Sweet

This just in: Canadians are people, too. (In Montana.)

Cast Off the Shackles of Yesterday

About ten days ago I wrote:

So while I am not a fan of political parties, I have to admit that, based solely on the issue of the Supreme Court, which (thanks to Justice Marshall and Marbury v. Madison) can be an enormously influential branch of our federal government, I’m not inclined to vote for a Republican because I would rather not see the composition of the Supreme Court get any more “conservative” than it already is.

Apparently I’m not the only one:

I’m voting Democratic in next year’s presidential election. With Justice Stevens approaching 90 and several other modernist justices past what most people would consider retirement age, I want the next Supreme Court justice or three to have a broad understanding of the Fourteenth Amendment, a commitment to separation of church and state, and loyalty to the “zone of privacy” doctrine that strikes down laws against contraception, abortion, and “unnatural intercourse” as unconstitutional.

Just something to think about.

How to Waste Time

Just found this. “How the Lord of the Rings Should Have Ended.” Brilliant.

This one is pretty cool, too: “Matrix Ping Pong.”

Oh, and what if Carl Sagan were Agent Smith? Find out.

The Crucible

For the curious friends and family, here’s a description of the California Bar Exam (“CBX”), adapted from the one available (PDF) from the website of The State Bar of California:

The CBX is known as one of the hardest bar exams in the United States. It has three parts: six essay questions, the Multistate Bar Examination (“MBE”), and two performance tests. The entire exam takes three days during the last week of July or February—a Tuesday, a Wednesday, and a Thursday.

On Tuesday and Thursday, during a three-hour morning session beginning at 9:00, the test-taker must answer three essay questions. After lunch, there is another three-hour session beginning at 1:45, for a performance test. On Wednesday, both the morning and afternoon sessions are occupied with the MBE.

The six essay questions are designed to measure your ability to analyze legal issues arising from fact situations. Answers must demonstrate your ability to analyze the facts of the question, tell the difference between material and immaterial facts, and discern the points of law and fact upon which the question turns. Your answer must show knowledge and understanding of the pertinent principles and theories of law, their qualifications and limitations, and their relationships to each other. Your answer should demonstrate your ability to apply the law to the facts and to reason in a logical, lawyer-like manner from the premises adopted to a sound conclusion. Actual questions from old exams are available on the Bar website (this PDF includes some essays and a performance test from July of 2007).

The essay questions test on thirteen areas of law: business associations, civil procedure, community property, constitutional law, contracts, criminal law and procedure, evidence, professional responsibility, real property, remedies, torts, trusts, and wills and succession.

The MBE is developed and graded by the National Conference of Bar Examiners (“NCBE”). It contains 200 multiple-choice questions: 100 questions to be answered in the morning session and 100 in the afternoon. The MBE tests six subjects: constitutional law, contracts, criminal law, evidence, real property, and torts.

The performance tests are designed to test your ability to understand and apply a select number of legal authorities in the context of a factual problem. They’re also time-management tests. Each question consists of a “file” and a “library” with instructions advising you what task or tasks you must perform. These are “practical” tasks, like preparing a motion or a memorandum. In addition to measuring your ability to analyze legal issues, the performance tests require you to:

1. sift through detailed factual material and separate relevant from irrelevant facts, assess the consistency and reliability of facts, and determine the need for and source of additional facts;
2. analyze the legal rules and principles applicable to a problem and formulate legal theories from facts that may be only partly known and are being developed;
3. recognize and resolve ethical issues arising in practical situations;
4. apply problem solving skills to diagnose a problem, generate alternative solutions, and develop a plan of action; and
5. communicate effectively, whether advocating, advising a client, eliciting information, or effectuating a legal transaction.

Three days. Eighteen hours. Two performance tests. Six essays. Thirteen areas of law. Two-hundred multiple-choice questions. The rest of your life.
The only thing missing is Kobayashi Maru.

274 Days Away

The bar exam begins on July 29, 2008.

