Citizen Kendrick

Twitter: How to Use it To Increase Your Job Marketability

2009-05-02T15:39:00.000-07:00

By Marina Sarmiento Feehan, JD, Asst. Director of Employer Relations, Office of Career Planning, USF School of Law.

I have recently started using Twitter and it is my latest obsession. I tweet for the Office of Career Planning (username: USFLawOCP) and I got so hooked that I created my own account (username: marinafeehan). The more I learned about and used Twitter, the more convinced I am that Twitter is a great opportunity to market yourself and pitch your skills to employers.

Here are a few tips on how law students should use Twitter:

Use Twitter Professionally. Twitter is not Facebook but most students use it like a Status update shortcut. Instead of tweeting about how you are falling asleep in Property class, tweet about what you are learning in class. Create a professional persona, as Twitter is so new that it has no privacy settings: what you say is out there for any Twitterer to see. If you are using your real name, your tweets about your drinking nights may be on the web forever. Legal employers are increasingly googling employment candidates, and web-activity you think is normal and fun may look like poor judgment to an employer. The legal professional is all about the exercise of good judgment. Exercise that judgment now and clean up your Twitter and on-line profile.

Create Your Personal Brand. Twitter is an amazing marketing tool. Use it to market yourself to potential employers, colleagues and clients. Upload a lawyerly looking photo, preferably a head shot. Create a bio that states what type of law you practice or the practice area(s) you are interested in. Your profile can also include honors, memberships, and leadership positions. Use your Tweets to promote your knowledge about the law. Did you write a published article? Tweet that but not in a bragging way but in an informative way, i.e. “Wrote article on 4^th Amendment, analyzing new case law @ hyperlink.” Did you go to a special lecture where you gained more knowledge about a certain subject? Tweet about what you have learned in an intelligent manner.

Follow Others. Are you interested in Aviation Law? Appellate Law? Employment Law? There are Twitterers who specialize in those fields. Do a search on “law” to find and follow them, then use Direct Messages to show your interest to start a conversation. The trick is to get your name in front of the people doing what you want to do. Exchange tweets, learn about that field and think about what that person may want to learn from you. Your tweets should add value. For instance, you can tweet (or Retweet “RT”) articles about the practice of law or other items that may be of interest to lawyers. Follow legal newspapers on Twitter to be up on the latest legal news that you can pass on to others.

Thank Followers. Exercise good manners by acknowledging and thanking your followers. Tweeters who sent me a Direct Message once I started following them impressed me, enough to make me check out their profile and to consider following them. Your Direct Message is also a good way to point others to your website, your blog, and/or your LinkedIn profile in your signature block, which of course, should all be professional in tone. Then keep in touch and remember to add value. Tweet at least once or twice a day to keep your name out there. Remember, Twitter is all about increasing visibility by increasing the number of followers you have.

Move Beyond Twitter. Twitter is a tool and one avenue to engage in social networking. You can also use it to meet actual people in person, i.e. real life networking. Move beyond Twitter and set up an “Informational Interview” to interview that attorney who is doing exactly what you want to do. Find out about her career path, ask her questions about how to break into her field and what you can be doing now to increase your skill set to be attractive to employers. While the Web 2.0 is an amazing tool, one of the best ways to find a job is to get away from your computer and start making face time.

Hope to connect with you on Twitter soon! If you have any questions, drop by the Office of Career Planning and we are happy to assist you. Follow OCP or me on Twitter @ USFLawOCP; @ marinafeehan.

Street Sign Fun.

2009-01-20T10:47:00.000-08:00

Yet another reason to totally love this city sometimes.

The Most Important Story in History on CNN's Main Page.

2009-01-11T00:42:00.000-08:00

With all that boring madness involving the economy, the new President, or that pesky dust-up across the pond, thank goodness this story is getting the proper amount of attention.

Hearsay Through the Hallway.

2009-01-09T16:38:00.001-08:00

I'm sitting in the SBA Office, toiling away on my moot court brief, and I had to close the door to insulate myself from the sound of 1Ls talking (at an above necessary) volume in the hallway about grades. Oh to be a 1L once more - the sheer innocence of the time. If you would have told me two years ago that I would have spent the last two day-and-nights working on a brief and taking 1-3 hour naps on the office couch instead of sleeping in my bed, I likely would have laughed at you for believing I'd ever subject myself to such madness.

[sidenote]: I just heard through outside the door, "And let me know if your GPA is higher than mine. Wait, is it possible to get higher than a 4.0?"

Is it just the newness of it all that compels 1Ls to carry on with these kind of conversations? Are they still making lame law jokes? At what point did 3Ls stop making those same lame jokes?

In any event, did anyone else read the email regarding Arthur Zief's upcoming Memorial? I couldn't track it down on the site, so here's the guts of it:

USF School of Law is extending this special invitation to past and present Zief Scholars --
On Saturday, February 14, 2009, please join the University of San Francisco in celebrating
the life and contributions of our distinguished alumnus
Arthur C. Zief, Sr. B.S. '41, J.D. '47
1919 - 2008

Memorial Celebration: St. Ignatius Church 3:00 p.m. - 4:00 p.m.
Reception: Dorraine Zief Law Library 4:30 p.m. - 6:00 p.m.
Basketball at USF Memorial Gym: Gonzaga v. USF Dons - Tip-off at 7:00 p.m.

Two things struck me as odd:

1. Was it necessary to host a memorial on Valentine's Day, especially when the man's been dead since July? Seems like the entire Fall semester was one giant opportunity to host the same event. And I'm not pretending the "holiday" is a big deal that requires deference, but really, a memorial on the same day that Hallmark has convinced us we're supposed to be celebrating love? If single folks needed any more of a reminder of just how alone they are on that day, a memorial is probably the cherry on the sundae.

2. Does combining the memorial with a basketball game undermine the sanctity of the event for anyone else? Keenan pointed out that Zief was a huge Dons fan, so the basketball game makes sense. I can accept that, but it still strikes me as a tad garish.

Update on Oscar Grant.

2009-01-09T01:08:00.000-08:00

And the protests rage on another night. But it sure is nice to see members of Grant's family come out and ask the protesters to stop destroying property.

I think it's downright inspiring that his mother, while dealing with her own grief, can still clearly see the forest for the trees. I can't say for certain I'd be able to do the same were I in her shoes.

On the BART Shooting & Oakland Riots.

2009-01-08T09:16:00.000-08:00

During one of my every-other-hour check of new headlines on CNN, my attention was drawn for the first time to an iReport, specifically a video clip of four young guys from Oakland, entitled 'The Oakland Riots - Youth Explain Their Anger.'

I'm not exactly sure what separates iReport from youtube - the discussion board was atrocious for the most part, so they have that in common. When I scrolled down to check out the comment board, I was initially shocked at how off-base the discussion got - to the point that many people were only now lobbing racist rhetoric back and forth. Some of it even dealt with trying to offer a rational explanation (i.e. racist justification) for why the BART officer (Johannes Mehserle) fired on Oscar Grant - arguments based on race/crime statistics. I attempted to throw in my two cents (included below), but couldn't manage to get any real traction with all the misspellings and hyper-offensive arguments going on. Here was the point I tried making:

There seems to be a scary amount of "missing the point" going on on this board. First and foremost, it's clearly a tragedy that this man was shot. There's no point in trying to rationalize it by pointing to any statistics relating to race/crime - the man was clearly not posing enough of a threat to warrant lethal force. Second, it was clearly inappropriate for people to react to this tragedy by attacking/destroying the property of people who had nothing to do with the incident, regardless of how poor (or not) the above folks are at articulating their views (or not). And finally, any fair-minded person can recognize the possibility of a scared and possibly poorly trained BART cop mistakenly pulling his pistol instead of his taser gun. If you're under the false apprehension that taser guns do/can not resemble pistols, I recommend doing a google image search. It would take a fool or an intentionally obtuse person to not recognize that.

Am I off-base here?

I mean, based the video I watched, it looks to me like Mehserle was shocked at what he had just done. I'm not so cynical as to think that not only did he intend to fire a pistol (as opposed to a taser gun) into the man's back, but that he is cool-headed enough to feign surprise at the result.

I don't think any more needs to be said about the rioters, I'm probably preaching to the choir on that one.

Out of curiosity, any thoughts on what the liability will be here? My take is that BART (i.e. California?) is in for a hefty civil suit (like, maybe, this one) for failure to properly train the guy - that seems pretty clear. What about criminal charges? Manslaughter? Seems like the most vocal on the subject are calling for murder charges, but I can't see any way that that notion will get anywhere.

Legal challenges to Prop. 8

2008-11-22T19:27:00.000-08:00

As I said in my last post, I wanted to write up a post about the theory behind the legal challenges to Prop. 8. But, I waited so long, that it's probably old news by now. The basic argument is that Prop. 8 isn't an amendment to the California Constitution, but rather a revision--because it is a change to the fundamental government structure and alters the Supreme Court's ability to interpret the Constitution. The argument/standard is obviously more involved than that, but that's the one sentence squib. Under the California Constitution, "revisions" cannot be passed except by a 2/3 vote in the State Legislature, or by calling a Constitutional Convention.

Prof. Nice--visiting ConLaw Professor at USF law--recently wrote the following op-ed piece, and she agreed to let me post it here. She goes through a short bit of history regarding same marriage rights (a short summary of the content of her speech at USF earlier this semester), and then introduces the revision v. amendment argument. Take a look, folks, if you please.

Courting Marriage Equality

Professor Julie A. Nice

What a roller coaster the courtship of marriage equality has been. The first wave of lawsuits challenging the ban on same-sex marriage in the 1970s met with little fanfare and even less success. A second wave of lawsuits over the last fifteen years has had varying success as same-sex couples ask state courts to enforce two fundamental principles underlying all state constitutions. First, the government may not interfere with individual liberty by denying fundamental rights, including the right to marry. Second, the government may not interfere with equal protection of the law by discriminating against unpopular or minority groups, including gays. In short, state constitutional protections of liberty and equality prohibit the government from denying marriage equality to same-sex couples.

The California Supreme Court recently enforced this state’s constitutional commitments of equality and liberty by invalidating the ban on same-sex marriage. The court ruled that the state constitution requires the government to accord same-sex families the equal freedom, dignity, respect, and security of civil marriage. Supporters celebrated in jubilation as pioneers Phyllis Lyon and Del Martin culminated their enduring courtship of more than fifty years to become the first of approximately 18,000 same-sex couples to legally marry in California. But on November 4th voters approved Proposition 8, seeking to add to the state constitution: “only marriage between a man and a woman is valid or recognized in California.” Because laws generally take effect only prospectively, and not retroactively, most legal scholars agree that Prop 8 only restricts the state going forward from recognizing new same-sex marriages. California nonetheless has earned the dubious distinction of becoming the first state--and thus far only state--to strip a constitutionally recognized civil right to marry from same-sex couples.

As the old saying goes, even a dog knows the difference between being tripped over and being kicked. The Prop 8 kick brought the gay and civil rights communities to their feet. Persistent protests in California have inspired hundreds of rallies nationwide. Tens of thousands of marchers are sending the message that stripping rights violates our fundamental constitutional principles.

Be assured that the courts are among those taking notice. One thing constitutional scholars know about the courts is that they don’t decide cases in a vacuum, but are deeply committed to their role as guardians of constitutional commitments within the context of society as we know it. In other words, the regular job of the courts is to decide what protections are necessary for individual liberty and equality to have meaning in today’s time. That’s what the United States Supreme Court did in 1992 when it ruled that the federal constitution prohibited Colorado from amending the state constitution to deny gays protection from discrimination because doing so would “deem a class of persons a stranger to its laws.” And it’s what the United States Supreme Court did in 2003 when it ruled that Texas could not criminalize the private sexual conduct of gays because doing so would “demean their existence.” But these federal decisions do not directly require the invalidation of Prop 8 in part because the challenge to Prop 8 is based only on the state constitution. And most likely the challengers don’t think it’s time for same-sex marriage to end up in the United States Supreme Court—at least not yet. As was the case with other civil rights movements, including the struggle to dismantle the ban on sodomy, protection of same-sex marriage will have to be earned one state at a time.

This brings us to California’s somewhat unique constitution. California’s constitution permits the use of direct democracy to allow voters to “amend” the state constitution by initiative. Before voters can “revise” the constitution, approval by either two-thirds of each house of the state legislature or a constitutional convention is required. So what’s the difference between “amending” and “revising” the state constitution? A revision changes some fundamental principle of the constitutional scheme or makes some far-reaching change in the basic governmental plan.

Prop 8 challengers argue that protections of individual liberty and equality are fundamental state constitutional principles. Prop 8 violates these fundamental principles by stripping protection of the right to marry only from same-sex couples. Prop 8 challengers also argue it is a far-reaching change of our governmental framework when voters strip the courts of their ability to decide the meaning of the state constitution. Just as Prop 115 was ruled to be a revision when it attempted to strip the courts of the ability to enforce state constitutional protections as applied to criminal defendants, Prop 8 similarly attempts to strip the courts of the ability to enforce state constitutional protections as applied to same-sex couples.

Allowing a bare majority to use the constitution to strip recognized constitutional rights would not only be unprecedented, it also would violate both the fundamental principles and the basic framework of the state constitution. To put it simply, denying same-sex marriage is something the voters can no longer do alone.

Prop. 8

2008-11-19T22:54:00.000-08:00

I've intended to write up a post about the legal challenges to Prop 8 for some time. However, I've been dilatory for the past few weeks, and that delay will have to last at least a few more days. For now, I'll post this video of Keith Olbermann's plea against Prop 8's passage. I'm sure most of you have seen it by now. But, if not, it is entirely worth your 6+ minutes.

ACS USF Election Night Party a Huge Success!

2008-11-05T01:02:00.000-08:00

While I'm kind of tired so won't be posting anything of substance about the election, thought I'd just put up some of the many pictures that were taken over the evening. Thank you everyone who came out and made this event such a success! And go Obama! We did it! We made history!

Fired up and Ready to Go!

2008-11-04T13:07:00.000-08:00

Honestly, if you're reading this, you've probably voted already. But if not, please go vote.

Please Vote!

2008-11-03T12:41:00.000-08:00

Tomorrow, November 4th, is Election Day, and the writers/creators of Citizen Kendrick would like to urge everyone to vote. Please vote. Really. Please. Vote. No matter where you stand on the issues, educate yourself about the goals and consequences, and let your voice be heard. Democracy cannot stand in the face of apathy and disinterest (if you like that hokey bit, feel free to add your own motivational turns-of-phrase in the comment section). Again, I want to stress, CK wants you to vote no matter your opinion on a certain issue. All we ask is that you educate yourself and make your choices with conviction, not out of fear or confusion.

If anyone is interested in CK's position on certain issues (I think my views represent the views of most of our writers), here's a cheat sheet to the few measures on which we've taken an overly passionate stand:

No on 4, 6, 8, and 9.

Yes on 5,

Obama/Biden for President.

Great Read for "No on Prop 8"

2008-10-30T21:45:00.000-07:00

Please Fight Proposition 8’s Assault On Same-Sex Marriage

(Our Executive Director, Anthony D. Romero, sent out a heartfelt letter to supporters yesterday. Below is an edited version. Originally posted on Huffington Post.)

I’m angry and heartsick about what may happen in California on November 4th.

In the most personal way possible, I’m asking you for a favor: help us ensure that gay couples all across California keep their fundamental right to marriage — the basic right to be treated just like anybody else.

I hope you will forgive the indulgence when I speak from the heart and tell you my personal story.

You see, I grew up in a loving and supportive household, where my family believed I could be anything I chose — anything except being an openly gay man. Neither of my parents finished high school, and yet, they believed I could accomplish all I set out to do as I went off to Princeton University and Stanford Law School.

They got me through the toughest of times, scrimped and saved, and always believed that failure wasn’t in the cards for me. They had more faith in me than I often had in myself. Whenever my parents visited me at Princeton, my Dad would slip a $20 bill in my pocket when my Mom wasn’t looking. I never had the courage to tell him that the $20 wouldn’t go very far towards my bills, books and tuition. But, it was his support and belief in me that sustained me more than the tens of thousands of dollars I received in scholarships.

When I finished college, they were hugely proud of my — and their — accomplishments. That was until I told them I was gay and wanted to live life as an openly gay man.

Though I always knew I was gay, I didn’t come out to them for many years, as I was afraid of losing the love and support that had allowed me to succeed against all odds. When I did tell them, they cried and even shouted. I ended up leaving their home that night to spend a sleepless night on a friend’s sofa. We were all heartbroken.

When my Mom and I spoke later, my Mom said, "But, Antonio (that’s the name she uses with me), hasn’t your life been hard enough? People will hurt you and hate you because of this." She, of course, was right — as gay and lesbian people didn’t only suffer discrimination from working-class, Puerto Rican Catholics, but from the broader society. She felt that I had escaped the public housing projects in the Bronx, only to suffer another prejudice — one that might be harder to beat — as the law wasn’t on my side. At the time, it felt like her own homophobia. Now I see there was also a mother’s love and a real desire to protect her son. She was not wrong at a very fundamental level. She knew that treating gay and lesbian people like second class citizens — people who may be worthy of “tolerance, ” as some assert, but not of equality — was and still is the last socially-acceptable prejudice.

Even before I came out to them, I struggled to accept myself as a gay man. I didn’t want to lose the love of my family, and I wanted a family of my own — however I defined it. I ultimately chose to find my own way in life as a gay man. This wasn’t as easy as it sounds even though it was the mid-1980s. I watched loved ones and friends die of AIDS. I was convinced I would never see my 40th birthday, much less find a partner whom I could marry.

As years passed, my Mom, Dad and I came to a peace, and they came to love and respect me for who I am. They even came to defend my right to live with equality and dignity — often fighting against the homophobia they heard among their family and friends and in church.

The right to be equal citizens and to marry whomever we wish — unimaginable to me when I first came out — is now ours to lose in California unless we stand up for what’s right. All of us must fight against what’s wrong. In my 43 short years of life, I have seen gay and lesbian people go from pariahs and objects of legally-sanctioned discrimination to being on the cusp of full equality. The unimaginable comes true in our America if we make it happen. But, it requires effort and struggle.

