Best Practices

Got the first draft of our Terms of Service for Udorse back from Big Law Firm - they're ... aggressive. My friends at the Berkman Center would flip their shit. Time for a redraft...

Trapped in Amber

Important Note: Recent decisions, like Heller discussed below, are NOT tested on the bar exam.

Trevor, stop reading the news.

Individual Gun Rights

It amazes me how far to the right I've moved on gun control in the last few years, but the recent decision in Heller strikes me as entirely reasonable. Scalia is way less entertaining than usual when he's being reasonable, but one takes what one can get.

Honors and Signaling

What's that? The DOJ under Bush systematically excluded left-of-center applicants from the DOJ honors program? The Federalist Society is a vehicle for affirmative action for conservatives? This is me not surprised.

Most Original Blawg Post Ever

Studying for the bar? Sucks.

Totally sucks.

Sunstein to HLS

Cass Sunstein, who taught me administrative law when he was visiting last year, has accepted a permanent position at Harvard.

I've already written how despite my early skepticism, everyone should take administrative law. Still, a fair warning: I know at least two classmates who went straight to the "recommended prerequisites" box on the course evaluations forms for Sunstein's class and wrote in "Admin."

The Right to Exclude

Having liberals sabotage the Michigan Republican primary by voting Romney sounds like a lot of fun, but it's also the kind of thing that makes open primaries unconstitutional.

Which is kinda too bad.

Elitism

I love it when judges slip for a minute and betray some great disdain for juries. Even better when it's tinged with envy for their counterparts overseas unencumbered by the unwashed masses:

It is a quiddity of our law that a well and thoroughly reasoned decision reached by a highly skilled and scientifically informed justice of the Patent Court, Chancery Division, in the High Court of Justice of Great Britain after four weeks of trial must be ignored and essentially the same issues with the same evidence must now be retried by American jurors with no background in science or patents, whose average formal education will be no more than high school.

Cuno Inc. v. Pall Corporation, 729 F.Supp. 234 (E.D.N.Y. 1989).

Priorities

Via ATL, this motion to continue at trial on the grounds that it conflicts with the LSU-OSU game is pretty awesome.

The Death of the 3L Paper

This is the best news in a long time:

All J.D. students are required to produce either

(1) a substantial research paper of publishable or otherwise professional quality, to be written in close consultation with a faculty advisor, in conjunction with a seminar or workshop (for an addition of 1, 2, or 3 credits), or through independent study or the January Term writing program (for 2 or 3 credits); a 3-Credit project should have the scope and ambition commensurate with a 3-credit course, and students electing 3 credits should make sure that this would not cause them to exceed the 12-credit limit on writing credits nor interfere with their plans to pursue cross-registered and clinical courses, the credits for which, along with writing credits, count toward the 16 non-law-school-classroom credits students may take for degree credit.

or

(2) two pieces of writing of a different sort from those encompassed in (1), which could include any of the following, provided that at least one of the pieces was written under the supervision of a faculty member or clinical instructor:

a. lawyers work product: this category would include substantial writing in a clinic, upper-level moot court briefs, or the equivalent, as certified by the supervisor of the relevant program, but not written work from a summer job or paid work;

b. law school course and seminar papers: substantial writing as part of a course or seminar, including the standard series of reaction papers, amounting to no less than 15 pages;

c. law journal writing: including notes, book reviews, descriptions of developments in the law, and the like (totaling no less than 10 publishable pages);

d. nontraditional writing produced under faculty supervision: this might include interactive web-based material, surveys of students or practitioners with analysis, case study materials appropriate for classroom use, or other law-related writing outside of the forms mentioned above.

Everyone winds up writing plenty of long papers for various classes and activities, and tacking another extra long paper requirement onto the tail end of 3L year was just gratuitous, especially for those of us who have no interest in pursuing an academic career. I was going to have to come up with some 30-40 page research paper and bash my brains out trying to write it over the course of next semester.

Now, I don't have to.

Hooray!

Take Admin

It was rough at the time and seemed hopelessly obscure, but one short semester later I can already tell you that taking Administrative Law was one best things I have done to deepen my understanding of how tings actually work. Insights form Admin have helped me in all of my classes this semester, including the venture capital class I took at the business school.

I normally hate on the standard curriculum, which most people seem to take unthinkingly, but please forgive this momentary lapse into earnestness: take Admin.

Finals

Suck.

But you know this.

Blogger Ethics

MPRE results are out. According to the scaled score, I am nearly twice as ethical as required by the state of California.

Copyright Reform

From xkcd.

What I Wish I Had Know About Law School At The Start Of My 1L Year

A new year is starting for a new crop of 1Ls, and the internet is bursting with advice for them. I admit I consumed this stuff voraciously, stuffing my cheeks with tips, tricks, and how-tos. But I really had no idea what any of it meant in context, and in place of all the earnest advice, what would have really helped me was a brief bird's-eye view of how law school works. So here it is.

As treated in law school, the legal process is a function that maps fact patterns to verdicts. The way that law works is that stuff happens, making a kind of a short story. The court hears this story (through the lawyers) and then returns a decision. You win, you lose. If you imagine stories as little notes spread across a tabletop, the "law" is a line drawn on that surface separating stories with one outcome (the contract is valid, the defendant is guilty, whatever) from the others. The whole project of law school is figuring out where that line is.

What complicates things is that written laws generally just say "the line should be hereabouts," because it's impossible to think up and account for every possible story ahead of time. And on top of that people have all sorts of reasons for saying the line is somewhere when it isn't really. So then only way to know where it actually lies is to check individual points. So instead of traditional textbooks that just tell you the Rules of Physics, law schools use casebooks. A casebook is just a big book of cases, each one an important data point in figuring out where the line is. Law schools could just tell you where the lines are, because that's what professors spend all day thinking and writing about, but the idea is that out in the real world you won't have professors to tell you the answers, and you'll have to figure out where the line is by yourself, by examining cases. So they figure you should learn to do that now. Don't worry, it only takes a few weeks.