Bad Writing About Good Writing

Editing law review comments has made me even more sensitive to bad writing than I was before. This morning I picked up Lincoln’s Sword: The Presidency and the Power of Words by Douglas L. Wilson, about Abraham Lincoln’s writing skills and how they shaped his presidency. Wilson is not the best writer, though. Here is the first sentence of chapter three:

“In spite of being pitted against candidates who were much better known and far more experienced in national politics, Abraham Lincoln won the presidential nomination at the 1860 Republican convention in Chicago, and then, largely because of the splintering of the Democratic Party, he prevailed in the presidential race itself over the premier politician of the day, Stephen A. Douglas.”

It’s a terrible sentence. The prefatory clause is way too long—nineteen words before the subject of the sentence appears! The second half of the sentence, after “and then,” has its own prefatory clause, too—nine words before the subject of that half of the sentence appears. It’s two clumsy sentences strung into a single, meandering run-on.

These structural problems obscure the content of the sentence, which really ought to be two sentences, because each half has a different point. The first part conveys the sense that Lincoln won the nomination when no one thought he should. The second part implies that he won the presidency “largely because” of the other party’s failure to unite. In my opinion, both points are historically valid, but this sentence doesn’t play up the powerful contrast between them. The first part hints that perhaps Lincoln was a better politician than people thought; the second part hints that maybe he wasn’t, that he won the presidency by a stroke of luck.

Ugh. And in a book about the power of good writing, no less. Here’s how I might rewrite it:

“Abraham Lincoln showed surprising skill when he defeated a slate of better known and more experienced candidates at the 1860 Republican convention in Chicago, but he prevailed in the presidential race by a stroke of luck: the Democratic Party had splintered and failed to unite around Stephen A. Douglas, the premier politician of the day.”

Better? No?

Appellate Argument, Brutal in Manner

This one is probably for hardcore law nerds only. If you are interested in appellate oral argument or Judge Posner, or both, or if you are someone like me, who is but a lowly law student who hopes one day to argue before a federal appellate court, check out the MP3 of the oral argument before the 7th Circuit in USA v. Sanders, Deangelo.

I don’t think it went well for defendant’s counsel, who sounded young, a little insecure, and pretty new at appellate argument. For instance, she started off by reciting the issues before the court on appeal, which should have also been right at the front of her brief. It might have been better to get to the point. But what do I know? Again, lowly student.

There were a couple moments when I thought, “If you’re going to pee your pants, this would be an appropriate moment.” She may have felt the same way. There’s one spot where she is just completely silent and I thought, “Wow! She’s gonna burst into tears!” She didn’t, though, which is good. The judges, particularly Posner, asked pointed questions that just killed her arguments. However, the great and powerful Judge Posner was nice enough at the end to thank her for her service, because she was appointed counsel, and then he apologized “if I was brutal in manner,” which sounded like it drew some chuckles.

I have to say, though, that defendant’s counsel—to her credit—did not have a strong position. She seemed to be arguing that the defendant had not violated a statute prohibiting sawed-off weapons because his weapon was only an inch and a half shorter than the limit and, well, it’s hard to tell when you’re only an inch and a half short, so the government should have a higher burden of proof for sawed-off weapons that are closer to the limit. Maybe I’m wrong, but that one just seems doomed to fail.

Anyway, back to studying. And yes, to take a break, instead of watching the World Series, I was listening to oral arguments from the 7th Circuit.

Originalism and Dumbledore

FindLaw’s Writ has a fun article that combines Harry Potter with constitutional interpretation.

Leaving Baghad

I just heard an excellent final report from one of NPR’s reporters in Baghdad.

My last view of Baghdad will be of the city by air. I will leave frustrated at that death of that golden era of pizza parlors and barber shops; frustrated with Iraqi’s I’ve talked to who proudly say “we are all brothers,” then take up arms against each other; frustrated with American military and civilian officials who stand up and say everything in Iraq is working, then when they leave write books about how everything in Iraq has failed and its not their fault.

And I’m pained by the number of people I’ve personally known who’ve been killed here: journalists, Iraqis and American soldiers.