One of the things I love about the ACLU is that it’s an organization that understands we are all in this together. We recognize that injustice anywhere is a threat to justice everywhere.

Given what’s at stake in the outcome of this election, I am personally appealing to you for help to fight the forces of intolerance from carrying the day in California next Tuesday.

If you have friends and family in California, please contact them right now, and ask them to vote NO on Proposition 8. You can send them a message here.

We need to make sure people keep in mind that gay people are part of every family and every community — that like everyone else, gay people want the same rights to commit to their partners, to take care of each other and to take responsibility for each other. We shouldn’t deny that, and we shouldn’t write discrimination into any constitution in any state. Certainly, we can’t let that happen in California after the highest court in the state granted gay and lesbian people their full equality.

Unfortunately, due to a vicious, deceitful $30 million advertising blitz, the supporters of Prop 8 may be within days of taking that fundamental right away.

To stop the forces of discrimination from succeeding, we have to win over conflicted voters who aren’t sure they’re ready for gay marriage but who are also uncomfortable going into a voting booth and stripping away people’s rights. With the ACLU contributing time, energy and millions of dollars to the effort, we’re working hard to reach those key voters before next Tuesday.

If you have friends and family in California, please contact them right now, and ask them to vote NO on Proposition 8. Share this email with them. Call them. Direct them to the ACLU of Northern California’s Prop. 8 webpage for more information.

Don’t let other young people grow up to be afraid to be who they are because of the discrimination and prejudice they might face. Let them see a future that the generation before them couldn’t even dream of — a future as full and equal citizens of the greatest democracy on earth.

As Martin Luther King, Jr. reminded us, "The arc of the moral universe is long, but it bends toward justice." As we strive to defeat Prop. 8 and the injustice it represents, the ACLU is trying to make that arc a little shorter.

On behalf of my Mom and family, and on behalf of all the people who will never face legally-sanctioned discrimination, I thank you for being part of this struggle and for doing everything you can to help.

It is a privilege and honor to have you as allies in this fight for dignity and equality.

For additional information on Prop. 8 and tools for advancing LGBT equality in your community, visit www.aclu.org/getequal.

If you've made it this far down the post, please let people to vote "no" on Prop 8. Quite simply, it is the just, fair, equitable, and more importantly, it is the right thing to do.

One Week...

2008-10-27T21:48:00.000-07:00

Will this be enough? We shall see...

USF Law Moot Court Board Administers Dismal AYC Competition

2008-10-19T23:57:00.000-07:00

The USF Law Moot Court Board runs an annual competition, Advocate of the Year (AYC), and this year they seem to truly missed the mark in running this year's program.

Advocate of the Year is an intramural appellate advocacy competition open to all USF law students who have completed 1L Spring Moot Court. Participants are presented with an issue upon which they are to research and brief the issues of the case.

After submitting briefs, competitors argue in preliminary rounds before judges. In the preliminary round, each competitor argues twice: once as petition against one opponent and once as respondent against another opponent. If you win both arguments, you advance to the second round. If you lose both arguments you are eliminated. If you lose one, but win one, your score will determine if you advance to the second round.

In the second round, the format is the same as the first, two arguments, two competitors. If one goes undefeated in the second round, regardless of how they did in the first round, they have a shot at the final round in which two competitors argue for title of Advocate of the Year.

And this final round is where the Moot Court Board has shown itself to be inept in administering this program. This year, four contestants emerged as finalist according to a flyer posted on the Moot Court bulletin board. Three of these contestants were undefeated in both rounds (say Contestant A, Contestant B, Contestant C) and the fourth lost one argument in the first round (Contestant D). Yet, in the flyer next to this posting it lists Contestant C and Contestant D as the finalists. This means that Contestant A and Contestant B were eliminated from the competition without ever losing an argument! To put it another way, a competitor who has lost an argument is jumping ahead into the final round despite the fact that there remains eligible two competitors who have not lost ANY arguments.

This policy makes no sense and is unfair to the competitors. The Moot Court Board presumes that by winning both their arguments in the second round, each candidate is equal and it would only be fair to judge them by their scores. This argument might hold some ground if each candidate remained undefeated through two rounds. But this is not the case because one of the candidates is defeated- he lost an argument in a previous round. Because he has a loss, he is therefore, not equal to the remaining three who have never lost. It therefore makes no sense that he is put into the final round.

To add further insult to injury, Contestant A actually defeated the contestant (Contestant E) who Contestant D lost to in an earlier round. By that logic, even if can be argued that Contestant A is inferior to Contestant B and Contestant C by some arbitrary measure, he should at least, at a minimum, be considered superior to Contestant D because he defeated Contestant E who was better than Contestant D. It therefore reasons that Contestant A would be better than Contestant D. If E>D and A>E then A>D.

Even further, the Moot Court Board seems to entirely miss the point of the competition. The point of the competition isn't to score points. The point of the competition is to see who is the best advocate by pitting advocates against each other. Scoring is merely a way to determine who did better in that argument relative to their immediate competitor- not a third party who is not arguing.

When Contestant X argues against Contestant Y in a match, their score reflects only how well Contestant X did relative to Contestant Y. Now say, in the future, Contestant X is arguing against Contestant Z. The winner of this argument should be who ever argues better relative to each other. Can Contestant X argue more persuasively than Contestant Z? It would be mind boggling to forgo competition and declare Contestant X a better arguer than Contestant Z simply because Contestant X had a better score against Contestant Y than Contestant Z did against Contestant W. The scores are apples and oranges. Indeed, it makes no sense to substitute a past score for immediate competition. This would be like forgoing the actual presidential election on November 4 and declaring Barack Obama the winner because he's leading in the polls today.

What the Moot Court Board should do is have the four competitors actually compete in an additional round. The two winners of that round should then be the finalists. If a semi final round cannot be conducted, then, as a last resort, the three competitors who have remained undefeated through out could possibly average out their total scores with the top two averages advancing. Or possibly, look for any overlap where competitors have faced the same opponents and looked to see who scored better.

It is unfortunate that instead of having a top notch competition featuring the best competitors winning and losing by their own merits, we have a substandard event in its place. This is not due, however, to a deficit of ready, intelligent, and intense competitors. But because of a Moot Court Board that is, for lack of better words, lazy. Instead of putting together a competition that competed all the way through- competitors advancing through head to head competition with other competitors- the Moot Court Board chose to take the easy way out and determine winners based on apples and oranges scores. It's defrauds the competitors who put so much time and energy into AYC, it cheats the school and its student body from being able to host and enjoy a strong, substantive academic competition, and it dishonors the integrity of the competition itself.

As a clarifying matter, I don't intend this critique to be a broad based assualt on the Moot Court program itself or its Case Counselers who work hard in the summer to teach 1Ls proper advoacy techniques come the spring. Nor do I have a bias in the outcome of the competition for I did not participate. I comment only as an observer. Indeed, this critique is very narrowly aimed at those Moot Court members who planned, supervised, and executed this competition.

While I give the greatest respect to the two competitors who are competing the finals, it appears unfortunate that their contest will be tainted with the suggestion that the best competitors might not actually be competing. I can only hope that next year's Moot Court Board cares enough about the value of the AYC competition to correct the mistakes of this year's Board.

Justice Thomas and Originalism

2008-10-19T23:30:00.001-07:00

Found in the Wall St. Journal, an Op-Ed piece by Justice Clarence Thomas explaining his rationale for the originalist way of interpretting the Constitution- the basis for how he makes his decisions:

As important as our Constitution is, there is no one accepted way of interpreting it. Indeed, for some commentators, it seems that if they like or prefer a particular policy or conduct, then it must be constitutional; while the policies that they do not prefer or like are unconstitutional. Obviously, this approach cannot be right. But, it certainly is at the center of the process of selecting judges. It goes something like this. If a judge does not think that abortion is best as a matter of policy or personal opinion, then the thought is that he or she will find it unconstitutional; while the judge who thinks it is good policy will find it constitutional. Those who think this way often seem to believe that since this is the way they themselves think, everyone must be doing the same thing. In this sense, legal realism morphs into legal cynicism. Certainly this is no way to run a railroad, not to mention interpret the Constitution. . . .

Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.

Why Colin Powell Will Be Voting For Barack Obama

2008-10-19T12:15:00.001-07:00

I couldn't have said it better myself.

USF Basketball Begins: Season Preview

2008-10-18T23:59:00.000-07:00

While folks partied away their Friday evenings, I chose to stick around school and attend USF Basketball's Midnight Madness. Midnight Madness is a way for the mens and womens basketball teams to gain some campus exposure and generate some excitement.

Well, in that regard, they failed.

I got to the gym about 930pm. The event started at 10pm. They were serving hot dogs and hamburgers outisde, which was nice. And they gave out Los Locos t-shirts to students- or pretty much anyone who asked. Except for me of course. The girl demanded to see my student identification after passing out a passing out a t-shirt to some middle aged guy without looking because she was too busy talking to her sororiety sister friend. Apparently me looking her in the eye and saying, "what's the matter don't you trust I'm a student?" didn't invoke any sympathy for my plight. She, again, looking me right back in the eye, asked for my student ID. I gave her my ID.

After getting my hard bargained for t-shirt, I entered the gym and took a seat. It was about a quarter of the way full. At 10pm, it was still less than half way full. At that point, the women's team came out and did a little cheorgraphed dance routine to some Michael Jackson songs. They seemed to have a good time, and it was entertaining enough. Then they scrimmaged. Then the men's team came out and did, pretty much, the same thing. My thoughts were I certainly hope they play with more enthusiam than their scrimmages.

On that note, let's get to the real point of this post: USF Men's basketball. The main star is Dior Lowhorn. Leading the WCC in scoring last season, he averaged 20 ppg last season (and 7.4 rebounds per game) and is a pre-season all WCC conference player. Another top player is guard Manny Quezada. He ended the season with 14ppg and 4.6 assists per game (though an unimpressive 3.9 turnovers per game). Even with such talent, USF will have a tough year. They're coming off of a 10-21 season (5-9 conference). They have a new, unproven coach in Rex Walters, who came over from undistinguished Florida Atlantic University (15-18; 8-10 in the Sun Belt Conference).

In the pre-conference, the Dons face some tough challenges in Cal, USC, Boise St., UCSB, and Pacific. And it doesn't get easier during the conference. Gonazaga, St. Mary's, and San Diego, will, in that order, once again, likely dominate the conference by a large margin. If USF can scratch out some conference wins and top Santa Clara for fourth place, I'd consider that a very successful season.

Overall, it's definetly a rebuilding year. I'd say give Walters a few years to get his own recruits in and see how he does. We should have a pretty good idea by the time conference games roll around as to his coaching ability. I'm still guessing a 5th or 6th place finish, depending on how Pepperdine fares.

PS: Home games to watch for: UCSB (11/24, 7pm), San Diego (1/9, 7pm), St. Mary's (1/11, 7pm), Gonzaga (2/14, 7pm), and Santa Clara (2/21, 7pm). I hope to be at a few of them...so, see you at War Memorial! Until next time, Go Dons!

Kerry Max Cook event at USF a success

2008-10-14T18:57:00.000-07:00

This posting is somewhat overdue, since the Kerry Max Cook event was on October 2, but hopefully it is better late than never. Mr. Cook came to USF to give a presentation, and the event was co-sponsored by the American Constitution Society and the Criminal Law Society. Prof. Richard Leo was also prominently involved in enabling Mr. Cook to attend, and the Sociology department and the Leo McCarthy Center (on the undergrad campus) were very generous in providing funding for the event. In all, it seemed about 70-80 people attended (room 100 was pretty full), and I'd say 70-80 people in attendance is enough to label the event a success! Pictures can be found here, for those who are interested.

For those who were unable to attend, but are interested in Mr. Cook's story, here's the deal: Cook was arrested in 1977 for the rape and murder of a 21 year old woman he had met once, briefly, at an apartment complex pool. Cook was also 21 at the time of the murder, and was arrested based on a single fingerprint found in the victim's apartment. In total, over a dozen unique fingerprints were found in the apartment, but only one set showed a match in the law enforcement database--Cook's (Cook had a record as a minor for car theft and other joy-riding related offenses). A bloody fingerprint was also found in the apartment. That print did not match Cook's, but it did not lead to the arrest of any other suspects.

At trial, Cook was convicted based on this fingerprint (and a police investigator's assertion that he could determine the finger print was left at the time of death--however, "time stamping" a finger print is impossible); the testimony of the victim's roommate, who identified, at trial, Cook as the killer, despite initially identifying the victim's ex-boyfriend, and describing the killer as having gray hair, cut around the ears (Cook, at the time, had long brown hair, as seen in this picture--the witness explained this contradiction by claiming her memory had improved in the year before trial, despite research showing that memory is best in the immediate aftermath of an event, and does not improve overtime); the testimony of a friend who claimed to have been with Cook the night of the murder (on appeal, the Texas Court of Criminal Appeals declared this testimony prejudicial and contradictory--as another prosecution witness placed Cook in a different place at the same time--and ruled the testimony could not be read on appeal because, as a result of the testimony, Cook's conviction was obtained through fraud and in violation of the law); and the testimony of a jailhouse snitch, Edward "Shyster" Jackson, who claimed Cook had confessed to him while the two were serving time together, though prison records would later show Jackson and Cook were not housed together at the time Jackson claimed Cook confessed (Jackson later admitted he fabricated the confession in order to gain his release from prison--at the time, Jackson was serving a sentence for murder, and, after gaining release in exchange for his testimony, was arrested and convicted of two other murders).

All told, Cook was tried three times, resulting in two convictions and one hung jury. He spent 22 years in prison and 13 on Death Row--in conditions so horrendous, Texas' Death Row was later declared to violate cruel and unusual punishment. Before Cook's fourth trial, the Texas Court of Criminal Appeals ruled the prosecution could not use the prejudicial and contradictory testimony of Cook's friend. The Court's opinion also harshly criticized the conduct of the police and the prosecution, saying the investigation was intentionally misleading.

Without this prejudicial testimony, the prosecution could not place Cook near the scene of the crime at or near the time of death. Rather than dismiss the case (or try the case without the prejudicial testimony, running the "substantial risk that without the testimony . . . [Cook] would walk the streets free from this," as the prosecutor said), the prosecution offered Cook a plea to time served. Cook ultimately plead "no contest" in exchange for a sentence of time served.

Two months after Cook's plea, DNA test results of a semen stain on the victim's panties returned, showing the DNA did not match Cook's. Instead, the DNA matched the victim's ex-boyfriend--the person whom the victim's roommate initially identified as the murderer. According to the prosecution, this finding was not exculpatory. The deputy assigned to the case in advance of Cooks' fourth trial would, after the results of the DNA analysis were revealed, describe the prosecution's goal as "to ensure [Cook] got a conviction for murder that would follow him the rest of his life." This would be the same conviction the Texas Court of Criminal Appeals described as obtained through fraud and in violation of the law.

Due to his plea, Cook remains a convicted murderer under Texas law. His story has been featured in a PBS documentary, in a play entitled "The Exonerated," and in Cook's book "Chasing Justice." Cook was also called the most persecuted man in America by the Houston Chronicle.

California is Running Out of Money Due to Global Credit Crunch

2008-10-03T01:08:00.000-07:00

The LA Times recently ran a story that hits home exactly how the crisis on Wall St. directly hurts Main St. In a letter to US Treasury Secretary Hank Paulson, our Governor, Arnold Schwarzenegger stated that California needs an emergency loan of $7 billion dollars in order to cover California's day to day expenses. According to the LA Times, this means that " If the state is unable to access the cash, administration officials say, payments to schools and other government entities could quickly be suspended and state employees could be laid off."

Why, now, is California asking for this money? Well, California relies heavily on short term debt in order to meet its budget obligations. Indeed, it relies on taxes, of course. But, until money rolls in from tax season, and sales tax revenue from the holidays, it needs to float short term loans to get immediate cash. This means that in order to raise money, California sells short term bonds to investors. This money goes to pay salaries and fund schools. This is a pretty standard practice for California; indeed for most businesses.

The financial crisis we are in has caused considerable fear in the bond market- i.e. where California gets its money through short term loans. Investors are simply unsure of the market and as a result, there is little trading, meaning there are few buyers for people wanting to sell their debt. This means California cannot get people to buy it's loans. When investors don't buy their loans, California doesn't receive cash. When California doesn't receive cash, employees don't get paid. When employees can't be paid, employees get laid off. When employees get laid off, they can't purchase as many goods from local retailers. When local retailers lose business, they go out of business. And so on and so on in a downward cycle. This exact situation applies to many other employers who take out short term loans to meet payroll or need the money to add extra inventory for the Christmas season.

The Senate recently passed its rescue plan. Let's hope that the House, which votes on their resucue plan Friday, can get it together to pass theirs. We simply cannot afford to have states, like California, running out of money. This, I'm sure, is in all of our interests.

