Plot Thickens In Iran

Yesterday, the Iranian government issued its staunchest threat yet toward the people’s rebellion in response to the election results and has concurrently threatened to arrest Mir Hussein Moussavi, the reformist opposition candidate. The “Revolutionary Guards warned protesters Monday that they would face a ‘revolutionary confrontation’ if they returned to the streets to challenge the presidential election results in defiance of the country’s leadership.” Unsurprisingly, as the New York Times reports, the threat has diluted protest turnouts.

Within hours of the warning, several hundred protesters—far fewer than in mass rallies last week—gathered in central Tehran, and police used tear gas and fired into the air to disperse them, news agencies reported.

Curiously however, for the first time in days, the Iranian election-monitoring agency has formerly acknowledged that more than 3 million of the 40 million ballots cast may have been plagued with irregularities. With the world watching, the onus is on the Iranian government to ensure that every vote is counted correctly. But the world is growing steadily impatient.

Food for Thought...

I wonder if the ABA would help push a type of debt-reduction similar to this one... after all, it is its fault that (A) we have degree inflation and (B) we have a completely useless third-year of law school we must attend (among other (C) through (ZZZZZZZ)s)...

How to Restart Your Career in a Down Economy

From time to time, we receive e-mails notifying us of upcoming events. We always appreciate the information and are more than happy to pass along information that may be useful to our readers.

The Association of the Bar of the City of New York has informed of us of one event that sounds particularly intriguing. It, along with Vault.com, will host a day long program called “Getting Back in the Game: How to Restart Your Career in a Down Economy.” The Association explains that this program is “designed to assist job-seeking attorneys in learning how best to market themselves whether they are looking to go to a firm, start their own practice or are considering an alternative legal career.” We understand things aren't pretty our there in the legal world and commend the New York City Bar and Vault.com for putting together what looks to be a stellar event.

Speakers will include Patricia Hynes (President of the New York City Bar), Brian Dalton (Senior Law Editor of Vault.com), David Lat (founding editor of Above The Law), T.J. Duane (Principal of Lateral Link), a hiring partner and recruiting director from major international law firms, and many other notable members of the legal community.

When: Tuesday, June 16, 2009, 9:30 a.m. to 4:30 p.m.

Where: New York City Bar Association, 42 West 44th Street

Check out the Association's website for further information as registration (along with a registration fee) is required.

Is it "Wrong" for Judges to Follow Precedent? (Revisited)

About a month ago, I shared Goutam Jois' interesting article, Stare Decisis is Cognitive Error, with our readers. Some of our commenters took issue with the practical significance of Goutam's piece, and--given the interesting nature of the discussion--I wanted to share his response with our readers:

Sorry for the delay in responding. The article -- which is still in draft and will be published this fall -- could perhaps be clearer about what judges should do "instead" of following precedent. But the answer is not as elusive as it seems. Circuit courts, for example, routinely see cases of first impression, over 100 a year by my quick estimate (Westlaw: ("first impression" /s "this court" "this circuit" & da(2008)) yields 127 results) The standard tools of judicial decision-making that come up there would apply.

More broadly, as I write in the article, the point is not that judges should never follow prior decisions. It is, however, that we should be critical when they do. I outline three ways this might be done in Part IV.C. Whichever option one finds most persuasive, the point is that (if you buy my basic point about cognitive bias) there should be some degree of shift in the presumption that prior decisions must in all cases control subsequent cases.

Generally, we test whether a case is sound by examining its legal reasoning. But if, as I argue, the process of reasoning is itself skewed, then we need to be sure that we are following those prior cases for the right reasons, and not just because doing so saves "the intolerable labor of thought."

I have to say, Goutam's defense of his piece is quite persuasive. First, academic articles are not--nor need they be--purely pragmatic. And the skeptical "solution" he prescribes makes a lot of sense in light of his findings. I'm curious to hear what others think.

Prop. 8 Rehearing Petition Filed

Per the docket sheet. It will almost certainly be denied, but anything's possible. Especially with an issue that has already created (somewhat) strange bedfellows in David Boies and Ted Olson.

Open Thread: Researching for Dummies

Okay, I admit it. I didn't go to any of the "here's how you save money when researching on the client's dime" sessions last Spring. I simply didn't have the time. And, if not for the free Westlaw/Lexis access the representatives periodically dole out to working law students, I'd probably be regretting that decision a lot.

