend has passed without me chattering about he bar exam probably says something about my reaction to the disaster. Denial remains a great coping mechanism. After I've cooled down a bit, I've summoned some guarded optimism, but the happy thoughts get no further than this: "OK, Tony, you felt that was a train wreck, but no one else has seemed much happier. Thank God for scaled exams."
I concur with the general concensus among bar exam bloggers. I found the New York day to be far less difficult than I had feared, and then was pummelled by an MBE that bore only a passing resemblance to anything I'd been given by BarBri. (Indeed, that course was almost entirely useless, but more on that later.) When my face finally felt the harsh sunlight outside the Javits Center that awful Wednesday afternoon, it did nothing to alleviate my twofold self-doubt. On the one hand, I had guessed on at least half of the multiple choice. On the other, I felt no confidence in the answers I'd chosen outright.
I did get a free pencil courtesy of Anonymous Lawyer. It's a great marketing gimmick, although I think it suffered a bit from mixed branding. The marketing staffers passing out pencils to nervous bar takers were cheerful, personable and altogether worthwhile human beings, easily identified by their Anonymous Lawyer t-shirts. Surely they should have been besuited middle-aged men handing out not only pencils but the admonishment that this test was the ultimate test of our self worth, no?
On second thought, the headline "JAVITS CENTER LAWYERS TO BE 'GO POSTAL'; 10 DEAD" is probably not the best publicity the book could get, and there were a lot of tense folks last Tuesday.
In any event, it's over. Before I leave the topic of the exam, though, I'd like to thank my family, my friends (and in particular my ever-patient girlfriend), and my fellow exam-takers. It's a lot easier to charge blindly into this ridiculous exam process knowing that such great folks are behind me.
NOTE: I am moblogging at the moment, and linking outside content consumes a lot of time. (There is no easy cut and paste function.) A lot of links to other bar exam bloggers will be added this afternoon. UPDATE: Now added.
Thanks to Randy and his new PhoneSharpMT, this morning's entries will mostly be brought to you by the Motorola Q.
I'm tired, brain dead and blogging from a Windows Smartphone, so I don't know if this will get through, but half the exam is done. For the purposes of tomorrow, I may now forget everything I know about New York law.
To those starting tomorrow or continuing with this purgatorial task: good luck!
The utter of posting tomorrow will be brought to you by the letters B-E-E-R.
The quiet car of the 1PM Amtrack from DC to Penn Station looks like a BarBri study hall.
I wonder if we could have banded together to get a group discount on our tickets
So here's a story that's a little more personal than what I normally write at TYoH. It's been a rough few weeks, Wormwood, so I hope you won't hold the unwonted intimacy against me, and that the whole mess gives you a bit of a chuckle.
My to-do list has included for the last two weeks an item labelled "Blog about why I'm not freaking out about the bar exam." The entry right beneath it, "Get a haircut," has been equally neglected.
The first admonition springs from a simple truth: since the beginning of July I've felt as if I've not been sufficiently concerned about this "Bar Exam" thing. I'm not wholly convinced that lawyer licensing exists for the service of clients or the public. I consider this whole thing a bit of a racket, and thus the bar exam (pace Anonymous Lawyer) is not something I see as a test of my value as a human being. Failure to pay a protection racket would have a similar blow to my self esteem: sure, I might not be able to do business without ponying up, but it doesn't affect the fact that my customer service is pretty damn good. Likewise, so far as I know my clerkship isn't riding on passage of the bar exam, so failure would just mean a lot more time to study while actually learning a fair amount of real law. Finally, I've done a reasonable if not massive amount of work, and the test remains a pass/fail affair. Intellectually, I know passing is not certain, but certainly within the realm of possibility.
So of course, I thought I was immune from the silliness of bar panic. Which is where the second item on the to do list comes in.