SCOTUS Case Index for Upcoming Term

2008-10-02T15:12:00.000-07:00

Found on SCOTUS Wiki, these are the cases to be heard in October, November, and December by the US Supreme Court:

October 6 Sitting

October 6

Altria Group v. Good (07-562) - Preemption, "light" cigarettes
Locke v. Karass (07-610) - Public sector unions, agency fees
Vaden v. Discover Bank (07-773) - Federal jurisdiction, arbitration

October 7

Herring v. United States (07-513) - Fourth Amendment, police error
Arizona v. Gant (07-542) - Fourth Amendment, car searches
Kennedy v. Plan Adm. for Dupont Savings (07-636) - ERISA, divorced spouses

October 8

Winter, et al. v. Natural Resources Defense Council, Inc., et al. (07-1239) - Navy sonar, separation of powers
Crawford v. Metropolitan Government of Nashville (06-1595) - Title VII, retaliation
Summers, et al. v. Earth Island Institute, et al. (07-463) - Environmental, justiciability

October 13 - Legal Holiday

October 14

Bartlett v. Strickland (07-689) - Voting Rights Act, minority districts
Pearson v. Callahan (07-751) - 4th Amendment, qualified immunity
Oregon v. Ice (07-901) - Sixth Amendment, consecutive sentences

October 15

Waddington v. Sarausad (07-772) - Habeas, jury instructions
Chrones v. Pulido (07-544) - Habeas, jury instructions

November 3 Sitting

November 3

Wyeth v. Levine (06-1249) - Preemption, drug labels
Ysursa v. Pocatello Education Association (07-869) - First Amendment, payroll deductions
Carcieri v. Kempthorne (07-526) - Indian Law, federal-state power

November 4

FCC v. Fox Television Stations (07-582) - Administrative law, "fleeting expletives"
United States v. Eurodif (07-1059) - Anti-Dumping laws, uranium enrichment
Jimenez v. Quarterman (07-6984) - Habeas, statute of limitations

November 5

Negusie v. Mukasey (07-499) - Asylum, persecutor bar
Van de Kamp v. Goldstein (07-854) - Prosecutorial immunity, wrongful convictions

November 10

Chambers v. United States (06-11206) - Armed Career Criminal Act, enhanced sentencing
United States v. Hayes (07-608) - Criminal, "domestic violence"
Melendez-Diaz v. Massachusetts (07-591) - Confrontation Clause, forensic analysts

November 11 - Legal Holiday

November 12

Pleasant Grove City, UT v. Summum (07-665) - First Amendment, public monuments
Bell v. Kelly (07-1223) - Habeas, ineffective assistance of counsel

December 1 Sitting

December 1

Kansas v. Colorado (105, Orig.) - Arkansas River
14 Penn Plaza LLC v. Pyett (07-581) - Arbitration, civil rights claims

December 2

Entergy Corp. v. EPA (07-588) and consolidated cases - Clean Water Act, cooling structures
Fitzgerald, et vir v. Barnstable School Committee, et al. (07-1125) - Sex discrimination, Title IX

December 3

Philip Morris USA, Inc. v. Williams (07-1216) - Punitive damages, state bars
Haywood v. Drown (07-10374) - State court jurisdiction, federal constitutional claims

December 8

Peake. v. Sanders (07-1209) - Notice, veterans' claims
Pacific Bell Telephone Co.,dba AT&T California v. linkLine Communications (07-512) - Antitrust, "price squeeze" claims

December 9

Arizona v. Johnson (07-1122) - 4th Amendment, passenger searches
Cone v. Bell (07-1114) - Habeas, procedural default

December 10

Ashcroft, Former ATT'Y Gen. v. Iqbal (07-1015) - Prisoner abuse, liability of high-ranking officials
AT&T Corp. v. Hulteen (07-543) - Title VII, pregnancy leave credits

Unscheduled OT08

Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi (07-615) - Terrorism, victim compensation
Harbison v. Bell (07-8521) - Clemency proceedings, appointed counsel
Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, et al. and Alaska v. Southeast Alaska Conservation Council, et al. (07-984/07-990) - Clean Water Act, fill permits
Knowles v. Mirzayance (07-1315) - Habeas, ineffective assistance of counsel
Boyle v. United States (07-1309) - RICO, association-in-fact
Kansas v. Ventris (07-1356) - Voluntary statements, absence of a knowing waiver
Hawaii, et al. v. Office of Hawaiian Affairs, et al. (07-1372) - State settlement with native Hawaiians
United States v. Navajo Nation (07-1410) - Indian coal lease amendments, breach of government fiduciary duties
Montejo v. Louisiana (07-1529) - Interrogation of indigent defendant in absence of attorney
Burlington Northern and Santa Fe Railway Company, et al. v. United States; Shell Oil Company v. United States (07-1601; 07-1607) - Environmental clean-up costs
Puckett v. United States (07-9712) - Breach of plea agreement claims
Rivera v. Illinois (07-9995) - Peremptory challenges
Corley v. United States (07-10441) - Suppression of a voluntary confession
Vermont v. Brillon (08-88) - Speedy trial

Proposition 6, some information and opinion

2008-09-23T16:35:00.000-07:00

The November 2008 election seems certain to have record high turnout and interest, not only for the general Presidential election, but also for California's vote on Proposition 8, which would eliminate the right of same-sex couples to marry. However, it seems to me that Proposition 6, or the "Runner Initiative," is getting lost in the shuffle, so to speak. So, I wanted to post some information about Prop 6, and then offer my opinion.

The Basics: Prop 6 has been nicknamed the "Safe Neighborhoods Act," and purports to be a "comprehensive anti-gang and crime reduction measure that will bring more cops and increased safety to our streets and greater efficiency and accountability to public safety programs and agencies that spend taxpayer money." Among the elements of Prop 6 are:
1. Require all defendants 14 and older charged with gang crimes to be deemed unfit for detention in a youth center, and charged as an adult;
2. Impose 10-year penalty increase for "gang-related" crimes and for carrying loaded or concealed firearms in public, and increase penalties for use and possession for sale of methamphetamine to the same level as cocaine penalties;
3. Eliminate bail for undocumented aliens charged with "gang-related" crimes;
4. Require all occupants of public-housing to submit to yearly criminal background checks, and if any family member does not pass the check, all family members are removed from public housing;
5. Allow use of hearsay statements when a witness to a "gang-related" crime is unavailable at trial;
6. Establish a reimbursement program for providing information that leads to an arrest or conviction;
7. Provide funds for GPS tracking of gang-offenders, sex-offenders, and other violent crime offenders

Funding: Prop 6 does not include any new taxes, but instead will divert money from California's "General Fund." The funds would be diverted from K-12 Education, Higher Education, Health and Human Services, Transportation and Housing, and Environmental Protection. There will be an estimated cost of $500 million, annually, for increased funding of criminal justice programs and prison and parole operations, and a one time capital outlay of $500 million to prisons. Prop. 6 would add $365 million dollars, from the General Fund, to the already $600 million allotted to "law enforcement" in the current budget, and prohibit any money from being directly distributed to mental health, drug treatment, and other county programs providing treatment to juveniles. Incidentally, Prop. 6's largest contributor--at $1 million in donations--Henry Nicholas, was indicted for felony drug conspiracy in October 2007. On June 16, 2008, he was arraigned on a number of drug, sex, conspiracy, and securities fraud charges, with investigation revealing a "sex cave," "fully stocked warehouse of drugs," and "a brothel's worth of prostitutes on the payroll."

Opinion: I'll keep my opinion comments brief, because I'd like people to make their own conclusions, and the main impetus for this post was just raising awareness of what Prop. 6 is. The above factors 1-7 are the actual aims of the initiative, absent any partisan presentation or "spin." I think arguments can be made about the efficacy of each of those aims and whether they can be accomplished without more people getting caught up in the net than necessary. The only comments I'll add as a matter of opinion are these:
1. How on earth are we going to fund this? We are already in a complete budget crisis, and now we're going to apply $500 million in capital to our prisons. After that, we're going to spend $500 million a year to institute these programs--with absolutely no focus on deterrence or prevention, but only enforcement and punishment. And let's not forget the $365 from the current budget to be taken from funding for education and health care. The cynic inside me asks, "Won't the money funneled into the prison system go, in part, towards education and health care for prison inmates? So law abiding people in public schools and health clinics get less funding, and instead the money is diverted, by Prop. 6, to people who are put in prison based on Prop. 6. How backwards is that?"
2. While it seems clear that the spending from Prop. 6 will go entirely towards enforcement and punishment, not diversion or prevention, proponents of the initiative will argue that it will have a deterrent effect, and there will be a residual reduction in crime. However, this initiative is aimed, principally, at youthful offenders. Kids with too little supervision at home, too much time on the streets, too little education, and too few after school and community programs. It's no surprise that kids with no supervision and no education turn to gangs and crime. So how, then, do we prevent crime amongst youth gang members by stripping funds from education and after-school programs? How do we reduce crime by throwing the family members of a criminal offender out of their public housing? Isn't it more likely we can prevent crime through more, not less, social support? By funding before and after school programs, youth activities leagues, and making sure the children and family members of offenders have a place to live so they can put their life back in order? The reality is the only way something like Prop. 6 works is if we just keep everyone in prison for the rest of their lives, even for comparatively minor offenses--a proposal I'm not sure reactionary voters would oppose, despite the aim of the penal system being the twin goals of retribution and rehabilitation. But the ironic (or sad, depending on your viewpoint) thing is that we as a society simply wind up draining our economy supporting our already bloated prison system, at the expense of our own education, our own healthcare, and programs truly aimed at crime prevention.

A lawyer I respect greatly was once asked about California's criminal laws, and he labeled California, "The harshest state in the harshest country in the Western world." An initiative like Prop. 6, labeled so enticingly as the impossible-to-vote-against "Safe Neighborhoods Act," is yet another in a long line of examples of the truth in that statement.

Awesome Kickball Game on Friday! But Not Without Controversey...

2008-09-22T21:30:00.000-07:00

For those who weren't able to go to the BLA/SELA bbq-kickball game, you missed out on a helluv a time. Despite being a bit overcast, some folks manned the bbq and the rest of us manned one of the five kegs. There was a good sized turnout (we went through 4 kegs and half way through the 5th). The turnout was actually probably a little too good, as evidence by the low scoring kickball game. There were literally, 30 people per team in the outfield on defense. It was ridiculous.

But of course, the festivities wasn't the highlight of the game. A misunderstanding between two students nearly escalated into a full blown tussle thanks to the preventative efforts of some of the other students. I don't think it's necessary to go into the specific details of what went on, but it prompted some thinking afterwards by some colleagues: if a fight had occurred, would this have been grounds for an expulsion? And who might get expelled? Is this even a matter for the school to get involved with?

One take is that no sanctions should occur because the event happened off campus. And even then, it was simply a personal dispute between two private parties that had nothing to do with the school. As such, the school should stay out.

The other side of it argues that the Honor Code mandates the school get involved. The Honor Code states in Section 2(b) it has jurisdiction to punish for any violation of local, state, or federal law as well as any conduct that occurs on or off the USF campus, if it bears some relation to the school. Section 2(c) allows punishment for any conviction for a local, state, or federal law, on or off campus, if the action bears upon their fitness to practice law. As such, Section 2(b) and 2(c) give very broad, thus giving the school pretty wide latitutd Seeing as it's definetly a violation of law to assualt someone, the school could take jurisdiction and punish any offenders.

This point taken to it's logical end, a person could be on summer vacation in Wasilla, Alaska, get convicted for public intoxication, and face the possibility of being expelled from law school when he gets back in the fall. Even though the events in Wasilla have absolutely nothing to do with the school. Does this seem right? Anyone have any thoughts?

ACS USF Event Gets Associated Press Coverage

2008-09-22T01:42:00.000-07:00

Just to let readers know, the ACS USF event held the other week- attorney Dennis Edney speaking about his client, Omar Khadr, a Guantanamo Bay detainee- received coverage by the Associated Press and was run by newspapers such as the Washington Post. Not too shabby for an event put on by a school club.

Although our specific club, ACS USF, isn't mentioned, USF does get a shout out. Here's an excerpt:

SAN FRANCISCO -- For six years, and for no pay, Dennis Edney has represented Omar Khadr, the next prisoner at Guantanamo Bay to face trial in a military tribunal system that the lawyer calls a sham.

So he's stepping outside the courtroom, speaking out about his client and hoping to win a victory in another venue. His goal is to sway public opinion and pressure the Canadian government into bringing his Toronto-born client home.

"I realize the only success we're going to have for Omar Khadr is a political one," Edney said in an interview with The Associated Press after addressing aspiring lawyers at the University of San Francisco this week. "So I've moved from being a lawyer to someone who goes on the lecture circuit _ all on my own cost, of course."

Hopefuly we can put on more events that raise the profile of USF Law. Go Dons!

Treasury Bailout of Wall St. Draft Legislation

2008-09-20T10:39:00.000-07:00

The Bush Administration has just released its proposal for Treasury authority to buy up mortgage-related assets. It's really short, just a few pages in length. And seems to be fairly broad. All the Treasury has to do is report to Congress every so often and it gets authority to purchase up to $700,000,000,000 worth of bad Wall St. investments. [Funny how just a little bit ago folks were suggesting that we should entrust these same Wall St. people to manage actively manage individual social security accounts. Or even funnier how we can bail out Wall St. but can't bail out Medicare, or educate our children properly, or fix roads, etc...] This will raise the national debt to $11.3 trillion. The plan could pass as early as next week.

For greater comparison, the NY Times stated that "A $700 billion expenditure on distressed mortgage-related assets would be roughly what the country has spent in direct costs on the Iraq war and more than the Pentagon’s total yearly budget appropriation. It represents more than $2,000 for every man, woman and child in the United States." Sorta scary in the scope of this plan.

What I Learned From OCI.

2008-09-16T14:44:00.000-07:00

The Fall On Campus Interview (OCI) season is wrapping up and as Assistant Director of Employer Relations, I have eaten lunch with the interviewers every day since the last week of August. During the course of making conversation, I have gleaned a few pearls of wisdoms from the employers:

1. Dress Like a Lawyer, Not an Architect. One employer commented on how he was very impressed by a male student except for his clothing. The student showed up in a dark suit, very well-tailored but had the “Miami Vice” dark shirt, dark tie, cream colored slip on loafer look going on. The partner told me he could not take the student seriously after seeing the shoes. “He looked like he was interviewing for an architecture firm, not a law firm. Tell your students to err on the side of conservatism. When in doubt, wear a white shirt, dark suit, and dark shoes.” As for the women, you can never go wrong with a skirt suit or pant suit but he begged me to tell the female students “No plunging necklines! You want to be remembered for the content of the interview, not your cleavage.” Lastly, remember you are interviewing for a summer associate position, not a barista position. Take off all piercings, nose rings and other distracting jewelry.

2. When You Are Nervous, Don’t Drink the Interviewer’s Water. Another interviewer told me he asked a student about his Moot Court brief and the student became so nervous that he reached across the table, grabbed a bottle of water and started chugging it. The problem – it was the interviewer’s water and the interviewer had already drank out of it. The lesson? It’s okay to be nervous and you can always pause to think before answering the question BUT if it’s on your resume, it’s fair game. If you cannot discuss an item on your resume in an articulate intelligent manner, then think about dropping it. The best way to prepare is to go through your resume, line by line and think about possible questions and answers to those questions. Then be ready to answer the all-important question to “Why do you want to work for us?” The answer should not be “I want to get really good experience and your firm can offer me that.” Instead, you really need to think about what that firm or employer has to offer, in the way of reputation or practice area, that makes that employer the place for you.

3. Bite the Bullet and Explain Your Grades. I have heard it from multiple large law firms – if there is a C on your transcript, you need to explain it. There have been a number of students that firms have been impressed with who are not in the Top 20% of the class. However, if the student does not address in the on-campus interview why he or she received a C, then no matter how much the interviewer liked the student, the interviewer has no ammunition to go back to the firm with when it comes to vetting the student through the hiring committee. Most employers cannot call back a student with a C on her transcript unless there’s a good explanation for that C. When a student did explain his C, this is what I heard from the partner who interviewed him, “I was so impressed when Mr. B explained his grades. He took it head-on and did not shy away. Now I actually have something to argue on his behalf when I go up in front of the hiring committee. Because Mr. B was a great candidate all around, except for those two C’s on his transcript. I definitely want to call him back.” Other students who I have counseled to bring up their grades have come to my office immediately after their interviews and told me they were surprised by the results. The employers reacted in highly positive ways and one interviewer, who had been aloof throughout, suddenly took great interest, started taking notes, and asked for a writing sample and references. (On a side-note: It's the Big Firm employers that pay attention to grades, but small to mid-sized firms, along with government/public interest employers look at the whole person).

4. Answer Completely and Tell Stories. Interviewers get incredibly bored, hearing the same answer over and over again to “Why did you decide to go to law school?” Typical answer – “I’ve always wanted to go to law school, ever since I was little.” Really, since you were 3 you knew you wanted to be a lawyer? Or was it actually when you were 14 and you were taken to work by your father on “Take your Daughter to Work Day” and you realized that your father, the attorney, made an impact on people’s lives and, inspired you to do the same thing. Tell the whole story, the reason behind your drive, not the surface fluff answer that reveals nothing about you to the employer. Another pet peeve -- just repeating verbatim the job description on your resume when answering the question “Tell me about your job this summer.” If they wanted you to repeat the laundry list of tasks you did, they would have asked you to recite your resume. Instead, tell them a story – what did you learn, what exciting issue did you work on, what problem you had to overcome. Tell a story and the employer will have something to write down on her evaluation form. Entertain them and the interviewers will remember you and your chances for a call-back will increase.

5. Don’t Listen to the Rumor Mill - OCI is a No-Brainer – Apply. All the on campus employers – law firms, government agencies, district attorneys and public defenders offices noticed it: A significant drop in the number of OCI applications this year. “Why is this?” They keep asking us, the Office of Career Planning. Several top firms are so distressed by the drop that they want to come on campus as speakers, to host events or attend mixers, anything that will increase their visibility on campus so they can recruit from a larger pool of talent. Other firms were disappointed and expressed it in such a way that we are afraid the low numbers may mean that firm may not be coming back to USF to recruit next year. So what happened? We took an informal poll of students and found that a number of viable candidates listened to the Rumor Mill. A 2L who is in the Top 10% of the class was not going to apply to OCI because she heard very few people actually get their jobs through OCI. If she hadn’t run into her 3L mentor who screamed bloody murder to make her apply, she would have missed out. As it stands now, she’s an OCI favorite and has a number of call-backs. Another 2L also listened to the Rumor Mill, and despite the fact that she had received a prestigious paid summer position through a competitive scholarship process, did not apply to OCI. I was shocked when I learned this because here’s the deal, if you don’t apply through OCI, then yes, you won’t get your job that way. Don’t take yourself out of the running by being to afraid of rejection to apply. When employers, who specifically come to campus because they want USF students, find that very few have applied, do you think they will want to come back? And how do you think you will find your job when you’ve missed out on one of the easiest opportunities presented in your lifetime? There is NO OCI when you graduate. There are very few opportunities for 3L’s in OCI. Your 2L year is the year when you need to find that summer job to help leverage you for your post-graduate position. You need to use all the venues available to you in your job search. OCI is just one of the ways. But if you don’t do OCI, then the path to finding a job becomes that much harder. Now you have to find the law firms and send each and every single one a cover letter and resume. And guess what, that firm may not be so friendly or accepting of USF students. Thus, when presented with a no-brainer opportunity such as OCI – take it. Even if the only lesson you learn is that you don’t want to work for a big firm that is still a valuable lesson.