Put simply, researching on the online databases is expensive. As a law student with free access, I've often lost sight of this and not worked to develop efficient research habits. While I'm trying my very best now (and hopefully succeeding!), I think we can all use a thread to discuss helpful research habits.

I'll start by sharing a few of my own:

1) Google first! Obviously, Google's not the ideal repository for in-depth legal research, but you can find an awful lot of good information on Google that saves you the time you need to gain a threshold understanding of an issue (i.e. figure out what it is you're researching).

2) Library second! Last summer, a partner called me into his office and gave me a lengthy research assignment that didn't seem Westlaw/Lexis-friendly. I asked him how he'd suggest I get started, and he advised me to consult the headnotes in the case reporters. At that point, I'd never actually seen one which seems crazy in retrospect. I think the accessibility of internet documents makes us averse to non-online avenues of tracking down information, but it's helpful to make full use of these resources. For one, they're free (assuming they're in the library already). More importantly, they often lead to an array of other research ideas.

3) Think first, research later! Try to figure out what you want to find before you actually sign on to find it. Whether you're using a transactional or hourly service, it can only help to have a plan so you can cut down on time thinking while "on the clock" or "in searches."

4) Relax. A friend of mine recently got a fifty-state survey assignment (those who've done these know how time-intensive they can be). When my friend explained to the assigning partner that the "research would be costly" the partner told him to "not worry about it and just get the job done." This is good advice. Ultimately, it's good to save money where possible but clients understand that good research--like anything us law students/lawyers can provide--comes at a cost. And, within bounds of reasonableness, they'll be willing (maybe even happy) to pay.

With that, I turn the floor over to our (hopefully still present) faithful.

In Ben & Tim We Trust? Nightmare #2

Never have I read a wire-report that has more inadvertently used a proper verb to describe the (ongoing and soon to worsen) economic mess that is Federal Economic Policy. Here, the word of choice is "divine." The entire paragraph that caught my fancy reads:

"With officials still grappling to divine the factors steepening the yield curve, a speedy decision on whether to ramp up the Treasury debt purchase program or the related plan to snap up mortgage-related debt seems unlikely."

Divine, as in divination...as in the prophetic method used by the Roman priests to tell the Caesars what the upcoming warring season would bring.

Here's a dictionary definition (from Webster's):

div·i·na·tion

Pronunciation:

\ˌdi-və-ˈnā-shən\

Function:

noun

Etymology:

Middle English divinacioun, from Latin divination-, divinatio, from divinare

Date:

14th century

1: the art or practice that seeks to foresee or foretell future events or discover hidden knowledge usually by the interpretation of omens or by the aid of supernatural powers

2: unusual insight : intuitive perception

Things are so economically bad in this country that our Ivy-trained economists are no more useful at telling us what is going on than the Horoscopes.

Sweet dreams are made of these...

Nightmare of the Day #1

People who know your boy Ol' Fred know that he has been a bit of a Roubini in his outlook. I've been saying "the Inflation is a-coming" for a while-- any Econ major who DIDN'T go get his degree from an Ivy would tell you that keeping interest rates below 3% for months at a time eventually results in monetary inflation.

Well, ladies & gents, without much further ado, I bring you what I term "The Scariest Article In The World Today". While I don't agree with the final argument (that we will soon be seeing $100 Trillion bills), I do embrace the qualitative end-result.

My Question to you, dear BBLers, goes like this:

(1) Assume you are the average law graduate in 2010 with a mixed debt from undergrad and law school of approximately $110k (80k federal, fixed; 30k private, variable). Assume, also that the Fed has increased target rates to a reasonable 4% (so, given the historical spread, private lenders are going for between 6-7.5%). Your fed loans are capped at 6.8% per the Stafford agreement; your private loans are all over the place (some are at 2%, some are at 6% depending on when you originated them).

What steps, if any, can you initially take to (a) cut your interest rates; and (b) consolidate your loans into "one simple monthly payment."? I guess my question is-- can you go to Bank XYZ and say "I'm 110k in debt at a weighted average of about 6% (regardless of fixed v. variable). If you lend me 110k to pay it all back right now, I'll agree to pay you back at 6% fixed for a term of 10 years"? If so, what steps need to be taken; if not, why not?*

* I realize that there is a potential for transaction costs needing to be incurred. Notwithstanding that problem, I'm wondering what kind of pro-active solutions law students can take to stay ahead of a potential sky-rocketing interest rate in the near term?

SSM Is G-O-N-E In CAL.