It's been warm here in Virginia, and after a short stroll outside I realized that a month and a half has left my locks full, flowing and quite unseasonably warm. Knowing that I didn't have time to get a haircut (or knowledge of a good barber), I figured that the next best thing would be to attack my head with my trimmers, returning my skull to about this condition. Full of purpose, I grabbed new AA batteries, some plastic bags to line the tub, and my trimmer, pausing only to ask my girlfriend to give me a hand.
And then it set in: bar madness. After all, I'd been studying for two months with all this hair. I'm used to it. When I've not known whether leave and mail service requires an answer within twenty or thirty days, I've run my hand over my forehead, fingers leaving little furrows in my shaggy mane. Shaking my head in confusion over whether a particular power of appointment designated in a trust violated the rules against perpetuities, those locks have shook with me.
It struck me that perhaps these motions had some kind of mnemonic value: that when the pressure was on in the Javits Convention Center, I'd reach up to my forehead and sure enough my fingers would pry the answers from my forelocks. Or perhaps during these sultry summer days, this surfeit of black letter law has overflowed from brain to skull, seeped from skin to follicle. By slicing through these hairs, I'd be eliminating hours of reading, or hundreds of wrong answers on StudySmart...
"Yeah. Trim your hair before the bar exam, and YOU'LL FAIL. It'll be Samson and Delilah all over again."
That was my girlfriend. Apparently I'd been talking to myself. The worst bit, though, was that at that particular moment, her idea didn't seem all that mad. 
Just a few more days, dear readers, and it is all over. But until then, the world is viewed through a very distant mirror. And that mirror has been stolen from the funhouse.
As of this writing, I've yet to cut my hair.
: Although I probably need not be explicit in pointing this out to you, dear Wormwood, her "idea" was nothing but sarcasm. A few seconds passed, however, between the hearing of the words and the recognition of that particular tone.
It's worth taking a moment to wander over to Prof. Kerr's latest post on the Volokh Conspiracy, as it shows just how crazy we bar exam folks have become. First Prof. Kopel proposed that the UN was an "accomplice" in the kidnapping of Israeli soldiers. Prof. Kerr's rebuttal focused on the fact that the U.N. peacekeepers at issue didn't seem to have the required mental state for accomplice liability. And within a few hours, at least three bar takers had started in-depth review of whether the facts constituted accomplice liability, "accessory after the fact" liability, liability in Washington for official misconduct, or (my addition) whether the actions would rise to the level of criminal facilitation, which is a particular N.Y. crime not found on the multistate.
Funny quote from Prof. Kerr in the comments:
A cover up after the fact in order to hide your negligence does not make you an "accessory after the fact." . . . [S]ince you have the bar exam in a few days, note that the definition of "abet" is "to approve, urge, or encourage." That is, not just to objectively help, but to *intentionally* help. So feel free to say what you want on the Washington state bar exam, but if you pick David Kopel's answer you will just get that one wrong."
Will Baude and Jason Czarnezki hint at one reason I was so happy to hear of the BarBri class action lawsuit. Besides truly despising the defendants, the lawsuit promised to make an interesting wrinkle in the class action settlement debate. As Will points out, there's a truly massive agency problem inherent in letting lawyers "represent" thousands of claims, and yet be paid in cash themselves while their "clients" get some trivial coupon. BarBri is different. Most people who subscribe to a BarBri course take it precisely once, and thus a coupon for future BarBri courses would be somewhat undesirable. So maybe, just maybe this case might settle for cold, hard cash? That would be fun.
Sadly, the West Publishing Corporation (owner of BarBri) has a diifferent coin o' the realm. As their never-ending stream of emails ceaselessly reminds me, after I (knock on wood) pass the bar, West will quite happily provide me with Continuing Legal Education courses from now until the fruits of my legal education wind up in probate. If no one has predicted this already, let me be the first to examine the messy entrails of this particularly grimy fowl and augur: when this one settles, we all get free CLE.
As my last entry indicated, I'm spending my days--often 9AM to 11PM--in a Barnes and Noble/Starbucks coffee bar in northwest Virginia. Every day, there's at least six or seven of us here, easily identifiable by the BarBri books.