It has been an interesting experience this Fall, talking to all the employers. Most interviewers are USF alums. Many are quite candid about their hiring needs and requirements and all are enthusiastic about USF students and want more USF representation at their firms. Let's not let them down -- if you are a 1L even considering working for a law firm, then do OCI next year.

Marina Sarmiento Feehan, JD is the Assistant Director of Employer Relations for the Office of Career Planning at USF School of Law.

ACS USF Speaker: Dennis Edney

2008-09-14T20:50:00.000-07:00

OK, So, I'm a little late on posting this (who can blame me, I ventured off to Clark County, NV for the weekend)... but the USF chapter of the American Constitution Society hosted a speaker on Wednesday, September 10. ACS USF hosted defense attorney, Dennis Edney. Mr. Edney is an attorney for one of the youngest Guantanamo Bay detention camp detainees, Omar Khadr. Mr. Khadr was captured when he was 15 years old and has been held at Gitmo, without trial, for 7 years. He is, finally, going to trial this October, where Mr. Edney will mount his defense.

As to the event, it was the first event hosted by ACS USF- and it was wildly successful. Over 100 people showed up (110 by my count), including students and faculty. Mr. Edney spoke for a little bit over an hour and fielded questions afterwards. We were stopped only by the fact that a legal writing class started flowing in. In addition to speaking on his experiences with Mr. Khadr and his personal experiences visiting Guantanamo Bay, Mr. Edney main message was clear: anyone can do what he [Mr. Edney] does. That is, anyone can fight for justice. Indeed, by many accounts, Mr. Khadr is being subject to terrible physical and mental abuses at Guantanamo Bay. The least of which include the violation of fundamental legal rights. Mr. Edney has taken on this case pro-bono because he feels it is the right thing to do. He believes that, indeed, while Mr. Khadr should be held accountable for any actions that can be proved, the American government should equally be held accountable for its actions in treating detainees.

If you missed the talk, we're working on getting a video to post. It's a talk well worth viewing. Until then, here are some (mlidly decent) pictures I took of the event. Enjoy

Burnham v. Superior Court

2008-09-12T00:15:00.000-07:00

By the third week of Fall semester, I start getting a lot of search traffic over at my blog Traditional Notions from people searching for Burnham v. Superior Court. It seems that at about this time of year, first year law students across the country start shaking their heads and saying, "What the hell does this mean? Why are the justices so contentious if this is a unanimous decision? I don't get it. Maybe if I ask teh internets I will find an answer." And they arrive at this post, where presumably most of them get confused all the more.

But some of them seem to like it. Now, with McKaskle and Putz gone, I don't know if any of these newfangled civ pro professors are even covering Burnham, or if they are even teaching the FRCP, or if they spend the whole class period talking about fabulous things like the intersection of critical theory and normative jurisprudence. But if the new profs do still cover all the personal jx cases, and if any there are any USF first-years out there reading this blog (which there aren't), and if they have any free time (which they shouldn't), and if they want to spend it learning more about Burnham (which would make them sick in the head... who the hell wants to learn more about Burnham?), they might do so by clicking here.

SBA Fall 2008 BBQ

2008-09-06T20:49:00.000-07:00

Folks, in case you missed it, the SBA had it's Fall BBQ to introduce the 1Ls to USF and for the rest of us...well, to get some decent quality beer and mingle with the folks we already know on the SBA's tab (hence, your fees). I think most people enjoyed the event. It featured (decent beer) wine, soda, hot dogs, hamburgers, veggie burgers, and cookies. Aside from the caterers running out of condiments (how they run out of condiments before food, I know no idea) it was a good time had by all. Well done to the SBA. But how about some In N Out next time? Do for, you know, the out going 3Ls in the Spring. PS- special thanks to Achal for the above pics.

The Predator's Ball

2008-09-01T21:41:00.000-07:00

Yes, I realize this blog heading is a rip off of a book written about Michael Milken had his junk bond buy outs, but I think it aptly describes the media vetting process of John McCain's VP choice, Sarah Palin. From how it's started, it has been ugly. Picked and announced only a few days ago, not only does Mrs. Palin have no significant political experience to speak of, it's already been disclosed that she fibbed in her first national speech about fighting the "bridge to nowhere," is not even really a Republican, has ethical questions, and now she's been forced to release a statement explaining her family.

Indeed, recently been disclosed that Mrs. Palin's daughter, Bristol Palin is five months pregnant. Unmarried, and 17 years of age, this was, to say the least, shocking. I'm not sure if anyone thought Mrs. Palin would announce this of her daughter. I mean, there's nothing wrong with it. It's just unexpected. What's even more breathtaking, is that this information was only released in an attempt to take any wind out of the sails of an accusation by the Daily Kos suggesting that not only is Ms. Palin five months pregnant, but in fact her younger brother, Trig, is not actually her brother, but her son. Yep. Talk about explosive. Assuming, of course, this rumor is true. The accusation came from the uber-partisan Daily Kos, which has also posted pictures of her pregnant, thus refuting the rumor.

The point of this post however, is merely to point out how savage the press, and especially the blogosphere is (even more alarming, of course, are the journalistic standards that blogs possess). And it is unfair, but part of the game, that Ms. Palin has to suffer this. Even if the rumors are false, Bristol Palin, all 17 years of her time on Earth, is still being brutally bludgeoned by the investigative club of the press and it is an experience she will never forget. Quite frankly I feel sorry for her (yes, I understand the hypocrisy in me posting on this). No woman, and especially no child, should have her pregnancy broadcast all over the globe for this type of scrutiny. And it's an even greater shame that Mrs. Palin chose this path for her daughter. She must have known this was going to happen.

Alas, as bad as I feel for Ms. Palin, given the bloodthirsty nature of presidential elections and the 24 hour news cycle, it will likely only get worse. Mrs. Palin was clearly not properly vetted by McCain's people. The media and the voters (given the conversations I've had already with my friends), for sure, will make sure this is properly taken care of. And, indeed, they will have a ball.

If there is ever a time a daughter needed her mother, this would be it. But at this point, I'm not sure if there is anything her mother can do.

A Tale of Two Women

2008-08-30T23:11:00.000-07:00

As I'm sure you're readily aware, Republican presidential candidate John McCain has picked Arkansas Governor Sarah Palin. Indeed, this is only the second time a woman has been picked for the VP slot on a major party ticket. The first time was when Geraldine Ferraro was picked to run with Walter Mondale in 1984 to run against Ronald Reagan. While there are many issues and questions that surround Ms. Palin that will eventually be vetted out by the press corps., one issue that strikes me as odd is her comparison to Senator Hillary Clinton and the suggestion that Ms. Palin will be able to draw Clinton supporters who have not yet found a fondness for Democratic candidate, Barack Obama.

Yes, I'm not a woman. So, no, I'm not the target audience the McCain campaign might not be targeting with Ms. Palin. But I simply cannot see any comparison between Ms. Palin and Mrs. Clinton that might attract women voters over to the McCain camp. Unless of course, the McCain camp believes women's voting decisions are not complex and that women were supporting Mrs. Clinton for the sheer fact that she was a woman.

I might be wrong, but I believe many women supported Mrs. Clinton because of her experience in and around public office, commitment to key issues they identified with, toughness in dealing with opposition and challenges, intellect, poise under pressure and spotlight, and of course, yes, her being a woman, I'm sure, did play a balancing factor. But for the most part, Mrs. Clinton, by many measures, was qualified to be President and many women saw this, and thus, supported her.

In stark contrast, stands Ms. Palin, whereby most measures, is not qualified to be President. Sure, she has leadership experience. She's been the mayor of a town with a population of 5,469, and has spent two years as the governor of Alaska, who has a population roughly 80,000 people smaller than San Francisco. Does this mean she's able to navigate the complex issues and many moving parts that comes with being vice-president, or (well, given McCain's age) president? I'm simply not convinced.

Many of her supporters suggest that her accomplishments while governor, though only serving two years, match the accomplishments of a person in office for 8 years. This is supposed to represent her ability to "get things done." Still, however, I'm unconvinced. Again, getting things" done" in Alaska is not like getting things "done" in Washington. There are so many parties and considerations to contend with, both domestically and internationally, that any comparison to achieving anything in relatively isolated Alaska cannot be seriously considered.

What got me the most, however, was listening to Ms. Palin's speech and, comparing it to Mrs. Clinton's speech at the DNC. While both women are very good speakers, Ms. Palin's speech simply lacked the clarity of ideas, details, and passion that Mrs. Clinton invoked in her address to the DNC. It is readily clear, that Mrs. Clinton had spent a considerable amount of time thinking about issues that face America and solutions to these problems. This, of course, did not come about solely because of the last few years of her unsuccessful run for president. This thought process has evolved over the course of the last 35 years of her life. 35 years directed toward public service including time as First Lady of the state of Arkansas, on the campaign trail for her husband in 1992 and 1996, as First Lady of the United States, and her time as Senator of New York state. This includes time when she must surely have questioned her role in the public eye as the spotlight of the national press core shines more brightly and more intensely than even the longest Alaskan day.

In sum, Mrs. Clinton has had a lot of time to contemplate what it means to be President. She's seen the peaks and the valleys of Office. She's been all over over America and has engaged this country in conversation. Mrs. Clinton has a vision for this country. Ms. Palin, fresh-faced from Alaska, has not given us a similar vision. And because of this, I cannot see Ms. Palin seriously attracting female voters to McCain. Echoing the clichéd words of Vice-Presidential candidate, Llyod Bentsen, Governor Palin, you're no Hillary Clinton.

Bar Night: APALSA style

2008-08-27T00:47:00.001-07:00

For those who haven't seen the flyers, bar night this week will be held at Milk. It's at the end of Haight near Stanyan. It's being hosted by APALSA and their flyers request you not wear sandals or flip flops. Closed toes shoes or you're not getting in the door. And be sure to bring your USF ID, or you will be subject to a cover. Sound like too many things to remember for one bar night? Well, suck it up for this one and come out for this one, cause the remaining bar nights will be a blast (including, from what I hear...a rock climbing bar night later in the semester- sounds pretty bad ass if actually is true). Anyhow, hope to see you out there on Thursday.

The Bowmans are Awesome!

2008-08-26T23:30:00.000-07:00

I don't normally post on music cause, well, this is a law school blog. But what good is it running a law school blog if you can't occasionally tell law students about awesome ways to spend their non-reading time- like listening to amazing indie artists such as the Bowmans who I came across this summer while in LA. I liked the Bowmans so much I felt compelled to blog about them.

The Bowmans consist of twins Claire and Sarah Bowman. From New York, they sing, sorta folk music, though myspace lists them as Americana/Indie/Pop. Not lame folk music, though. But stuff Fionna Apple covers when keeping her singing voice in shape for Santa Monica patrons (at the show I was at, some fan went up after the performance and told Sarah that Fionna Apple had covered them the night before at some venue in Santa Monica.) Anyhow, whatever you want to call it, it's great music and a really recommend you check em out. One of my favorite songs (if you can call it that) is entitled "Porker Song," which is actually a not-too- serious call to stop eating pork. For the record, I still eat pork, but it's a fun song nonetheless. My favorite actual song is entitled "Make it Last." It's a nice melody, presents good imagery, and is easy to listen to. Check it out.

Anyhow, it turns out The Bowmans are coming out with a new CD (well, it's in pre-sale as they're in the process of recording it). As this got me excited, I bought a presale copy ($27). It'll come signed and personalized. Fancy, indeed. Britney Spears and Coldplay certainly don't give you this type of quality. And The Bowmans make way better music. So, check out their page. And, if you like their music, I recommend you sacrifice a few bar night drinks, pony up $27, and help a few musicians live out their dreams. It'll be the best thing you do all day. And your ears, liver, and music sensibilities will thank you for it later.

Claire (left) and Sarah Bowman

1Ls Get No Laptops in Class

2008-08-25T23:14:00.000-07:00

Well, technically, I think only section 2 gets no laptops, while section 1 is able to use them. This is the new policy at school. And I think it only reaches the 1Ls. The purpose, obviously is to test how effective learning and class room participation, etc. is when there is/is not a laptop present in the classroom. Section 1 is the control group. The hope is that Section 2 kids pay attention better.

I have a few thoughts on this. First, I think it's an interesting idea (and one that's gaining popularity) because, for me, surfing the internet was a huge distraction. However, I'm not sure if eliminating laptops in classrooms will actually make learning that much more efficient. I say this because classroom learning is still, actually a small part of your learning of the material. I mean, if you think about it, you have your reading, outside thinking (and discussions with classmates), outline making/outline reading, briefing/book briefing, finals study time, and office hours. I learned most of my stuff outside of classroom (and within 2 weeks of my final). I don't think eliminating laptops will necessarily make things better. I mean, kids are still going to doze off in class. Whether they are reading the news online or thinking about the awesome sandwich they're eating for lunch. If the kid is bored, the kid will be bored.

Secondly, laptops are good because people have terrible handwriting and taking notes via word processor is simply more efficient. For a short time, I tried leaving my laptop in my locker and just taking notes by hand. Big mistake. Either my hand would get too tired, my notes too unreadable, or I wouldn't be able to write everything fast enough. Plus, I'm a southpaw so my hand tended to smear the ink over the paper (and over the side of my palm.) So, I decided that taking notes on my laptop was a good thing. Which is weird, because I used to take notes in college by hand. However, in college, there wasn't much active participation in the discussion. As opposed to law school where you're supposed to be interacting with the discussion. This, I found, is much easier when I'm not worried about whether I'll even be able to decipher what I've written.

My final thought was...why couldn't the administration just put a block on wireless access in the classrooms (I don't even know if that's possible). I guess that would just make too much sense. Because the problem with laptops is that people stop paying attention to lecture because they are surfing the internet, not because they are so smitten with their word processing programs. If we can just prevent them from surfing the internet, people can still get the efficiency of note taking on MS Word or whatever Mac users use.

Well, whatever. There are a lot of other factors obviously to consider, but I don't much feel like thinking too deeply (or writing too deeply) about it now. So long as it doesn't effect me, it'll be interesting to see how the 1Ls do. A grand experiment, indeed.

Molokai Hoe Training

2008-08-24T18:13:00.001-07:00

I have been asked by the founders of this blog to participate in its content by chronicling my training and experiences as I prepare for the World Championships of Outrigger Canoe Racing, also known as Molokai Hoe. The race will take place on October 12th, and will consist of 9 men, 1 outrigger canoe (which seats 6 men at a time) and a 42 mile span of ocean that separates the Hawaiian Island of Molo'kai from the capital island of O'ahu, more specifically the city of Honolulu. I personally find it difficult to believe that a story recording my experience in such an esoteric sport would be interesting to anyone who hasn't experienced the sport. However, as I was asked to do so, I have no problem providing the information and allowing you to make up your own mind.

For those who have no experience with an outrigger canoe, it may be pertinent to start with a short history of the sport and the technical aspects of the canoe itself, as many of the terms are Polynesian in origin and may not be familiar to the casual observer. First, the canoe itself is roughly 40 feet long, weighing no less then 400 lbs. It seats 6 people evenly spaced down the length of the boat. The Steersman sit in the back, the man in the first seat is called the stroker. He sets the pace for everyone else, and I believe it is the most difficult position in the boat. Whoever sits in seat 3 is the "Caller" and calls the "changes." The calling is necessary, as each paddler can only stroke on one side of the canoe at a time, and thus the Caller signals when the entire crew is to change sides, and continue to paddle. Seats 1-5 each stagger on which side they paddle, and the Steersman, will switch at will, so as to most effectively steer the canoe. Connected to the canoe, by two wooden struts called "Iakos" (pronounced yiakoo) is the "Ama," a 10 foot hollow piece of specifically shaped composite material which is used to ensure the boat does not constantly flip, being that it is only 2 feet wide at the center.

The outrigger canoe is considered to be the main means of transportation for all Polynesian travelers as they slowly "island hopped" from the Asian mainland thousands of years ago. The basic structure has literally gone unchanged for the past 5 millennia. The cultures whose history began with their ancestors traveling across vast spans of ocean on these canoes, are still the cultures/countries that dominate the sport, namely the Hawaiians and Tahitians.

As for me, I began racing outrigger canoes in the past year and it has become an absolute passion, to such an extent I am now dedicating over 20 hours a week to training for this one day, October 12th. This will be the content of these entries, and I hope you find them interesting enough to finish each entry....

One 3L's compliment to USF's new 1Ls

2008-08-23T18:02:00.000-07:00

Piggybacking off Keenan's post, I'd like to extend a round of applause to this year's batch of 1Ls at USF. Fantastic turnout, folks. We made a push for the unofficial Bar Night last year, and it wound up just being our usual group of friends and one or two 1Ls. This blogger (who made it his mission as a student orientation leader to promote Bar Night, ACS, TMC, and all around law-school-good-times) was personally delighted by the Class of 2011's early commitment to morale boosting alcohol consumption. Terrific start to what should be a terrific year.

Oh, and while I'm here: let's extend a big thumbs-down to Keenan for misspelling "morale" on the Bar Night flier. According to Keenan, TMC stands for the "The Moral Committee." As a TMC enthusiast (though not a co-founder, sadly), I can say that the TMC I know and love does not concern itself with morality in any fashion--unless it be a-morality. Partial thumbs-down to yours truly for not catching the typo in the first place.

Unofficial Bar Night: Success!