I know that this is a bit delayed, but, since all the members of BBL are gainfully employed (or so I assume), we were unable to post until now. For those unaware, the California Supremes upheld Proposition 8, and therefore, declared that same-sex marriages are no longer legal in California (though, those 18000 marriages performed before today will be unaffected). For previous BBL commentary on Prop. 8 click here, here, and here.

The opinion is here. It's a 185-page doozy, so I'm not reading it until Saturday. One of my colleagues will probably be along shortly to analyze it. As for Fred, he's gots ta get some dinner and watch some Rescue Me.

How Do I File a Lawsuit?

Those of you who've been with us from the start remember the early days when Blackbook Legal was, at its core, an effort to stir up law school reform. We were young and ambitious, and we took it all on: from the nature of legal education to the emphasis on 1L grades and, of course, publish or perish.

I must concede that, in the midst of a wonderful semester replete with fantastic professors, we've been a lot more complacent lately. But we haven't stopped noticing the problems of legal education and certainly won't stop pointing them out to all who are willing to listen.

Let me rehash one such problem we've discussed at length before with a personal anecdote: I'm a rising 3L, and I literally have no idea how to file a lawsuit. I know what I'd need to include in a complaint, I know how the defendant would try to defend against the suit on procedural grounds and--depending on the area of law--I may know whether the substance of a claim has merit or not.

But I don't know how to file the suit. I don't know where I'd go or what I'd do. Maybe it's common sense or something I could easily figure out on my own using the internet--I'm not sure. What I am sure about is that, when I was being a typical law student this weekend and thinking of the hypothetical lawsuit I'd file on behalf of my fiance (who, sadly, got a minor burn by a negligent hot dog vendor), I literally had no idea what I'd do if she came to me as a client. I think that's sad, and is a poor reflection on what we're learning.

Don't get me wrong--I love law school, have almost uniformly loved my professors and actually enjoy studying and thinking about this stuff (even constantly). And, quite honestly, I have learned quite a bit in my two years...I just wish I had a little more practical knowledge and experience to apply when I enter the workforce.

Does This Apply To Lawyers, Too?

I've returned! Today's article (click here) comes from the Chicago Tribune and comments on the effects layoffs have on people's earning power. To summarize (and with help from the Jack Nicholson-Helen Hunt romcom): your earning power before layoff is "As Good As It Gets." This got me to thinking-- what does this say about all the layoffs and salary slashes in the legal profession (particularly BigLaw & Associates)? What about the future of law schools and the graduation of some of us who are looking at about 6-figure debt before we even get our first doc review? And, to add another ingredient into the mix: what about the ramping up of 'legal outsourcing'? Could 2008-2009 be just the beginning to the "Great Levelling Off" of wages some economists have been predicting?

With a return like this, I should've stayed away...

Still Think Waterboarding Isn't Torture?

Conservative radio talk show host Eric “Mancow” Muller was convinced that waterboarding wasn't torture. In order to demonstrate this, he had himself waterboarded during a live broadcast. Things didn’t go quite as he planned. Mancow almost immediately gave the emergency signal to be let free and surprised many listeners by concluding that waterboarding is “absolutely torture.”

I never thought I'd be offering praise to man named Mancow, but I give the radio show host credit. He had the guts to subject himself to this awful procedure, and then, even more impressively, he was willing to admit that he was wrong. Perhaps all advocates of waterboarding should follow in Mancow's footsteps (and yes, I'm talking to you, former AGs Alberto Gonzales and Michael Mukasey). If it's not torture, then why not give it a try?

Here is a link to the YouTube video showing the entire experiment.

For more on this story, please visit The Volokh Conspiracy.

Proposition 8 Opinion Forthcoming

The California Supreme Court has provided notice of its forthcoming opinion in Strauss v. Horton, the case testing Proposition 8's legality. We will keep you updated as we learn more.


------

UPDATE: According to the Court's website, the opinion will be issued this coming Tuesday, May 26th.

Commencement Speakers Should be Failures in Life

Law students across the nation are graduating. Graduation is obviously a time for celebration, but with these harsh economic conditions, the mind of an impending law school graduate is unfortunately filled with worries. Commencement speakers are undoubtedly addressing these concerns and offering advice for how to succeed in this economic environment. TaxProf has a detailed list of law school commencement speakers, and the names include great successes such as Elena Kagan (the potential SCOTUS nominee), Rudy Giuliani, Eric Holder, Michael Mukasey, and Karl Rove (ok, maybe he shouldn’t be classified as a success). Surely, these speakers should be able to provide law school graduates with insightful advice about how to succeed both in the legal profession and in life outside the law (it exists…I think). Right?