Starbucks is always coming up with new speciality drinks. They ought to come out with something specifically for us, since I'd imagine we descend upon them predictably at this time every year. Maybe a triple-shot mocha with extra caffiene. And some vodka mixed in, under the table. And maybe prozac.
In related news, Blonde Justice notes that Hallmark's missing a trick by not providing "Good Luck on the Bar" cards.
. . . in the Geek Hierarchy?
Take a moment away from your bar review to ponder a wiki full of drink recipes based entirely on webcomics.
Come Thursday, I want one of these.
(Right now I want one of these, but they're not served at Barnes & Noble's co-branded Starbucks.)
Prof. Kerr takes another swing at Dahlia Lithwick in her latest column, which she titles "Minority Report" in reference to the movie (and possibly short story) of the same name. Her hypothesis is that the recent arrests of two terror networks in their planning stages brings us "ever closer to criminalizing bad thoughts."
Prof. Kerr matches fact to Lithwick's musings and concludes that she's worried about an "expansion" of powers no more novel than bog-standard conspiracy. He's certainly right, but she's also misinterpreted the movie on which she bases her comparison.
While there is a conspiracy in Minority Report, if the movie represents any fundamental change in the law (besides the lack of a requirement of trial by jury), it's a change in the standards for attempt, not conspiracy. As my fellow bar exam sufferers know, in most jurisdictions conspiracy requires an agreement, an intent to agree and an overt action in pursuance of the conspiracy. On the other hand, attempt requires an intent to commit the crime and a substantial step beyond mere preparation in furtherance thereof. (These are quick definitions from my notes suitable for bar prep, of course, and not detailed outlines.)
According to Lithwick, the world of Minority Report is one in which "people are arrested for crimes they hope to commit in the future." But Department Chief Anderton (Cruise) runs from "justice" with no idea who his intended victim is or why he would want to kill him. In short, he's being "prosecuted" for attempt despite the lack not only of a substantial step, but without even intent. His accusers, the "Precogs," are so named because they see the future, not because they read minds. In the very strictest sense, they're not "thought police."
Also, unless I'm failing to remember the movie correctly, Anderton never really commits a conspiracy. Those who help him might rise to the level of solicitation or accomplices (Iris, for instance, encourages him to break into his old office), but they're not conspirators: they don't agree to a criminal objective. To the extent that there is a "conspiracy" in the non-legal sense, it's on the part of the fellow who sets up Anderton, and I don't recall him having much in the way of help.
This springs to mind not (merely) through an excess of geekery, but also because it's relevant for the bar exam. The substantial step analysis for attempt is much more demanding than the overt action of conspiracy, and the two crimes, while both inchoate, require separate consideration. Attempt requires the intent to commit the crime, while conspiracy requires the much broader intent to agree. Lithwick can make this error because she's already passed the exam, but those of us yet to take it can learn from the mistake.
Today I received my legal notice of the class action suit against BarBri and Kaplan for violation of the anti-trust laws. I checked: it conforms with what little they taught us about class actions.
Couldn't happen to nicer people. Unlike the Netflix settlement, I don't think I'll be writing in to complain about fees received by the plaintiff's attorneys.
Tired of studying for the bar? Take a few minutes out and watch George Bush take on U2.
Ain't technology grand?
Yesterday was the last of the BarBri classes.
Barbri now joins the collection of things that "all law students do" that in hindsight I consider to be a mistake. For a couple of thousand dollars, I received seven books from which I've done all my studying, a "PaceProgram" schedule of repetitive tasks and a little purple membership card. The card in turn provided me with access to hours of taped lectures, the vast majority of which were less informative than simply reading the handouts.