Every case in the casebook is a data point to help you figure out where the line is. Importantly, every case has been put in there on purpose to illustrate some part of how the line curves. The trick to law school is extracting the one important thing that a case stands for from all the excess information.

For example, you are almost certain to read a case (in Contracts) about a botched skin graft that causes the patient to grow hair on the palm of his hand. Professors love the wild details, and they may help you remember, but they're irrelevant. The Hairy Hand case (I don't even remember the real name today) stands for the proposition: "If you break a contract, you owe the other side the money equal to the difference between the value of what you promised them and the value of what you gave them." This is the usual way to assess damages in contracts suits, as opposed to other potential measures like "You have to give them the full value of what was promised, ignoring the value of what you already gave them" or "You don't have to give them anything! Ha ha!" The case is full of wild turns about shady plastic surgeons and how you put a dollar value on having a hairy hand or a healthy one, but you don't really need to know all that. All you need to know is how to do the math.

When it's exam time, you apply that line-finding skill. Your average law school exam is what they call an issue-spotter. All that means is the professor writes a handful of short stories, and then asks you what arguments a court might have to decide, and which side of the line they're on. The best way to figure out exactly how to do well is to get old exams, take them under test conditions, and compare your results to the model answers. But that's no different from any other test.

Now a lot of the time the line is blurry, or there's not enough information to draw it precisely, because this shit is hard. We're mapping to legal outcomes from every possible range of human interaction. That's a lot of space to cover. But if you know the two closest points, even if they fall on opposite sides of the line, you'll do alright. Because it is hard and the people implementing it are only human, there's a lot of individual discretion at the margin.

That's the big picture. Everything else you can figure out plenty fast.

Gone Fishin'

There is a certain kind of summer associate project very popular with assigning partners. Partner can't think of any cases that stand for a given principle, but (s)he would really like there to be one. So (s)he sends you to look for it. It is of course, not there. Sometimes, if you are lucky, there are lots and lots of cases that say the exact opposite. But usually there's just nothing out there. You just keep searching, aimlessly, not knowing when to cut short your search, unproductive but scared that you're missing something crucial. This is the worst kind of assignment.

And then sometimes you find something. Sometimes you suddenly see that even though Partner's theory is completely crazy you know how to make it work. That is the best kind of assignment.

Yoko Ono Interviews Perez Hilton

Ken saw me watching Blogingheads.tv and only looked over my shoulder for a minute before declaring, "Any site that uses the word "diavlog" on the front page is dead to me."

But how could he pass up on the latest episode, featuring Ann Althouse and David Lat discussing blogging, bonuses, and AutoAdmit? It's so topical!

Bong Hits 4 Jesus

I was going to write a post about Morse v. Frederick, but then I saw that Eugene Volokh already said it.

But I still want to see a bunch of high schoolers make a "Legalize Marijuana for Private Consumption and Enjoy it Responsibly in Your Own Home" banner.

CM is right; this WSJ story is ridiculous: are law students emotional wrecks? Not about the emotional wrecks part, which I suppose is true enough, but the inference that that this is due to the environment of law school as opposed to the particular characteristics of law students.

Not to put too fine a point on it, but most law students I know (myself included!) would not survive med school, let alone find satisfaction there. Law school may not be easy, but compared to med school, it's a frigging cakewalk. Law students whine more because (1) we are way less tough on average and (2) many of us really don't want to be here.

Maybe some of my vestigial techie chauvinism is going to shine through here, but (1) should be pretty obvious. Most law students were humanities majors in college, and never learned what hard work really is. Law school is a shock to their delicate systems. Meanwhile, the pre-meds were crazy for ages. Actual medical school is still a step up in work, but they've been working hard for years, and they're ready for it.

(2) may not be such common knowledge, but it certainly should be to blog readers. A lot of people kind of drift into law school because they aren't sure what to do with themselves and they're kinda smart and do well on the LSAT. These people don't really want to practice law, and the strong focus on actually learning legal doctrine in law school, while it shouldn't really have been surprising, makes them understandably unhappy. Nobody has any illusions about how an MD is a "versatile degree" that "opens all kinds of doors," so practically everybody at med school actually wants to be a doctor. They've probably wanted it for a really long time, because you'd kind of have to in order to put up with all that pre-med craziness alluded to above. Now it may be so awful (you don't see me doing it!) that along the way some of them decide they don't want to be doctors after all, but I'd bet dollars to donuts that's still a smaller percentage than the number who never wanted to be lawyers when they got here.

I could go on too, about why we should expect med school to be objectively harder than law, but I have to go to work.

Against it Before He Was For It

Robert Bork is pursuing a $1M slip-and-fall case (plus punitive damages!) against the Yale Club of New York City. Which is a bit striking because in 2002 he published an article in our own JLPP arguing that tort reform was more important than originalism:

State tort law today is different in kind from the state tort law known to the generation of the Framers. The present tort system poses dangers to interstate commerce not unlike those faced under the Articles of Confederation. Even if Congress would not, in 1789, have had the power to displace state tort law, the nature of the problem has changed so dramatically as to bring the problem within the scope of the power granted to Congress. Accordingly, proposals, such as placing limits or caps on punitive damages, or eliminating joint or strict liability, which may once have been clearly understood as beyond Congress's power, may now be constitutionally appropriate.

This sort of thing is why I find it extremely hard to take any kind of professed "judicial philosophy" very seriously. They always seem to line up suspiciously conveniently with the judicial philosopher's policy preferences. This is, at worst, an especially clear case.

ACSBlog has the scoop.