Timothy Noah, of Slate Magazine, however, has some unconventional advice for schools when it comes to picking commencement speakers: “Don’t invite people who succeeded. Invite people who failed.” Noah explains that “people typically have a much easier time recounting, in often vivid detail, where they screwed up in life than they do explaining what they did right.” This is certainly a novel approach. I’m not so sure how this would go over with the higher ups, but I kind of like it. In fact, I’m going to begin openly campaigning for Rod Blagojevich as our commencement speaker.

The Long Arm of the LSAC...

A week ago, we interviewed LSAT Blog's Steve Schwartz on tips to beat the LSAT. Amongst other things, Steve strongly urged prospective law students to take LSAT prep tests in the course of their preparation. Doing so, it turns out, is increasingly difficult. As LSAT Blog reports, LSAC has "pulled the plug" on a number of prep tests making them more or less unavailable for eager students:

[According to] LSAC's website (click on "The Official LSAT PrepTests") . . . it [is] no longer selling PrepTests 39, 40, 41, and 42. This mean[s] that not only has LSAC failed to publish another book of 10 exams, forcing students to pay $8/exam, and not only is its shipping incredibly slow, but now it[ has] made PrepTests 39-42 difficult to obtain.

The story makes little sense at first blush--why, after all, would LSAC withhold a valuable commodity that prospective law students would willingly line up to pay top dollar for? You don't need a 180 LSAT to guess the answer: test preparation companies (some of whom have already been accused of monopolizing the LSAT market) are willing to pay more via hefty licensing fees. So, in essence, the juggernaut test preparation industry can access all 60 existing LSAT exams while regular students self-studying only have access to 49 past exams.

And, to make matters worse, it turns out the test preparation companies end up getting "more" for "less." They pay only $194.00 for the 60 exam set as compared to the $208.00 a self-study student would need to pay for the 49 exams that are generally accessible. Of course, the test preparation companies only get such a "deal" because they're buying in such large quantities; it's simple economics. But when the practical result is to disadvantage others who (perhaps) cannot afford to fork over $1500 for an LSAT course, maybe that's a problem?

Quoting Out of Context: A Reason for Not Allowing the Broadcasting of Oral Arguments

As I was reading an op-ed in the New York Times, I recalled an earlier post written by my colleague, Nima, which discussed whether television broadcasting of Supreme Court oral arguments should be allowed. The op-ed, written by Adam Cohen, argues that the Voting Rights Act may be in jeopardy because it “has run smack into the ‘federalism’ crusade of Court’s conservative bloc.” Cohen justifies his reasoning by quoting statements made by Justice Roberts and Justice Scalia during oral arguments. Unfortunately, Cohen takes the quotes out of context so that they fit his argument, and, in the process, misleads his readers.

For instance, Cohen paints a false picture of Justice Scalia’s reasoning:

Justice Scalia even asked, “Do you ever seriously expect Congress to vote against a re-extension of the Voting Rights Act?” Apparently, the fact that there is such overwhelming support for the act is an argument for why the Supreme Court should strike it down.

Now, anyone with a legal education should know that this is not Justice Scalia’s reasoning. Even if Justice Scalia was of the opinion that Congress did not have the power to reauthorize the Voting Rights Act, the popularity of the Act would not be a factor in his analysis. As a journalist with a Harvard Law degree, he obviously understands this (and, yes, Cohen is yet another Harvard Law alum not practicing law). Cohen uses the quotations only as a rhetorical device to bolster his (rather weak) argument.

Cohen’s article exemplifies the reason why oral arguments should not be broadcasted. Quoting out of context, like Cohen has done, causes the public to misconstrue the Court’s reasoning. Readers of Cohen’s article assume that Justice Scalia believes the Act should be struck down because there is “such overwhelming support.” This may inevitably lead to a loss of confidence in the Court.

If a respectable news source like the New York Times, and a journalist with a Harvard Law degree, can use these quotes out of context, just imagine what other, perhaps less respectable, sources may do (ahem, Fox News).