2008-08-23T12:46:00.000-07:00

Well, the first USF event put on by the USF American Constitution Society/USF Morale Committee went down last night at Martin Mack's in the Haight. We promoted it pretty heavily at the 1L info fair and put up flyers around school. We even chalked the boards. I got there a little after 9pm with some friends and there was already a decent crowd from USF. Before long, that swelled to probably around 60-70 USF folks. Combine us with the regular Friday crowd and the letting out of the Outside Lands festival going on in Golden Gate Park, the bar was packed. So we pretty much stuck to the rear of the bar. Getting drinks seriously, took 10 minutes.

We were supposed to go to Hobson's Choice at 11pm, but a friend of ours told us that folks were waiting in line to get into Hobson's so the executive decision to stay at Martin Mack's was made. There was a good mix of 3Ls and 1Ls, but not many 2Ls. Apparently some 2L was having some house party that evening.

All told, it was a fun evening. And it seemed like folks were having a good time. From what I could see of that night, the unofficial bar night was a success! Thank you to all who came!

What I've Learned: Brian

2008-08-21T21:31:00.000-07:00

Hello all. We here at Citizen Kendrick are striving to provide entertaining, yet informative fodder for your blog reading/web searching needs. As the new school year rapidly approaches, we are going to implement new things to CK. You'll see them get rolled out over the course of the fall semester, but here is the first new addition: What I've Learned.

Taken from the magazine Esquire, CK's version of "What I've Learned" will attempt to give brief bits of advice on law school. We hope this installment will be the first of more contributions. I've always found the Esquire feature entertaining and enlightening. We hope you'll at least find our version entertaining.

Without further ado, here is mine-

1. It's only as hard as you make it/you can still have fun.
If you made it into USF Law School, you're obviously more than capable of strong academic achievement. You wouldn't be here without good grades at a good university, and well-above average LSAT scores. Over the last two years, I've become a firm believer in the notion that if you trust yourself, try to avoid extra stress, and learn to work diligently, law school is anything but impossible. USF has a great community--the older students (myself included) are always willing to help, the professors want to see you succeed, there are tutors for all 1L classes, and your classmates will likely be more than happy to join study groups. The close-knit community at USF also offers lots of opportunities for bonding and relaxing. We have great participation in Bar Night, the student groups are active and motivated, and the Fall and Spring parties/BBQs are terrific fun. Indulge yourself by having some fun, and I'm sure you'll find law school to be entirely manageable.

2. Your LRW professor is your best friend.
Hopefully this point was stressed during orientation, but I'll say it clearly: LRW is the most important class you'll take. LRW will help you pass your finals and the Bar, it will help you get a summer job, and it will help you be good at that job when you get there. Learn IRAC/Love IRAC/Succeed in law school. Self-confessional time: In my first year I noticed that during finals where I felt very confident I drifted from IRAC, but when I was less confident I forced myself to stick to IRAC. Lo and behold, my grades were better on the finals where I stuck to IRAC, despite having less of a grasp on the substantive material.

3. Don't be a gunner.
Ok, we all know what a gunner is--the person who practically tears their rotator cuff raising their hand, who always has to be the first to comment on EVERY topic/question/response, and who views class as an opportunity to have a one-on-one conversation with the professor while the rest of the students listen. Gunners are no good. I don't like gunners. You don't like gunners. Hell, gunners don't even like gunners. I read a really hokie saying once. But, however hokie it is, it's no less true: "You have two ears and one mouth. You should listen twice as much as you talk."

4. Try to exercise. It'll help with the stress.
It's a sad fact of law school that life becomes depressingly sedentary. Combine that with a poor diet, and it's not surprising what follows--weight gain, lack of energy, even for some a lowering self-image (if your self-image happens to rely on your physical appearance...it's ok, you can admit it if it does, CK won't judge you). Going to the gym helps stave off some of that. But, more importantly, it can be a great stress reliever to raise your heart rate, exert yourself physically instead of mentally, sweat a little, and just get away from the library for a while. Leaving aside any concern for physical appearances, the stress relief of a good workout can really help clear your mind, at the very least.

5. Relax already.
Law school is stressful. Ok, no big surprise there, right? The first few weeks are overwhelming. The time demands are unbelievable. It really doesn't sound like a fun prospect, and it isn't--for a while. But, as I've said already in this posting, the demands of law school become far less daunting when you have the right mental approach to school.

I speak from personal experience on this issue. More self-confession time: I felt completely lost my first semester. I hated law school, I considered dropping out more than once, and I thought I would never catch-up to everyone else. But after that first semester I joined our intramural football team, I made more friends, I became more active around campus. My grades rose. In year 2, I made a concerted effort to be even more socially active, not to view school as a life/death proposition, generally to be less obsessive and less anxious. As a result, my grades rose over those two semesters as well. Now I'm no model student, but the more I've made an effort to have a well-rounded life, the better my grades have been. I've noticed similar results from my friends.

I know as law students we're afraid of math, but think about this: there are 168 hours in every week. If you learn to be efficient with your time, you can probably do all your studying/briefing/attending class in about 60 hours a week. Add in another 40 hours or so of sleep, that leaves 68 hours a week for you. 68 hours a week to have hobbies, to relax, and to be a person, not a law school automaton. That means if you want to take a Sunday off to have a picnic in Golden Gate Park, you have the time. Friends going to a music festival? You can make the time. Even if all you want to do is spend an evening making yourself a nice dinner and drinking a bottle of wine with friends, you have the time. Obviously, you cannot let the academics slide--that's a recipe for disaster. But never-ending obsession with the demands of law school is also a recipe for disaster. Relax already, you'll find that it helps.

What I've Learned: Keenan

2008-08-21T18:51:00.000-07:00

1. USF is a friendly environment. Make friends. Law school is a lot tougher going at it alone.

2. Make your own outlines. You learn more by writing it in your own words.

3. The legal world is EXPANSIVE and touches all aspects of this globe. Don’t be afraid to explore beyond the confines of casebooks.

4. Start your first year job search early. Especially judicial externships. Some people have interviews for judicial summer externships during winter break. Plan accordingly.

5. Don't be afraid to speak in class. There is absolutely no reason to feel intimidated. Nobody in your class actually knows what they’re talking about. If people insist they do, they are lying.

Keenan is a 3L. He is a Bay Area native, loves UCLA athletics, and is sad Arrested Development is no longer on television. John Wooden remains his hero.

What I've Learned: Marina Sarmiento Feehan, JD

2008-08-21T18:37:00.000-07:00

Yes, good grades are important but bad grades can be overcome. If for some reason, you don’t end up in the top of the class, accept the grades you have and move on. Don’t make excuses for them. Instead, balance your grades out with practical work experience, volunteer work, and journal/leadership positions. Don’t let your grades define you – become a well-rounded person.

The best thing I did in law school was take a legal position off-campus. I learned more during my one semester as a judicial extern for a federal district court judge than I did my entire three years at law school. Not only was it fun and challenging but I improved my writing and got to see live courtroom drama. By seeing the writing and motions of other attorneys, yours will improve. And finally, I understood why 1L’s have to sit through a very boring class regarding the Federal Rules of Civil Procedure. Those rules make the legal world go round.

Talk to as many lawyers as you can. The more you know about the actual practice of law and the different practice areas, the better you are during interviews and in career planning. Building relationships now with attorneys and fellow law students can only help you in the future.

It’s a small legal community with a long memory. Good manners, strong ethics and common sense go a long way. There are law firms who will not interview attorneys whom they once interviewed as a law student because that person never sent a thank you note or was rude to the recruiting coordinator.

Use the Office of Career Planning early and often. I wish I had. Students that do have better resumes, interviewing skills and job search techniques. Once you graduate, there is no “On-Campus Interview” season where employers come to you. You’ll have to do your own search and it is better you learn job search skills earlier rather than later.

Marina Sarmiento Feehan, JD, who practiced litigation and transactional IP law, is the Assistant Director of Employer Relations at the Office of Career Planning at USF Law. If you'd like more information on career planning, Ms. Feehan can be contacted at msfeehan@usfca.edu or at (415) 422-6757.

What I've Learned: Kristen

2008-08-21T18:31:00.000-07:00

1. There are people who care about your success.

2. Law school is humbling.

3. It’s better to admit that you are confused than to pretend that you understand.

4. Don’t be afraid to speak your opinion. No matter what position you take, there will always be people who disagree.

5. What you get out of law school is what you put into it...get involved!

Kristen is a 2L. She loves her UCLA Bruins and, interestingly enough, makes tremendous chocolate chip oatmeal cookies.

What I've Learned: Tom Moses

2008-08-21T18:30:00.000-07:00

"Things I've Learned"
By Tom Moses
Adjunct Professor, USF
McGeorge School of Law, 1984

I have never really thought of myself as a "typical lawyer." Even in law school, I never really identified myself as "one of those guys." You know, with the grey flannel suits and the self-righteous attitude and the burning desire for a corner office (although, certainly, I wouldn't mind the latter). I guess I have always tried to keep both halves of my life apart. I call it "taking off my lawyer hat and putting on my real person hat." And, I think, that approach to life and law has kept me sane, sober (relatively at least), and still interested in the profession and the people in it for lo these many years.

What advice would I give to lawyers-to-be? (Besides, of course, the proverbial "Don't do it!") I think that it would boil down to this:

1. Study hard, but play harder. Law school can be, and usually is, very stressful. To succeed, you do have to do a lot of studying, and more studying, and outlining, and briefing, and writing. But, you also have to find the time to do something fun, and really do it! Whether it is running through the park, or biking along the bay, or even just working up to a new level on your favorite video game, it's important to try to maintain some connection with things you enjoy doing. It's all a matter of physical, mental and emotional balance.

2. Have a support group. One can't go through law school without the help of others. No person is an island. Whether for practical reasons (you need some help on a Con Law outline), or romantic (many of my law school friends got married right after they graduated), or emotional (it's always good to have someone to vent to), friends are a necessary part of your law school experience. You'll find that many of the friends you make now you will be the kind that will "stick with you." It's much like the survivors of war or a national disaster--shared pain brings you closer.

3. Make time for yourself. While friends and the social aspects of law school are great, there are times when you just have to be happy being alone. When I was studying for the bar, I made it a point to put down the books, fix a sandwich, and watch "I Love Lucy" and "Leave It To Beaver" reruns--just me and the TV. Or, and my friends thought I was really weird for doing so, I would take an hour off and read a book. (I read all the novels of Charles Dickens for relaxation during law school, along with some James Clavell and Mark Twain.) After a little "me-time," I went back at it refreshed. For what it's worth, I took the bar the year that they added the "performance" part of the test. While the bar pass rate was the lowest in history that year, and many of my friends who studied interminable hours at the law library failed, me and Lucy and Little Dorrit passed!

4. Be kind to teachers and staff. Not all teachers are Professor Kingsfield. Most if not all of them are there because they have a genuine interest in their subject matter and in their students. Take advantage of this and make a connection with a teacher. Having a mentor can be really helpful in your future career. Even perhaps more importantly, make friends with the law school staff, whether it be the registrar or the career placement director. They can help make your life easier at school, and perhaps guide you to a good job connection. Networking is everything!

5. Finally, remember why you're here. Everyone is in law school for some reason. Some are here because they want to "defend the defenseless." Others are here because they want entree into corporate America and the "lifestyles of the rich and famous." Still others might be here because they are intellectually curious or want to make this a better world. There will be times during your law school years when you ask yourself "why am I bothering?" That's when you have to remember to re-motivate yourself. Keep the goal in mind, and it'll help you get out of the depths on those black days.

I wish you all well as you continue on your path towards lawyerhood. I doff my "real person" hat to you!

Unofficial Bar Night

2008-08-20T18:19:00.000-07:00

To all of Citizen Kendrick's loyal (or not so loyal) readers, make sure you kick off the new year in style--The American Constitution Society and The Morale Committee are hosting the first (unofficial) Bar Night! This Friday, August 22, we're going to be bar-hopping in the Haight--starting at 9:00 p.m. at Martin Mack's and moving to Hobson's Choice at 11:00 p.m. Be there, Be awesome!

And, for some extra fun, check out the fliers now posted around Kendrick featuring yours truly getting a little birthday cheek smooch, and Citizen Kendrick's favorite Jersey trash reppin' the West Coast, along with other glorious images.

The New 1Ls and Law School Musical

2008-08-19T23:29:00.000-07:00

Today orientation started for the new 1Ls at our school. Oddly, I served as an orientation student leader. This means that I, and a partner, spent two hours of our day speaking to a small group of new minted 1Ls. (It's not clear whose brilliant idea it was to have me be the first impression of any new law students... but so be it. I got a free dinner and wine out of it.) In our presentation we talked to them about what it's like at USF, what to expect from law school, etc. We told them not to worry: academics come first, but it shouldn't sacrifice your sanity. I mean, we're not Hastings. We care about our people. I have no idea what they thought of my presentation. Hopefully I did more good than damage. We'll see.

The new 1L crop seemed really nice. They asked (for 1Ls) intelligent questions and seemed to be cautiously enthusiastic about law school. It's about where they should be. Somewhere between naive and afraid. I look forward to seeing them wander the halls in a week or so.

Anyhow, this got me thinking about my favorite law school video: law school musical!

Looking back at 1L year, this video is depressingly accurate. Which makes it that much more amazingly funny. It's also a great reminder that if we can't sit back and laugh at ourselves and the situation we put ourselves in here in law school, we'll never make it out alive. So, study hard, and be prepared to laugh at your own collateral estoppel and "hairy hand" jokes. You'll know you're truly in law school once you finally do. Nerd.

And, for the record, I did have a "broke ass Dell" my first year. And it finally broke over the summer. I now roll with a ThinkPad. So far, much better. Hopefully, it stays that way.

2 Men Shot to Death in Car Near USF Campus

2008-08-14T09:56:00.000-07:00

Per the SF Chronicle:

Two men were found shot and killed early today inside a parked car bordering the University of San Francisco campus, police said.

The shooting was reported at 5:30 a.m. at 2245 Golden Gate Avenue, a police spokesman said.

Officers were summoned to the scene by a report that the men were sleeping inside the vehicle.

No arrests have been made. Homicide investigators are at the scene of the shooting.

University spokeswoman Anne-Marie Devine said the car was parked on a city street bordering campus and next to the Harney science building. Initial reports indicate that the two victims were not USF students or "anyone affiliated with the university," she said.

As much as homicides are a problem (and indeed, they are), the proximity of this one to USF doesn't actually bother me too much. The victims don't appear to be affiliated with USF, and for the most part, despite being bordered by some shady neighborhoods, USF, aside from general thefts, I believe is a fairly safe neighborhood. What I mean, is that I don't anticipate this being some sort of gruesome trend. Of course you still have to remain smart about things when you're out and about. But around USF, you may occasionally walk into trouble, I don't feel as if trouble will necessarily come looking for you. I believe it's an isolated incident and will (hopefully) remain as such. SF is pretty small. Sometimes the neighborhoods mix- inevitable in an urban environment like SF. But at least we're not near Hastings.

UPDATE: The two men in the car have been identified as Isiah Turner, 34, and Andre Helton, 18, both of San Francisco. They were parked in a rental car between Kitterage and Chabot. Among the many other instantaneous questions that arise, it's unclear from the information released by police if that's where they were killed or if the victims were killed in another location.

February Bar Results Out: Not Too Shabby USF

2008-08-13T23:57:00.000-07:00

Thanks to our friends at Traditional Notions, it's come to our attention that the February CA Bar results came out and USF didn't do too shabby.

Here are the actual results for USF:

USF/ CA ABA Approved/ Overall
First Time
Took: 14/ 503/ 1499
Pass: 10/ 313/ 801
% pass: 71/ 62.2/53.4

Repeat
Took: 38/ 1328/ 3034
Pass: 19/ 577/ 996
% pass: 50/ 43.5/ 32.8

Total
Took: 52/ 1831/ 4533
Pass: 29 /890/ 1797
% pass: 56 / 48.6 / 39.6

As TN put it:

It was noted here last winter that USF beat Berkeley Law in first-time passage rate of the July 2007 California Bar Exam. The Bar is administered twice a year, and the February 2008 data are out. USF beat Boalt once again! And Hastings. And a bunch of others. As a matter of fact, we beat the rest of the ABA schools with the exception of Stanford, USC, Loyola and California Western.

Of course, a lot less people take the Bar for the first time in February, thus the numbers should be taken with a grain of salt.

What does this mean? As usual, not much. Berkeley will go on having excellent OCI prospects, taking open book exams and failing to disclose class ranks. We'll probably keep on falling in the rankings.

Indeed, these results should be taken with a grain of salt as there was a very small amount of takers, thus a very small sample pool. And statistics being what they are... just statistics. So, while I'm happy that USF did reasonably well on the February Bar exam...we're still crossing our fingers and hoping for the best for our friends who took the July exam. In all, great job to those February takers who passed! And good luck to all of those who took it in July!

California State Attorneys to Receive No Pay During State Budget Crisis?

2008-08-05T22:32:00.000-07:00

If this LA Times article has it right, then California state attorneys (AG's office), doctors, and engineers will receive no pay during California's state fiscal crisis?

According to the LA Times:

A large share of the state workforce will be exempt from Gov. Arnold Schwarzenegger's order to pay government employees the federal minimum wage until a state budget is enacted, but others -- doctors, lawyers and engineers -- will get nothing, according to documents provided by the administration Tuesday.

The State Director of Personnel issued a statement, citing White v. Davis, which says that the Controller has no "legal authority to issue warrants against the State Treasury for employee salaries except as required by federal labor law." Since state doctors, lawyers, and engineers are not covered by federal labor law, the State is free to do what they'd like with their salaries.

I'll just be honest and say that I've been kinda busy with things at work to take a good look at the actual opinion, but someone who probably does know something about this opinion believes that the state Controller will continue to issue full pay checks. Gary M. Messing, who argued in the California Supreme Court in White, representing CCPOA, writes in this blog post at PacoVilla's Corrections:

The Controller says that he will continue to issue full paychecks to State employees despite the Governor’s pending Executive Order to the contrary. That is the wisest course. The Governor errs in relying on the Supreme Court’s decision in the White v. Davis case to support his proposed reduction of State employee paychecks to the federal minimum wage in the absence of a state budget. Here is why.