That wouldn't be so bad if it weren't for the penchant of some Barbri lecturers to mistake their shiny blue podium for the stage of the Dave Chappelle show. Don't get me wrong, my dear Wormwood: the lecture by Prof. Torts caused much of the audience to split their sides with laughter. But he also turned four hours of material into three days of presentation. I would have been better off if Barbri provided me with a drier lecturer and a $200 rebate so that I could use the spare time and money at the Improv. On the other hand, Prof. Torts stood out as the best of a bad bunch: many of the other Jack Black wannabees succeeded in producing only groans. (A particular mental scar remains from the rendition of "It Wasn't Me" to illustrate a point of Property.) Out of the whole course, precisely one joke has stuck with me as a mnemonic. 
I've loathed the course. I'll freely admit I've skipped quite a few classes, gathering notes from prior years or other students and sitting at home calmly reading through them rather than sweating in a classroom. At least according to their mock MBE, it hasn't hurt me much. In the meantime, I've been following my own course of study for the last few months, having transformed their PaceProgram into a project plan, used the good ol' project management triage to figure out what was necessary, trimmed the fat and--more or less--stuck to it.
In any event, maybe I'll fail the bar because I've failed to follow BarBri's prescriptions. We'll have to see, dear Wormwood. I do know, however, that it didn't have to be so painful to get to where I am now.
: In evidence, a
prior present recollection can be refreshed by anything, not just a writing. The joke involved refreshing Homer Simpson's memory while he was on the stand by giving him a beer. (Update: I guess the mnemonic didn't help all that much.)
The final countdown has now commenced, and as you'll notice the Exam Stress Indicator has bumped up a notch. One bit of preparation that I haven't managed yet: finding a place to stay.
If one of my readers happens to know of crash space that's going begging on the nights of July 24th, 25th and 26th, I'd be very grateful to know about it. It's amazing what hotels in the area are charging. (Update: Forgot to say, I'm taking the exam in New York City, not Albany.)
In conjunction with my last few musings about gay marriage, I'd like to point my readers towards one of the more intriguing articles covering its intersection with tax law.
As I said yesterday, neither the ruling of the New York Court of Appeals nor the dissent in Hernandez provided much surprise to watchers of the debate. However, Chief Judge Kaye's dissent did serve to strengthen one of my convictions as to the most profitable course that gay-marriage advocates could take: ditch "equality."
Equality, after all, is not much more than a gossamer word. Demands for "equality" (or "equal protection") mean nothing in and of themselves. Rather, they gain meaning only after one has defined the scope of the equality to be protected. Hence, Judge Kaye can that New York treats a woman who wishes to marry a woman differently from one who wishes to marry a man, and thus that woman is treated unequally. Judge Smith can counter that the same woman is treated no differently from any other woman or any other man: they are both limited to marrying members of the opposite sex.
I would imagine that to many readers, either Judge Kaye's reasoning or Judge Smith's seems self-evidently obvious. Some day, perhaps, after sufficient search through precedent or a laborious effort towards enlightenment, some Solon might conclude that in the balance some platonic ideal of "equality" sides with one or the other Judge. But such arguments leave few tools with which the advocate on Side B can attempt to convince his opposite on Side A. The degree to which the opinions and dissents in gay marriage cases--either Hernandez or Goodridge--tend to talk past each other when it comes to what is "equal" rather illustrate the difficulty.
It seems to me that a better avenue of argument is to abandon the fetish for equality. Certainly, it's good to treat people equally, equality is a value, and all that. But the concentration on equality leads gay marriage proponents to two particular strategic potholes. First, equality has a moral dimension: it is tough to make a demand for equality that does not at least implicitly accuse ones opponents of bigotry. Now, perhaps one believes that no one can oppose gay marriage without being a bigot. Yet popular referenda are continually passing opposed to same-sex marriages, which suggests that accusing the opposition of bigotry is a quick way to turn off voters rather than woo them.
The second problem with focusing on equality--or rather its close sibling, equal protection--comes from the test most likely to be invoked. Equality is either a "gender" issue (getting "intermediate scrutiny") or subject to rational basis review. This in turn requires proponents to use arguments, of which Chief Judge Kaye's is only the latest, that there is no rational way one can support heterosexual-only marriage. The logical corollary of this, of course, is that all those who do oppose gay marriage are irrational. See above for why this might not be too wise as a political matter.