New York Court Extends State-Law Criminal Procedural Rights

As the New York Times reports, the New York Court of Appeals has held (in a 4-3 ruling) that police violate New York's constitution when they warrantlessly utilize GPS tracking devices to track motor vehicles. According to the Times:

The police had used the device to monitor the movements of the suspect, Scott C. Weaver, for more than two months. But the court ordered the evidence gathered from the device suppressed and ordered a new trial for Mr. Weaver.

This holding is interesting in light of United States v. Knotts, 460 U.S. 276 (1983). In that case, the Supreme Court held that the Fourth Amendment (under the United States Constitution) was not violated by the use of a "beeper" that revealed where contraband, driven around in public, was tracked. As the Knotts Court explained it, the use of the beeper did not constitute a search because "[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." Id. at 281.

At first blush, the New York decision seems to afford broader criminal procedural rights than the federal Fourth Amendment, under Knotts, would require. However, in addition to some other factual differences, GPS devices are more intrusive than beepers in what they reveal. Thus, the New York high court noted that the issue was "unclear" based on federal law and "premise[d its] ruling on [New York's] State Constitution alone."

It will be interesting to see what happens if (or when) the Supreme Court takes up a similar issue. Of course, that question will have to wait for another day as the New York court's state law basis is independent of federal law, and adequate to sustain the judgment.

Is it "Wrong" for Judges to Follow Precedent?

Psychologically speaking, it may well be--at least according to Goutam Jois. While perusing SSRN the other day, I came across his provocative article titled "Stare Decisis is Cognitive Error." It's an excellent piece forthcoming in the Brooklyn Law Review, and I encourage everyone to check out. Drawing on the social sciences (psychology, in particular), the article convincingly urges that "psychological phenomena . . . undercut arguments for stare decisis." As the Abstract notes:

For hundreds of years, the practice of stare decisis - a court's adherence to prior decisions in similar cases - has guided the common law. However, recent behavioral evidence suggests that stare decisis, far from enacting society's true preferences with regard to law and policy, may reflect - and exacerbate - our cognitive biases.

The data show that humans are subconsciously primed (among other things) to prefer the status quo, to overvalue existing defaults, to follow others' decisions, and to stick to the well-worn path. We have strong motives to justify existing legal, political, and social systems; to come up with simple explanations for observed phenomena; and to construct coherent narratives for the world around us. Taken together, these and other characteristics suggest that we value precedent not because it is desirable but merely because it exists. Three case studies - analyzing federal district court cases, U.S. Supreme Court cases, and development of American policy on torture - suggest that the theory of stare decisis as a heuristic has substantial explanatory power. In its strongest form, this hypothesis challenges the foundation of common law systems.

Check out the article here.

A Pimped Out Obama? Racist or Not?

A college bar in Connecticut is making news with a cardboard cutout of President Obama that it keeps behind the bar. The problem is that the cutout is adorned with accessories that portray Obama as a pimp. The accessories include gold teeth, a hair pick, a pink woman’s hat, beads and plenty of other “bling.”

My favorite quote comes from the bar owner: “We’re not Russia yet. We’re not North Korea yet. We can still make fun of the president.” Interesting.

Is this harmless fun or is it racism that should not be tolerated?

As if Cancer Wasn't Enough...

The New York Times reported on a lawsuit challenging the Patent Office’s decision to grant a patent on genes associated with an increased risk of breast and ovarian cancer. Myriad Genetics owns the patent on those genes and the testing that measures the risk. If women like Genae Girard, the thirty-nine year old battling breast cancer who brought the suit, wish to determine their risk, Myriad is the only place to go.

Can someone really patent our DNA? The argument made by companies like Myriad is that they have done something extra that has “made the genes more than nature's work.” The temporary monopoly provided by the patent is seen as a reward for the company’s investment in research and development. Although this reasoning may be superficially appealing, is it really what is best for the medical community?

Having only one provider of this genetic testing may promote mediocrity. The risks of patent infringement lawsuits prevent other laboratories from improving the tests. Additionally, there are patients who cannot afford Myriad’s high cost. Other labs are capable of providing the tests for a cheaper cost. Should a patient concerned with their cancer risk really be prevented from obtaining an affordable test because of patent laws?

This suit raises many interesting questions to which there are no easy answers. The companies that research and develop the genes, along with the risk testing technique, should obviously be rewarded. This does promote the advancement of medical technology. But should the “reward” really obstruct a patient’s access to essential, life-saving tests? Should others be prevented from learning more about the genes and improving the testing method? What do you think? I have a feeling that these questions will be at the forefront of litigation for a long time.