Five years ago in White v. Davis, the California Supreme Court addressed a similar situation. Several taxpayer groups sued to prevent State employees from being paid in the absence of a budget. The Court ruled that the federal Fair Labor Standard Act requires prompt issuance of paychecks, which are due on the normal payday.

The rest of his post fleshes out his argument and well worth reading.

Like I said, I haven't actually read the opinion, but I trust that Mr. Messing, a labor attorney, does have a pretty decent idea of what he's talking about. So, until I'm proven wrong, I'll have to take his work that the Controller will be able to continue issuing checks.

As a closing remark, folks always used to say that people flocked to government work for job stability. Especially for attorneys. But, honestly, I've heard that the smaller the governmental organization, the better it is.

As California always seems to be in some sort of fiscal crisis, I can't imagine this being very good for attorney retention and recruitment. I mean, I can't imagine a Big Law refugee or some other private side attorney hoping to switch to the public side might think it a good idea to switch to a job where they might, literally, not make any money. Most attorneys switch to government side because of flexibility in schedule and job security with a trade off of a lower salary. But the ability to make a briefing deadline and the ability to make a mortgage payment tend to both evoke high levels of stress. Given a choice, I think I'd rather worry about making a briefing deadline than lose my house because the state can't get its act together.

Of course there will always be some people applying to be a state AG. But will this sort of political turmoil diminish the quality of candidate who applies? For sure, someone like me, a law student, with no experience will apply for a job- because, well, I have no job as of yet. But will an experienced practitioner with a family take the risk of politics getting in the way of getting a pay check? Probably not.

Indeed, there are many more considerably important issues to consider in this fiscal crisis other than smarmy attorneys, doctors, and engineers getting their relatively cushy paychecks. But, it's certainly something to think about. I hope the Pols in Sacramento can quit foolin around and get something done.

Blogging as a way of increasing a law school's academic reputation?

2008-08-01T12:53:00.001-07:00

I was reading Race to the Bottom (an excellent corporate law blog) and came across an interesting paper written by Prof. J. Robert Brown Jr., at U. of Denver Strum College of the Law. Entitled, Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings, it's premise is that law schools can increase their academic reputation through serious academic blogging. Because of the decline in influence law journals command and the entrenched nature of the academic recognition process through such scholarship, and rise in the influence of blogs, Prof. Brown suggests that law blogs may be a cost-effective way for lower ranked schools to increase their academic presence.

Well, it's an interesting theory, but I'm not sure if I buy it...yet. First is the problem with getting noticed. Even if you put out a quality product, there's no guarantee someone's going to buy it. There are a ton of bloggers out there. I suppose this is where ingenuity in finding a niche would come into play. But I'm not sure how entrepreneurial law professors are.

Second, even though blogs have risen in influence with the general public, I'm not convinced they've risen in influence with academics, the actual folks who submit their opinions to the US News and World. While blogs may be interesting to read and may bring up interesting points of views, it's the law journal articles that generally fully flesh out ideas and complex legal issues that face modern legal scholarship. As a result, this will always play a dominant role. At best, blogs will play a minimal influence.

Third, as Prof. Brown points out, while blogging isn't anywhere near as time consuming as writing a journal article, blogging still does have a sizable opportunity cost. Anyone who blogs, or has written a post can attest to that. I'm not sure if professors are willing to take that cost.

I suppose though, I'm being a little short sighted. I mean, I am blogging about an academic article, thereby spreading the word of Prof. Brown. Maybe some time down the road, after this process repeats itself, it might influence his school's rankings. So maybe there is something to this blogging thing. Wonder if my school should do it.

Arthur Zief Passes Away

2008-07-29T09:29:00.000-07:00

I thought I'd pass on the tragic news to any USF'ers that Arthur Zief, the name our library bears (well, his wife), passed away over the weekend. He was 89.

Here is a portion of the email sent to us by our school:
I wanted to share with you news that Dean Brand shared with faculty and
staff this past Saturday evening. We were incredibly saddened to learn
that Art Zief passed away this weekend.

Most of you are familiar with the incredible generosity of the Zief
family through not only the contributions to the university and law
school at-large, but in particular, through his contributions to the
Zief Law Library and his generous financial aid endowment which, through
the Zief Scholarship Program, currently supports 75 second and third
year students. For those of you who had the opportunity to personally
meet Mr. Zief, you will recall his incredible passion and vigor, despite
his nearly 90 years of age, for the law school, its mission and its
students.

And, of course, the law school was not his only passion or object of his
incredible philanthropy. Art and Dorraine Zief dedicated themselves to
giving voice as best as possible to the developmentally disabled,
building nine homes and contributing to organizations to promote their
well being. The Arthur Zief Jr. Foundation (named in honor of their
son) carries on this noble work.

I've only had one opportunity to meet Mr. Zief (and his wife) sometime last spring. The school arranged an opportunity for the Art Zief Scholarship recipients (yes, I was one of them) to meet Mr. Zief and his wife to thank him. So, 75 of us piled into Kendrick 100 and, one by one, we went down to thank him and his wife, shake their hands, and tell them a little bit about us and where we wanted to go in our careers. He appeared genuinely interested in listening to all of us and seemed fascinated by our future career plans. To be honest, Mr. Zief wasn't in the best of shape that day, but through all that, he still managed to come out and listen to a bunch of law students.

Indeed, he left a very positive impression with me, and I'm tremendously thankful I got the opportunity to meet him and his wife. They both were very down to earth people and gave selflessly to the community. You will be missed Mr. Zief.

News of the Day: John McCain Really Is A Robot

2008-07-21T15:07:00.000-07:00

Boy, folks weren't kidding when they describe him as "rough around the edges." To be sure though, "the Robot" isn't to be confused with "the Machine." I mean, I'd hate to see McCain like this. Wonder how the Robot would do at Janet Reno's Dance Party?

Wal Mart to Customers: Keep Your Monkey Where It Belongs!

2008-07-17T15:12:00.000-07:00

Well, I kept it tame, but feel free to insert your own monkey jokes where appropriate. This might be the lawsuit of the day: woman sues Wal Mart (and her local health agency and Cox Health Systems) for discriminating against her and her monkey, a 10 year old macaque, named Richard [insert additional joke]. According to the Kansas City Star:

Debby Rose of Springfield said in the lawsuit that the 10-year-old bonnet macaque helps curb a social anxiety disorder that can cause her to have panic attacks in public.

The suit contends the Springfield-Greene County Health Department lacked the authority to decide that Richard is not a service animal under the Americans with Disabilities Act.

Health officials in 2006 sent letters to restaurants and grocery stores, advising them not to let Rose in with the monkey.

Rose also alleges she was denied access to Cox Health Systems facilities.

Hmm interesting. I'll be honest, I've never seen anyone walking around with an actual monkey. And in middle America, no less. But apparently Cox Health Systems and Wal Mart aren't her only detractors. Coincidentally today, I happened upon former US Senator George Allen and, being a prominent former politician, I asked his opinion. Defending the retail giant, Mr. Allen said "people who walk around with macaques aren't 'real' Americans." His tone seemed angry. Though I could see him being bitter towards macaques. Mr. Allen then asked if I'd like to "super size" my meal for only $0.49 more. I declined.

USF Law Prof. Richard Leo Knows Something About Police Interrogation

2008-07-16T22:15:00.000-07:00

USF Law Professor Richard Leo was on Pasadena NPR affiliate, KPCC. A guest on the Pat Morrison show, Prof. Leo spoke on the topic of police lying to suspects during interrogations. It's a pretty interesting listen. For those who may have had Prof. Leo for Crim Law, he comes off much better talking about his field of expertise. I rather enjoyed it. Here is the link. Scroll down to Wednesday, July 2. The segment is entitled, "Police Interrogations: Is it okay to lie?"

Omar Khadr Interrogation Video Released

2008-07-16T13:39:00.000-07:00

Well, for those who follow the Gitmo action, the interrogation video of Omar Khadr, the suspected terrorist picked up when he was 15 years old, was released by demand of the Canadian Supreme Court.

Here is a 10 minute clip. There's supposed to be 7 hours released at some point in time.

(a picture of Omar Khadr, then 15, before his capture)

From the New York Times: (and, more extensively, from the Canadian Broadcasting Corporation)

Mr. Khadr, just 16 years old at the time of the taping, in February 2003, swung from calm and indifference to rage and grief during four days of interrogations in the recordings, which his Canadian lawyers released.

The recordings, turned over to the defense under a Canadian court order, provide the most extensive videotaped images from inside Guantánamo Bay yet seen. In them, Mr. Khadr, now the last Western citizen held there, is seen pleading with a Canadian intelligence agent for help. At one point, the recording shows him displaying chest and back wounds that had still not completely healed months after his capture in Afghanistan.

The seven hours of recordings were made by the United States military and given to Mr. Khadr’s Canadian lawyers by the Canadian Security Intelligence Service under the terms of an order by Canada’s Supreme Court.

They show Mr. Khadr, who is accused of killing a United States soldier in Afghanistan in battle in July 2002, being questioned by an unidentified member of the Canadian intelligence agency. A Canadian diplomat and a third person, apparently an American official, were also present.

For national security reasons, the audio was removed from several parts of the recordings, and the officials’ faces were electronically obscured by black blobs.

Mr. Khadr, a Canadian, maintains he was abused by American interrogators in Afghanistan and at Guantánamo Bay. It appears from the recordings, as well as from written documents of the interrogations that were released last week, that Mr. Khadr initially believed that the Canadian agent had come to help him. But he eventually seemed to realize that the agent was present only to extract information.

Man, to be 15 and captured by US armed forces. And then interrogated at age 16 at Gitmo. On the one hand, I feel pretty bad for him. I'm pretty sure I couldn't handle something like that when I was that young (or at my current age). On the other hand... he is a suspected terrorist. They come in all shapes and sizes. Interrogations are part of the process. Still though, it's no justification for torture (if the accusations are true). It'll be interesting to see where this goes and the public reaction that results.

GPA Rankings for USF Law, Spring 2008

2008-07-04T22:20:00.000-07:00

In continuing the tradition of Greg at Otherwise Occupied, we are posting the USF Law GPA breakdown. As Greg is graduating and will no longer be posting GPA rankings, we'll be compiling the GPA stats and presenting them to the internet world. Congrats Greg, and good luck on the bar!

This table shows the breakdown of percentile ranks by GPA for the University of San Francisco School of Law as of the Spring 2008 semester, i.e., as of the end of the 2007-2008 school year.

	5%	10%	15%	20%	25%	33 1/3%	40%	50%	60%	80%
1FT & 1PT = 236	3.63 & above	3.46 - 3.62	3.38 - 3.45	3.31 - 3.37	3.20 - 3.30	3.09 - 3.19	3.02 - 3.08	2.87 - 3.01	2.71 - 2.86	2.38 - 2.70

2FT, 2PT & 3PT = 228	3.55 & above	3.42 - 3.54	3.33 - 3.41	3.21 - 3.32	3.16 - 3.20	3.06 - 3.15	2.99 - 3.05	2.84 - 2.98	2.75 - 2.83	2.55 - 2.74

3FT, 4FT & 4PT = 217	3.54 & above	3.43 - 3.53	3.38 - 3.42	3.29 - 3.37	3.23 - 3.28	3.15 - 3.22	3.07 - 3.14	3.01 - 3.06	2.93 - 3.00	2.72 - 2.92

NRA v. San Francisco and SAF v. Chicago complaints

2008-06-27T19:02:00.000-07:00

Well, now that DC v. Heller was handed down by SCOTUS, all hell will be breaking loose in order to push the Heller opinion to its limits. Right on cue, the NRA (and Second Amendment Foundation) has filed suits in multiple cities challenging their gun laws: Chicago, Oak Park, Evanston, Morton Grove, and my own special city of San Francisco. I couldn't find the suburban complaints, but I found the Chicago and San Francisco complaints fairly easily. As SCOTUS blog points out, this is only a complaint, so there isn't a fleshed out argument in defense of the Second Amendment just yet. But it'll be interesting to see where the arguments go.

Even still, the complaints are interesting. The Chicago complaint revolves around three Chicago gun ordinances (1) ban on hand guns (2) registration of all guns, and (3) if a gun owner's registration lapses, the gun is left unregistrable. The plaintiffs are folks who either (i) have to store their handguns outside the city limit or (ii) have had their rifle registration lapsed. Plaintiffs assert that (A) the Second Amendment be incorporated as against the states via the Fourteenth Amendment, (B) the handgun ban, registration requirement, and registration lapse penalty deprives a person the right to possess the handgun within city limits.

The San Francisco complaint seems like more of the same. The SF attack is ban of firearms in SF public housing. Agreeing to the firearms ban is a stipulation to signing a lease agreement to live in SF public housing. It features one plaintiff, anonymous, who is a homosexual who keeps a gun for defensive purposes against people who might want to harm him for his sexual orientation. The other plaintiffs are just, assumedly, heterosexual folks who want firearms for defensive purposes unrelated to assaults on their sexual orientation. Essentially, they are asking for relief from the firearms ban.

From being initially hesitant about bringing DC v. Heller, looks like the NRA/SAF is taking full advantage of its newfound situation. Despite what they believe Heller might have said, one thing it didn't say was that the right to own a gun was incorporated onto the states via the Fourteenth Amendment. Thought Volokh Conspiracy makes a good argument for it.

The plaintiffs in the San Francisco case are being represented by C.D. Michel, of Trutanich, Michel, LLP.

And the plaintiffs in Chicago are being represented by none other than Alan Gura, of Gura & Possessky, PLLC. The very same attorney who successfully argued Heller in front of SCOTUS. Gee, for all the talk about Heller being a "middle of the road" opinion, looks like we know who the real winner in Heller is.

CORRECTION: As was correctly pointed out to me in the comments section by the Webmaster at ChicagoGunCase.com, the NRA has nothing to do with the Chicago suit. Rather, the Second Amendment Foundation is leading the charge on that one. Thank you Mr. Taff.

UPDATE: SCOTUS Blog has posted the additional complaints for the three Chicago suburb gun cases: Evanson, Ill. Oak Park, Ill. Morton Grove, Ill.

USF Law Makes the News in Bear Sterns Case

2008-06-20T16:27:00.000-07:00

Well, not really. But, it's come to my attention that former Bear Sterns hedge fund manager/ current 10b-5 violator suspect, Matthew Tannin is a 1994 law grad of USF. Who knew? Gives hope to all of us aspiring bond traders... I suppose it's nothing to be proud of. But proof that USF Law grads can change the world.

Mr. Tannin now joins the ranks of despised Wall St'ers: Michael Milken (Berkeley undergrad/Wharton MBA), Frank Quattrone (Wharton undergrad/Stanford MBA), Henry Blodget (Yale undergrad), Ivan Boesky (Michigan St., JD), and, of course, Gordon Gekko (City College). Well done, sir! And welcome to the club.

US v. Bear Sterns Hedge Fund Managers

2008-06-19T20:39:00.000-07:00

Today, the United States arrested Ralph Cioffi and Matthew Tannin, hedge fund managers for Bear Sterns. They ran two funds, the High Grade Structured Credit Strategies Master Fund (High Grade fund) and High Grade Structured Credit Strategies Enhanced Master Fund (Enhanced fund). The funds were leveraged and invested, according to the indictment, in primarily collateralized debt obligations (CDOs).

Although the complaint does a terrible job of explaining a CDO, the basic premise (really basic) is this:

A collateralized debt obligation seeks to take a debt (both principal and interest) and make it attractive to investors. As a basic premise, the one thing investors like is consistency. Loan repayments, such as homes, are notorious for being inconsistent. People pay back their loans too early, or the default, etc. This means that an investor, who purchases a bond, can't depend on a steady stream of income. As such, pre creation of CDOs, mortgage loans were a poor investment.

In the 80s, Salomon Brothers (now part of Citi Group) found a way to package mortgage loans and make rain come from the sky. (for a more detailed explanation, I recommend reading, Lair's Poker). They did this by creating CDOs. CDOs are mortgage bonds. Massive groups of mortgages are pooled together and divided into groups, called "tranches." There are potentially an unlimited number of tranches, but the tranches are generally split into durations, similar to bonds. For example 3-5 years, 7-10 years, and 15-20 years.

The shorter duration CDOs receive all the early pre-payments (those who pay off their mortgage early) and the longer CDOs receive all the regular payments (those people who keep the whole mortgage to the end). Naturally, the longer someone keeps a mortgage, the more likely that person is likely to default. As such, investors with the longer durational CDO take bigger risks. Naturally, their CDOs receive higher interest rates and shorter CDOs receive lower interest rates. The CDOs are priced accordingly.

OK, now that we know what they were investing in, we can talk about how they did it. CDOs don't really bring in a lot of money on a small scale- i.e. dollar for dollar. In order to generate returns, the managers leveraged their investment. This means they borrowed the money, using the fund money as their margin requirement. The complaint suggest they leveraged up to 20 times the fund's investment money. Essentially, the managers were playing with money they didn't have. If their fund did well, then they would be rewarded handsomely. If not....bankruptcy. [it's the difference between 1x20 (fund does well) and 1x(-20)(fund not so good)].

So, as you can guess, things went bad, and eventually the fund went "el busto" and lost the funds' combined value of $1.4 billion. The indictment states that the managers made misrepresentations to investors (huge institutional investors, the type who can invest $5-$10 million, not folks who can only invest $100,000), by saying they thought the fund was looking at sunny skies, when, in fact, it was thunder and lightning was all around. In short, the Feds are charging the duo with breach of fiduciary duty to its investors.

The breach of fiduciary duty standard, essentially, states that those with the duty have to act with reasonable care towards those who they have a duty towards. They have to have act in their best interests, and must act in good faith.

The counts in the complaint are as follows:

Count 1 - Conspiracy to commit securities fraud and wire fraud
Count 2 - Securities fraud - High Grade Fund
Count 3 - Securities fraud - Enhanced Fund
Count 4 - Securities fraud - Ralph Cioffi, insider trading
Count 5-9 - Wire fraud

Looking at the indictment...I kinda think its weak. There are a lot of allegations that are based on partial comments. The basic pattern is that the indictment sets up a situation, and then throws in a partial comment, like 5-6 words, as proof. The problem is that these quotes can easily be taken out of context and manipulated. As such, it's kinda hard to accept them as weighty evidence. Maybe the actual trial will have real evidence. But from what I can see, it's kinda thin.