Further, I simply cannot fathom the idea that opposition to gay marriage is utterly irrational. The institution is, after all, relatively novel, especially as opposed to polygamy and its deeply-rooted history. As Judge Smith said yesterday, "A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted." And if one does not reach that conclusion, it staggers the imagination that gay marriage would not be more common.
These two "potholes," as I've called them, tend to blind gay marriage proponents to what I'd consider a more profitable avenue of attack: that even if a choice to ban gay marriage is rational, it's nonetheless simply a bad idea. After all, rational people are not perfect people, and they are perfectly capable of holding views that are mistaken.
That's one reason that even during my bar review course, I've been continuing my research into how to use the Defense of Marriage Act to create a tax shelter for gay couples. . While I was once a proponent of DOMA as a bulwark against judicial activism, I'm becoming more and more convinced that as a jurisprudential matter it's a mistake. The federal code, after all, recognizes marriage as much to prevent cooperative behavior against the government as it does to "reward" committed couples who raise families. DOMA may in some measure check activist judges, but it does so at the cost of making our general law inconsistent, and that may very well be too high a cost.
Notably, arguments that heterosexual-only marriage is a bad idea are superficially awfully similar to arguments about equality. Take the litany of unfairness catalogued by Chief Judge Kaye, for instance:
Same-sex families are, among other things, denied equal treatment with respect to intestacy, inheritance, tenancy by the entirety, taxes, insurance, health benefits, medical decisionmaking, workers' compensation, the right to sue for wrongful death and spousal privilege.
And even arguments that don't rely on the double-edged nature of legal responsibilities can be cast without a "fairness" consideration. Yes, one can say that it's unfair that a homosexual who dies intestate (or with a somehow invalid will) may not find his estate passing to his long-committed life partner. But even if it were somehow equal, it would still conflict with another deeply-held principle, that a decedent's effects should pass to those they would naturally choose.
The distinction remains subtle but important. It is nearly impossible to talk of "rights" without saying to one's opponents, "You must recognize this: to do so is at the very least irrational, and probably immoral." Whereas to talk of outcomes softens the tone: "You should recognize this, because failing to do so has painful and even perverse effects." As arguments go, the latter is far more likely to win votes.
: A more pressing reason, of course, is that my free Lexis access runs out at the end of the summer.
: In saying that DOMA is a mistake as a jurisprudential matter, I mean that the only way I can think of to reconcile the obvious purposes of much of the tax code with DOMA requires one to believe that either the tax code or DOMA don't mean what they clearly do. Certain tools beloved of the more modern constitutional scholars might be adopted to square this circle--for instance, consider the Code to be an "evolving" text--but I consider that jurisprudentially undesirable.
: I'm sure I could somehow work tenancy in the entirety into this. But it's currently a big headache for me on the bar exam: I keep getting it wrong.
The New York Court of Appeals (equivalent of the Supreme Court for New York) has now decided Hernandez v. Robles in favor of the defendants. Hence,the New York constitution doesn't require same-sex marriage. The decision was a narrow 4-2, with Judge Smith writing the opinion of the court, Judge Graffeo penning a concurrence and Chief Judge Kaye filing a dissent that at times seems almost Scaliesque in its vehemence.
There's little in the way of new arguments. Anyone who's been following the debate at all over the last few years will find the back-and-forth familiar, almost comforting. And yet the final comments of the key opinions stand out. In dissent, Chief Judge Kaye closes with:
I am confident that future generations will look back on today's decision as an unfortunate misstep.
We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives.
UPDATE: In case anyone was confused by my writing that this was a 3-2 opinion, I apologize for the error. I somehow combined Judges G. B. Smith and R. S. Smith into one SuperJudge™.
Also, the Supreme Court of Georgia today reinstated the ban on gay marriage in the Georgia constitution. (Hat tip How Appealing.)