Follow the link above to read the rest. If you can, listen to the audio.

A Bit of Politics

I wonder when religious conservatives are finally going to notice that they’re not really in the majority.

An article in the Christian Science Monitor observes:

The good news, said some of the 2,500 attendees at the Values Voter Summit organized by the Family Research Council, is that most of the GOP candidates share their views on the bedrock issues of the movement: opposition to abortion rights and support for traditional marriage.

The bad news is that the strongest Republican in national polls, former New York Mayor Rudolph Giuliani, is not with them on those issues. And if religious conservatives fail to coalesce around one of the “anti-Giulianis,” his chances of getting the nomination rise dramatically – and their issues, they fear, will be off the table. With the next president likely to replace two or more Supreme Court justices, including some who support abortion rights, the opportunity of a generation to overturn the nationwide right to abortion, established in Roe v. Wade, could be lost.

Meanwhile, most of the polls regarding the 2008 presidential election show the Republicans looking pretty soft against the Democrats. If the Republicans can’t come up with a Hillary-killer, well, let’s just say Captain Bush might have hit an iceberg a while ago and religious conservatives might want to strike up the band and start playing “Nearer My God to Thee.”

Not that I’m a big fan of Hillary Clinton or the Democrats, either. In my opinion, political parties are a necessary evil at best and safe harbors for the small-minded at worst. However, I must agree with the excerpt above, from the Christian Science Monitor, that the Supreme Court is probably the most important issue on the table with the next presidential election. People who pay attention to the Court pretty much agree that it has taken a hard right turn since John Roberts and Sam Alito showed up, but if you read my post a couple days ago (“Getting Off on Technicalities“) you know that I’m worried about more than just the Court’s stance on politically-charged, substantive issues like abortion or the “war on terror.” (Does anybody else ever notice how strange it is that we call it the “war on terror” instead of the “war on terrorism”? But I digress.)

The thing that worries me about guys like Roberts, Alito, Scalia, and Thomas—the “conservative wing” of the Supreme Court—is not that they are politically conservative, but that they act like their conservatism is just a handmaiden to their views on interpreting the Constitution. It sure seems to me, though, that their interpretive approach is driven by their political and cultural conservatism.

Sure, Justice Scalia has a good point when he notes that progressive change is achieved more surely by constitutional amendments, such as when women got the vote. But it’s not like the Constitution ever said women couldn’t vote. Would it have been so wrong or ineffective if someone had taken a case up to the Supreme Court and argued that the Constitution is predicated on broad citizen participation in government, which surely includes women?

One can get the impression, reading the opinions of the “conservative” justices, that they’re really more interested in passing the buck and, oh, by the way, we have this really excellent judicial philosophy that we can use to rationalize our refusal to speed our progress toward a more inclusive society. That’s not what they say, really, but it’s what some of us see between the lines.

Of course, the “liberal” justices can be infuriating, too. They’re just as quick to throw doctrine and precedent out the window when an issue near-and-dear to their hearts comes before the court, but they seem a lot more genuine about it, at least to me. It’s not all this rhetoric about being bound by the text of the Constitution. Ultimately, I think we have to admit that our Constitution is itself the product of a larger stream of jurisprudence and society, which continues to flow around it in the other nations of the world. The “liberal” justices are quicker to recognize that (and take fire for it), but I have no doubt that their view is the bigger, more humane, more historically attuned one.

So while I am not a fan of political parties, I have to admit that, based solely on the issue of the Supreme Court, which (thanks to Justice Marshall and Marbury v. Madison) can be an enormously influential branch of our federal government, I’m not inclined to vote for a Republican because I would rather not see the composition of the Supreme Court get any more “conservative” than it already is. That doesn’t seem like an unreasonable concern, considering how the religious conservatives appear to be losing steam. Why should they get to lock up the Court for a couple more generations with Justices who aren’t on board with the social and cultural direction of our nation?

I really wish it didn’t come down to bare political ideology, though.