Secondly, there is a clear difference between making a bad business decision and acting in bad faith. There doesn't appear to be a clear plan that that was what they were up to. I think they might have made some trades, those went sour, they, like any trader, might try and trade their way out, and instead, ended up making it worse (see Long Term Capital Management- which lost $4.5 billion in 5 weeks- a pretty similar story as these two defendants, yet no criminal charges against them, see When Genius Failed). I don't think this qualifies as bad faith. It's more consistent with someone, rather than being sure of the market, is confused with the situation. It's just a bad business decision.

As for the insider trading charge against Mr. Cioffi, well, that seems a little more tenable. I could buy that before I thought there was a 10b-5 breach with the actual funds. If he did move his money without disclosing to his investors, that does cause some concern. Even if he moved his money for legitimate reasons, it still needs to be disclosed.

I do have a question about their redemption policies though. I'm not sure why the investments weren't able to be redeemed. It's possible, like in LTCM, a condition of investment was that the shares could not be redeemed for a set period of time. But that's something I'm sure the evidence will show.

There are some other problems I have with this indictment, outside of the law. First, it makes the investors out to be like they were just some innocent folks who got boondoggled by these fast talking New Yorker, Wall St. types. Absolutely ridiculous. Those who lost money in the fund were institutional investors who, likely had billions of dollars to play with. You don't get into a position of being able to trade in blocks of $57 million by happenstance. You ain't no rube. They were sophisticated investors who had the tools to make a sound analysis. They just made a bad investment. It happens. Lately, it's been happening a lot. But just because they made a poor investment, doesn't mean that someone should be held criminally liable for it.

Second, this is a terrible charade. Hundreds of billions of dollars, potentially trillions of dollars of investor value have been post in these credit crisis. I think it's silly that these two managers be the symbol of this mess. Do the Feds intend to go after Morgan Stanley, Citi, Goldman, JP Morgan, and other banks who lost out? They all contributed. They all had the same sales pitches. Feds might as well put out some more indictments. Too bad Elliot Spitzer has such a prostitute problem.

Third, I think this sends a bad message. It sends the message that these two men are responsible for the credit crisis when, instead, it was ALL of America. We, with our copious consumption, let this happen. If people hadn't hid their eyes to the realities of their mortgages, we all wouldn't be in this mess. If, instead of refinancing to buy tvs and cars, people had simply built up the equity and paid of their homes, the crush in equity might not be as great. If people hadn't simply bought homes with the intent to flip, it might not have driven prices up.

UPDATE: I just read about the 400 arrests regarding mortgage fraud on the ground level. Dubbed operation "Malicious Mortgage" (what a lame name), the FBI has investigated 144 mortgage fraud cases leading to 406 arrests over the past few months. Way to go FBI! Let's keep up the good work. I'm glad the FBI is targeting the fraud at all levels, and not just at the trading level. Spread the wealth.

True, Wall St. folks provided the tools for these people to take out these loans, but that was it. Main St. still needed to take out the loans. In short, Wall St. was merely the middle man. As everyone was involved in this collapse, we should all be held accountable, not just these hedge fund managers.

In sum, sure, I think there is the possibility of misrepresentations and insider trading, etc., but I hope the Feds have more evidence. I guess, by their nature, indictments are pretty slim. But with such a high profile case, you'd think the Feds would want to come out "guns a blazing." Here, it seems the brought a water pistol to a knife fight. Since history always seems to repeat itself on Wall St., remember that the Feds couldn't convict Frank Quattrone on the basis of emails. Pretty similar circumstances here. The Feds have a tough road ahead of them.

NASCAR Workers Like to Make Crude Jokes

2008-06-12T11:38:00.000-07:00

So it's finally come out: NASCAR workers like to make crude jokes about sex and race. Who knew? Who knew that a business whose drivers and fans, being predominately White and male (and probably not the most sophisticated) would have employees were...well, White, male, and not particularly sophisticated. And who would have thought they wouldn't go around making crude sexual and racial jokes?

Well, apparently someone got fed up with it and filed a sexual harassment and racial discrimination lawsuit. In it, plaintiff, Mauricia Grant, a $30,000/season NASCAR Official (Technical Inspector), responsible for checking race cars before, during and after each race to ensure safety and full compliance with NASCAR rules, has filed a sexual harassment and racial discrimination complaint to the tune of a cool $225 million. According to the complaint, Ms. Grant was NASCAR's first African American official.

Among the many instances in which she was the butt of a discriminatory joke:

49. Throughout her employment from approximately January 2005 until her unlawful termination on or about October 27, 2007, Plaintiff MAURICIA GRANT was dubbed with a series of racist and racially degrading nicknames, including: “Mohammed;” “Nappy Headed Mo;” “Queen Sheba;” “Al Qaeda;” “Black Sisters Revenge;” “Mo from the Block;” “Molicious;” and “Simpleton.”

50. Throughout her employment from approximately January 2005 until her Wrongful termination on or about October 27, 2007, approximately weekly during the NASCAR Busch Series season, Plaintiff MAURICIA GRANT’s White co-workers made ignorant racist comments regarding her pigment and hair, such as: “You can’t possibly sunburn so you should work out in the sun!”; “How do you fix that hair?”; and “How come the palms of your hands are white?” Plaintiff was shocked.

60. During approximately the week of April 8, 2006 while working the Texas
Motor Speedway, Plaintiff MAURICIA GRANT overheard Official Carl Simmons mention to Official Dennis Dillard his seeing a car hood ornament resembling Fred Flinstone. When Carl Simmons responded that he could not remember the hood, Official Dennis Dillard replied: “Which hood, your Klan hood?” The group of White Officials laughed except Carl Simmons, who turned red and looked suspiciously guilty.

64. On or about the week of May 5, 2006, while working the race at the Richmond International Speedway in Richmond, Virginia, Plaintiff MAURICIA GRANT drove with Director Scott French to a store to purchase some work pants for Official Todd Shultz. During this trip, Mr. French “confided” that his step-mother was Black and that he “grew up in the hood” and loved hip-hop, and then said: “Let me mentor you. It’s tough being in the garage with all these guys.” Plaintiff felt relieved to know that someone in a position of authority not only was not a racist, but could actually relate to Black people. In turn, Plaintiff MAURICIA GRANT disclosed that she was raised with three siblings by a single mom in the projects of the Bronx. Much to her disgust, Plaintiff later discovered that Mr. French had lied: he did not have any Black relatives nor did he ever live in an urban, inter-racial neighborhood.

81. On or about the week of July 7, 2007 while they were working at the Daytona
International Speedway, White Official Bud Moore asked Plaintiff MAURICIA GRANT how it felt to be Black. When Plaintiff responded that being Black is “a privilege,” Bud Moore looked aghast and asked her: “How could you possibly feel that being Black is a privilege?” When Plaintiff MAURICIA GRANT was non-responsive, Moore feigned exaggerated confusion, wondering aloud in Plaintiff’s presence: “How can she be proud of being Black?”

86. On or about November 21, 2007, Plaintiff MAURICIA GRANT received a text
message from White Official David Duke which read:
I love all Yall mofos
i am that nigga
HAHAHA
Holla
PIMPALICIOUS
Plaintiff was offended.

First, before I get into my thoughts of the complaint, I think it's incredibly ironic that
one of the alleged offenders is fellow technician by the name of David Duke.

Second, I love the way jokes are explained in complaints. No set up or anything, just straight sanitation. And told and told as curtly as possible.

Those are a few of the many allegations in the complaint. I'm not entirely sure how sexual harassment and racial discrimination suits work, but the complaint seems almost entirely based on circumstantial evidence. It seems the plaintiff just seems to be the butt of a lot of jokes- racial and sexual ones, albeit. There doesn't seem to be a systematic method of organizational discrimination - like her not being promoted, etc. No paper trail. Which doesn't necessarily make the situation right, per se, but I'm not sure if it meets the right legal standard. Again, I'm not sure what standard is necessary, but I would hope it relies a lot more on allegations.

Although Ms. Grant does a fairly good job of documenting her verbal discrimination, they're just jokes....which they might have a hard time proving in court. Unless there is video or something to that effect, it's all circumstantial evidence, so it'll come down to a "he said-she said." I wonder how likable a plaintiff she is to a New York jury (compliant was filed in the Southern District of New York)?

I suppose the best comparison might be to that of the sexual harassment complaint against Isiah Thomas and the New York Knicks. Of course, one difference between this case and the Isiah case is that here, the suit is for $225 million, and the Isiah case was for $10 million (Isiah lost). It kinda makes me suspect the sexual and racial harassment, though probably did happen in some form, is probably a weak legal case, and Ms. Grant's attorneys are using the enormity of the damages amount to garner press, which it did, so that it'll force a settlement for a (likely) significantly reduced amount. But, even a 90% discount, so - $22.5 million, is tremendously high. In short, the damages asked of $225 million is leverage. [Although I can imagine the frat boy mentality at Madison Square Garden to be similar to NASCAR, I'm not entirely sure what the facts were in the Isiah case, so I can't really make factual comparisons. Though I'm sure someone in the media will.]

In the end, though I do agree that racial discrimination and sexual harassment have no place anywhere, I'm not sure if this particular case is that strong. If it actually goes to court, which I doubt, the facts discovered will likely show the weakness of her allegations. Remember, anyone can make a complaint. It takes a lot more to prove it in trial. Ms. Grant is likely just extorting NASCAR - indeed the compliant states NASCAR does over $2 billion in merchandising revenues annually. We'll see where it goes.

Judge Kozinski Likes Animal Porn

2008-06-11T17:03:00.000-07:00

So, I'm sure you've all heard about this; but if you haven't: Chief Judge of the 9th Circuit, Alex Kozinski was discovered to have quite a collection of porn on his personal web page (obviously they've been taken down). And not just any porn, but PORN. Per the LA Times, who broke the story, Kozinski had no less than:

- a photo of naked women on all fours painted to look like cows
- a video of a half-dressed man cavorting with a sexually aroused farm animal
- a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair
- images of masturbation, public sex and contortionist sex
- a slide show striptease featuring a transsexual
- a folder that contained a series of photos of women's crotches as seen through snug fitting clothing or underwear
- themes of defecation and urination, though they are not presented in a sexual context

According to the story, Judge Kozinski considered the material "interesting or funny."

Now, personally, I find this all very humorous. In the big picture, this really isn't anything more than some supremely awesome gossip. The article seemed to suggest there was a controversy regarding whether Judge Kozinski was going to recuse himself from an obscenity case. I personally don't he should recuse himself. As someone I know put it, "no justice is served by having prudes hear obscenity cases." I think that's the line I'm going to stick with.

Issues With Your Student Loans?

2008-06-11T08:55:00.001-07:00

I got this email the other day from a classmate who just graduated concerning her student loans. And, though not all of us may be confronting this right now, we'll likely be doing so in the near future. Her info seemed pretty well researched, so I thought I'd share it with you all:

Hi all,

For those of you who have taken out loans as a consequence of attending law school, I am volunteering some information. If you don't have loans disregard this email.

1. You may not have received any loan payment notices because the school has mistakenly assigned a graduation date of 2013 to all law students for all loan purposes. The law school financial aid office said it is an error by the undergrad financial aid office. They are "looking into it." According to the Direct Loans (Federal) customer service department at 1-800-848-0979, payments for Direct Loans would normally commence June 21, 2008. However, due to the school error, payment notices have not been sent. Although many of us would love to have a 5 year grace period on our loans, I am not counting on the school's mistake to cover my loan liability. In addition, even if the loans are magically deferred, the interest is not (see #2.)

2. Economic hardship: for those of you who are not currently working and need additional time before making Direct Loan payments, you can request up to a 12 month deferment. You can go to www.dlservicer. ed.gov in order to download the form or call the number above in order to have one mailed. You can also see a summary of your Direct Loans and a payment schedule. In addition to asking for an economic hardship deferment, you can also request the loan to be extended in order to lower monthly payment. The loan is automatically set up as a ten year payment plan.

Note: automatic deferment can vary depending on whether you consolidated during school or not?
Another note: keep in mind that at any time during the life of any of your loans, you can call and ask for special consideration/ deferment/ lowered payments for any reason. Most loan providers would rather have some payment arrangement, than have someone default on their loan. It is up to the provider to give special consideration, etc. It is wise to ask before you fall behind!

3. Another helpful website is www.nslds.ed. gov. You can see an overview of all Direct Loans (including Plus Loans) and Standford Loans.

4. For those of you with private loans, the Access Group phone number is 1-800-282-1550. According to Access's customer service department, the private loans are automatically set up as 20 year loans (I imagine their interest is in raking in more interest, rather than in graciously lowering our monthly payments) and the private loans will automatically be deferred for 9 months from our date of graduation. Note: you may have private loans with a different provider, Access Group is just one of many.

5. A helpful resource is The Graduate Leverage Team, 1-877-844-9580 www.graduateleverage.com. They can give advice on consolidation, etc. Apparently, there is going to be a significant drop in interest rates in July (see their website for details.)

6. If you move, remember to update your address information for every loan provider. If your deferment ends/payments start and the providers do not have your current address you could decrease your credit score by missing payments.

Signed,

Law School Survivor

What You Missed While Paying Attention to American Sports: British Shin-Kicking Championships

2008-06-05T15:45:00.000-07:00

While everyone was out paying attention to American sports like the NBA Finals, most people forgot to pay attention to a particularly compelling sport in the world: shin kicking. (Courtesy of Epic Carnival) Yup. High drama, high skill, high stakes. Take a look for yourself. (I think the hay to cover their shins is a nice touch). Puts MMA to shame.

Hillary Doesn't Concede. Obama Doesn't Care.

2008-06-03T20:46:00.000-07:00

Well folks. This is it. Barack Obama has claimed the Democratic nomination. The first African American to claim this distinct honor. Now, from those (few) of you who have been reading this blog, you'll know that I initially supported Hillary Clinton, but as it became apparent Hillary wasn't going to be able to unite the Democratic party, switched over to supporting Mr. Obama. That being said, I watched Mr. Obama give his speech tonight (more on that later) and I was actually pretty happy for both he and the party.

And yes, Hillary, stubbornly, did not concede the nomination. And no, despite what the chattering class says, it doesn't matter. It doesn't hurt the party. Either you were going to support Mr. Obama, and rally around the him for the good of the party, or you weren't. It had been apparent for quite sometime that Mr. Obama was going to win the nomination. I don't think Hillary giving her approval was going to change that.

Back to the speech. He gave a really good speech. Of course, there were moments when I felt inspired by his command of the audience and his communication skills, but, I wasn't...impressed. I think it's because I've watched so many of his speeches, and so recognize his speech pattern and his message that it doesn't quite ring the same bell. But, it was still an effective speech. He got out his message, gave his accolades to Hillary in an attempt to win over her voters, and compared John McCain to George W. Bush. Everything that he was supposed to say. And he said it all with that long, draw out flair of his, accompanied by his "thousand yard" stare switching back from the left side of the audience to the right side of th audience (no doubt to see the teleprompters stationed through out the building.)

He seemed presidential in stating, “Tonight, we mark the end of one historic journey with the beginning of another — a journey that will bring a new and better day to America. Because of you, tonight, I can stand before you and say that I will be the Democratic nominee for president of the United States.” And , indeed, I hope presidential is what Mr. Obama will become.

But the road to that point will be long. I have no doubt in my mind the difficulties that Mr. Obama will face against the Republican political machine. This election year was supposed to be a cake walk for the Democrats yet the most recent polls show a McCain-Obama match up a statistical tie.

Republicans will, no doubt, hammer in the points that have been haunting Mr. Obama: inexperience, personal ties (well, now severed, but that's irrelevant) to his church, etc. I'm also a little afraid of the things that might also pop up later. I don't think anyone believes he's been as well vetted as Mr. McCain. We know all of Mr. McCain's secrets (well, except the true extent his wife's tax returns) but there are still things about Mr. Obama that could exist.

Even still, I'm not sure this will even matter. I think the key to an Obama victory is the same strategy that got President Bush elected: turn out the vote. I think those factors are in favor for Mr. Obama (I think Hillary supporters will come to their senses just like I did, and just like Republicans who did not support McCain but now do, did). It'll be a helluv a ride for sure. And I intend to be there. And I hope you will as well. Democrats, Independents, and even Republicans, I think we can do it. In the words of Mr. Obama, as he closed his victory speech, as his voice rose in rolling, rhythmic cadence over the thunderous St. Paul crowd, "America, this is our moment. This is our time... Our time to offer a new direction for the country we love.... when we came together to remake this great nation so that it may always reflect our very best selves, and our highest ideals." Yes, we can.

Obama's Victory Speech in St. Paul + Video

2008-06-03T20:33:00.000-07:00

Personally, I'm not a big fan of the U2 song they use, but...whatever. Enjoy some history:

Tonight, after fifty-four hard-fought contests, our primary season has finally come to an end.

Sixteen months have passed since we first stood together on the steps of the Old State Capitol in Springfield, Illinois. Thousands of miles have been traveled. Millions of voices have been heard. And because of what you said - because you decided that change must come to Washington; because you believed that this year must be different than all the rest; because you chose to listen not to your doubts or your fears but to your greatest hopes and highest aspirations, tonight we mark the end of one historic journey with the beginning of another - a journey that will bring a new and better day to America. Tonight, I can stand before you and say that I will be the Democratic nominee for President of the United States.

I want to thank every American who stood with us over the course of this campaign - through the good days and the bad; from the snows of Cedar Rapids to the sunshine of Sioux Falls. And tonight I also want to thank the men and woman who took this journey with me as fellow candidates for President.

At this defining moment for our nation, we should be proud that our party put forth one of the most talented, qualified field of individuals ever to run for this office. I have not just competed with them as rivals, I have learned from them as friends, as public servants, and as patriots who love America and are willing to work tirelessly to make this country better. They are leaders of this party, and leaders that America will turn to for years to come.

That is particularly true for the candidate who has traveled further on this journey than anyone else. Senator Hillary Clinton has made history in this campaign not just because she's a woman who has done what no woman has done before, but because she's a leader who inspires millions of Americans with her strength, her courage, and her commitment to the causes that brought us here tonight.

We've certainly had our differences over the last sixteen months. But as someone who's shared a stage with her many times, I can tell you that what gets Hillary Clinton up in the morning - even in the face of tough odds - is exactly what sent her and Bill Clinton to sign up for their first campaign in Texas all those years ago; what sent her to work at the Children's Defense Fund and made her fight for health care as First Lady; what led her to the United States Senate and fueled her barrier-breaking campaign for the presidency - an unyielding desire to improve the lives of ordinary Americans, no matter how difficult the fight may be. And you can rest assured that when we finally win the battle for universal health care in this country, she will be central to that victory. When we transform our energy policy and lift our children out of poverty, it will be because she worked to help make it happen. Our party and our country are better off because of her, and I am a better candidate for having had the honor to compete with Hillary Rodham Clinton.

There are those who say that this primary has somehow left us weaker and more divided. Well I say that because of this primary, there are millions of Americans who have cast their ballot for the very first time. There are Independents and Republicans who understand that this election isn't just about the party in charge of Washington, it's about the need to change Washington. There are young people, and African-Americans, and Latinos, and women of all ages who have voted in numbers that have broken records and inspired a nation.

All of you chose to support a candidate you believe in deeply. But at the end of the day, we aren't the reason you came out and waited in lines that stretched block after block to make your voice heard. You didn't do that because of me or Senator Clinton or anyone else. You did it because you know in your hearts that at this moment - a moment that will define a generation - we cannot afford to keep doing what we've been doing. We owe our children a better future. We owe our country a better future. And for all those who dream of that future tonight, I say - let us begin the work together. Let us unite in common effort to chart a new course for America.

In just a few short months, the Republican Party will arrive in St. Paul with a very different agenda. They will come here to nominate John McCain, a man who has served this country heroically. I honor that service, and I respect his many accomplishments, even if he chooses to deny mine. My differences with him are not personal; they are with the policies he has proposed in this campaign.

Because while John McCain can legitimately tout moments of independence from his party in the past, such independence has not been the hallmark of his presidential campaign.

It's not change when John McCain decided to stand with George Bush ninety-five percent of the time, as he did in the Senate last year.

It's not change when he offers four more years of Bush economic policies that have failed to create well-paying jobs, or insure our workers, or help Americans afford the skyrocketing cost of college - policies that have lowered the real incomes of the average American family, widened the gap between Wall Street and Main Street, and left our children with a mountain of debt.

And it's not change when he promises to continue a policy in Iraq that asks everything of our brave men and women in uniform and nothing of Iraqi politicians - a policy where all we look for are reasons to stay in Iraq, while we spend billions of dollars a month on a war that isn't making the American people any safer.

So I'll say this - there are many words to describe John McCain's attempt to pass off his embrace of George Bush's policies as bipartisan and new. But change is not one of them.

Change is a foreign policy that doesn't begin and end with a war that should've never been authorized and never been waged. I won't stand here and pretend that there are many good options left in Iraq, but what's not an option is leaving our troops in that country for the next hundred years - especially at a time when our military is overstretched, our nation is isolated, and nearly every other threat to America is being ignored.

We must be as careful getting out of Iraq as we were careless getting in - but start leaving we must. It's time for Iraqis to take responsibility for their future. It's time to rebuild our military and give our veterans the care they need and the benefits they deserve when they come home. It's time to refocus our efforts on al Qaeda's leadership and Afghanistan, and rally the world against the common threats of the 21st century - terrorism and nuclear weapons; climate change and poverty; genocide and disease. That's what change is.

Change is realizing that meeting today's threats requires not just our firepower, but the power of our diplomacy - tough, direct diplomacy where the President of the United States isn't afraid to let any petty dictator know where America stands and what we stand for. We must once again have the courage and conviction to lead the free world. That is the legacy of Roosevelt, and Truman, and Kennedy. That's what the American people want. That's what change is.

Change is building an economy that rewards not just wealth, but the work and workers who created it. It's understanding that the struggles facing working families can't be solved by spending billions of dollars on more tax breaks for big corporations and wealthy CEOs, but by giving a the middle-class a tax break, and investing in our crumbling infrastructure, and transforming how we use energy, and improving our schools, and renewing our commitment to science and innovation. It's understanding that fiscal responsibility and shared prosperity can go hand-in-hand, as they did when Bill Clinton was President.

John McCain has spent a lot of time talking about trips to Iraq in the last few weeks, but maybe if he spent some time taking trips to the cities and towns that have been hardest hit by this economy - cities in Michigan, and Ohio, and right here in Minnesota - he'd understand the kind of change that people are looking for.

Maybe if he went to Iowa and met the student who works the night shift after a full day of class and still can't pay the medical bills for a sister who's ill, he'd understand that she can't afford four more years of a health care plan that only takes care of the healthy and wealthy. She needs us to pass health care plan that guarantees insurance to every American who wants it and brings down premiums for every family who needs it. That's the change we need.

Maybe if he went to Pennsylvania and met the man who lost his job but can't even afford the gas to drive around and look for a new one, he'd understand that we can't afford four more years of our addiction to oil from dictators. That man needs us to pass an energy policy that works with automakers to raise fuel standards, and makes corporations pay for their pollution, and oil companies invest their record profits in a clean energy future - an energy policy that will create millions of new jobs that pay well and can't be outsourced. That's the change we need.

And maybe if he spent some time in the schools of South Carolina or St. Paul or where he spoke tonight in New Orleans, he'd understand that we can't afford to leave the money behind for No Child Left Behind; that we owe it to our children to invest in early childhood education; to recruit an army of new teachers and give them better pay and more support; to finally decide that in this global economy, the chance to get a college education should not be a privilege for the wealthy few, but the birthright of every American. That's the change we need in America. That's why I'm running for President.

The other side will come here in September and offer a very different set of policies and positions, and that is a debate I look forward to. It is a debate the American people deserve. But what you don't deserve is another election that's governed by fear, and innuendo, and division. What you won't hear from this campaign or this party is the kind of politics that uses religion as a wedge, and patriotism as a bludgeon - that sees our opponents not as competitors to challenge, but enemies to demonize. Because we may call ourselves Democrats and Republicans, but we are Americans first. We are always Americans first.

Despite what the good Senator from Arizona said tonight, I have seen people of differing views and opinions find common cause many times during my two decades in public life, and I have brought many together myself. I've walked arm-in-arm with community leaders on the South Side of Chicago and watched tensions fade as black, white, and Latino fought together for good jobs and good schools. I've sat across the table from law enforcement and civil rights advocates to reform a criminal justice system that sent thirteen innocent people to death row. And I've worked with friends in the other party to provide more children with health insurance and more working families with a tax break; to curb the spread of nuclear weapons and ensure that the American people know where their tax dollars are being spent; and to reduce the influence of lobbyists who have all too often set the agenda in Washington.

In our country, I have found that this cooperation happens not because we agree on everything, but because behind all the labels and false divisions and categories that define us; beyond all the petty bickering and point-scoring in Washington, Americans are a decent, generous, compassionate people, united by common challenges and common hopes. And every so often, there are moments which call on that fundamental goodness to make this country great again.

So it was for that band of patriots who declared in a Philadelphia hall the formation of a more perfect union; and for all those who gave on the fields of Gettysburg and Antietam their last full measure of devotion to save that same union.

So it was for the Greatest Generation that conquered fear itself, and liberated a continent from tyranny, and made this country home to untold opportunity and prosperity.

So it was for the workers who stood out on the picket lines; the women who shattered glass ceilings; the children who braved a Selma bridge for freedom's cause.

So it has been for every generation that faced down the greatest challenges and the most improbable odds to leave their children a world that's better, and kinder, and more just.

And so it must be for us.

America, this is our moment. This is our time. Our time to turn the page on the policies of the past. Our time to bring new energy and new ideas to the challenges we face. Our time to offer a new direction for the country we love.

The journey will be difficult. The road will be long. I face this challenge with profound humility, and knowledge of my own limitations. But I also face it with limitless faith in the capacity of the American people. Because if we are willing to work for it, and fight for it, and believe in it, then I am absolutely certain that generations from now, we will be able to look back and tell our children that this was the moment when we began to provide care for the sick and good jobs to the jobless; this was the moment when the rise of the oceans began to slow and our planet began to heal; this was the moment when we ended a war and secured our nation and restored our image as the last, best hope on Earth. This was the moment - this was the time - when we came together to remake this great nation so that it may always reflect our very best selves, and our highest ideals. Thank you, God Bless you, and may God Bless the United States of America.

Great Moments in Legal History: Latrell Sprewell Sues the NBA Claiming to be a Slave

2008-06-03T12:38:00.001-07:00

Yes, ladies and gentleman, the law, and the legal profession, has had a long and distinguished history. Litigation has often served as the marching point for balancing the inequalities society has often imposed upon its citizens. There are some moments, like Brown v. Board of Education of Topeka Kansas, where Oliver Brown courageously took on the segregationist educational system of America asking the Court, and indeed, America: Does the segregation of children in public schools solely on the basis of race deprive the minority children of the equal protection of the laws guaranteed by the 14th Amendment?

This was brave. This was bold. But it is nothing compared to this great moment in legal history: the day Latrell Sprewell, a professional basketball player, filed suit against the National Basketball Association claiming a violation of his 13th Amendment right; Mr. Sprewell was a slave, and the NBA was his slave master. Said Mr. Sprewell, later, in rejecting a three-year, $21 million contract with the Minnesota Timberwolves (while at the time making $14.6 million per year), an NBA team (and therefore one of his alleged "slave masters"), "they're not doing anything for me. I've got a lot at risk here. I've got my family to feed. If (team owner Glen) Taylor wants to see my family fed, he better cough up some money. Otherwise, you're going to see these kids in one of those Sally Struthers commercials soon (where she solicits donations for starving children in developing countries) ." Indeed, Mr. Sprewell, what slave could afford to feed his family on $14.6 million per year? Indeed.

The 13th Amendment, adopted in 1865, reads:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have the power to enforce this article by appropriate legislation.

The 13th Amendment was passed in order to legally ensure that the economic system upon which persons, known as slaves, are deprived of personal freedom and compelled to work. They are held against their will from the time of capture or birth, and are deprived of the right to leave, refuse work, or to receive compensation in return of their labor. They were generally horribly mistreated and worked in inhumane conditions. In sum, slaves were not people, but property, and were often cruelly treated as such.

Fast-forward to the year 1999, Mr. Sprewell and his team of "legal eagles" filed suit against the NBA for a host of offenses. In their complaint, Mr. Sprewell alleges the Golden State Warriors (the team employing him at the time) and the NBA, "conspired to violate Mr. Sprewell's civil rights and violated his freedom of contract, because of his race, which is Black and African-American."

The start of this incident occurred on December 1, 1997, when Mr. Sprewell and his coach/(and I'll assume, someone he views as a "slave master" of sorts) got into a physical altercation while in practice. The trial court, Sprewell v. Golden State Warriors, 1999 U.S. Dist. LEXIS 3875 (N.D. Cal. Mar. 26, 1999), described the altercation as such:

Plaintiff attacked Carlesimo after the coach repeated a request that plaintiff pass the ball with greater force. Plaintiff slammed the ball down and told Carlesimo to "get out of my face, get the fuck out of here and leave me the fuck alone." Carlesimo responded, "you're the fuck out of here." Plaintiff then either walked or lunged at Carlesimo, grasped his neck driving him backward and stated, "I will kill you." Carlesimo offered no resistance and the two were separated. As plaintiff left the practice floor he stated, "trade me, get me out of here, I will kill you," to which Carlesimo countered "I am here."

After showering and changing, plaintiff, apparently feeling the need to re-articulate his position, returned to the practice facility and stated to Carlesimo, "you better get my ass out of here, get me the fuck out of here." Despite the efforts of two assistant coaches to restrain him, plaintiff succeeded in approaching Carlesimo and throwing an overhand punch that grazed Carlesimo's right cheek. A second blow landed on Carlesimo's right shoulder but may have been inadvertently delivered by plaintiff in his attempt to break free from those who were trying to restrain him. As he left the facility, plaintiff again stated, "I will kill you."

To set up his point regarding the 13th Amendment violation, and the villainy of his "slave master." Mr. Sprewell, in his motion, described Mr. Carlesimo as a "Caucasian, [who] took over as head coach of Defendant Warriors. Mr. Carlesimo was presented to the public under the banner "No More Mr. Nice Guy." In advertisements, Mr. Carlesimo was dressed like a gangster and portrayed as a coach who enjoyed taunting and screaming at his team. Mr. Carlesimo was and is known to be an abusive and caustic coach who frequently uses foul and threatening language towards the players on his team."

After the altercation, Mr. Sprewell was fined, suspended for the remainder of the season, and was then fired (thereby losing privileges to his $6.4 million per year salary). Disputing his contract termination (indeed, Mr. Sprewell, in his complaint referred to the punishment as "harsh"), Mr. Sprewell and the Warrior, in accordance to the collective bargaining agreement, took the matter to arbitration where the arbitrator ruled in favor of Mr. Sprewell. Clearly, the arbitrator must have believed, choking your boss should get you fired.

After being reinstated, and then subsequently traded, Mr. Sprewell initiated litigation against the Warriors and the NBA. One ff the offenses disputed was a violation of Mr. Sprewell's 13th Amendment right to not be a slave.

In regard to the 13th Amendment complaint, Mr. Sprewell argued:

Defendants intentionally interfered with Mr. Sprewell's freedom to make and enforce contracts in violation of the Thirteenth and Fourteenth Amendments to the Constitution of the United States of America and Section 1981.

Defendants' conduct was based upon Mr. Sprewell's race, African-American and Black, in violation of Section 1981. Historically, the management of Defendant NBA are white. A majority of the management and owners of Defendant NBA teams such as Defendant Golden State Warriors are white. However, a majority of the players are African-American and Black, like Mr. Sprewell.

Mr. Sprewell's complaint included a violation of the Sherman Anti-trust Act.

At the district court, amidst tension and drama, the court ultimately sided against Mr. Sprewell, stating:

Whatever evidentiary value a predominantly white management afford of an intent to discriminate in hiring or promotion, plaintiff's allegations are directed toward wrongful termination and excessive employee discipline. In this context, the mere allegation that management is predominantly Caucasian and plaintiff is African-American does not support an inference that defendants intentionally discriminated against him in his capacity as a player...

Moreover, the mere assertion that "some" white players obtained favorable termination provisions fails to provide a ground for inferring racial animus against plaintiff. Such facts are equally consistent with non-discriminatory treatment. Finally, it is unclear how plaintiff has been harmed by a failure to obtain better termination rights given the arbitrator's rescission of the Warrior's contract termination.

Amazingly, this case was taken to the 9th Circuit, Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. Cal. 2001), but, on relevant issues, the 9th Circuit affirmed the district court.

In sum, the law has come down against Mr. Sprewell. Apparently, in the eyes of the law, Mr. Sprewell, a professional basketball player, is not a slave.

And that, folks, ends one of the greatest moments in legal history.

Post Script:

For folks who are interested, Mr. Sprewell is still alive and well. On August 30, 2006, Milwaukee police investigated a claim by a 21-year-old female who claimed that she and Sprewell were having consensual sex aboard his 70-foot yacht, named "Milwaukee's Best," when Sprewell began to strangle her. On January 31, 2007, Sprewell's long term companion sued him for $200 million for ending their relationship agreement. She claims Sprewell agreed to support her and their four children since they were in college. On August 22nd, 2007, it was reported by multiple news agencies that Latrell Sprewell's yacht ("Milwaukee's Best") was repossessed by federal marshals after Sprewell failed to maintain payments and insurance for the vessel, for which he reportedly still owed approximately $1.3 million USD. In May 2008 a Milwaukee area home owned by Sprewell went into foreclosure status. He also owes $72,000 in unpaid taxes while his company Sprewell Motorsports hasn't paid its credit card bills. Mr. Sprewell is considering rejoining the NBA.

Brian Fantana, J.D.?

2008-06-02T16:45:00.000-07:00

I was watching Anchorman the other night and it occurred to me that Brian Fantana might be an attorney. While watching the "Sex Panther" scene, which shows Fantana's office, I noticed....Federal Reporters in the background!?!?! Is Brian Fantana an attorney? Judge for yourself...

PS: I checked the CalBar Attorney Search, nobody by the name of "Brian Fantana" is licensed in California.

How Not To Succeed As A Summer Associate

2008-06-02T13:42:00.000-07:00

Found this great post on Above the Law the other day about a memo put out by NYU Law on "how not to succeed as a summer associate." The memo entailed a few real life examples on some improper things summer associates did. While I'm working for the government this summer so I won't have the joy of expensing out a strip club bill (or get paid much, for that matter), I still learned a few valuable lessons (such as don't do skinny dipping with your boss) and learned how to avoid problems (bring your own laptop). Keep that last one in mind... Anyhow, here is my top ten, but be sure to check out the entire list.

1. Summer associate complains about having a windowless office and then claims to have been "promised" a window during the interview process.

2. Summer associate shows up at all firm events involving food, and is so busy eating that they fail to socialize with anyone else.

3. Summer associate sleeps 12 hours a day during the firm's three-day sailing trip.

4. Summer associate engages in public display of affection with co-clerk in library.

5. Summer associate throws up after a firm cocktail party as a result of excess consumption of alcohol.

6. Summer associate visits Internet porn sites at the office.

7. Summer associate organizes summer associate outing to strip club and bills firm.

8. Summer associate tells a partner that the way he is trying to make a fire during a firm canoe trip is "dumb"; same summer associate, later on the canoe trip, goes skinny dipping with senior associate.

9. Summer associate extends disingenuous lunch invite to attorney in order to dine at an expensive restaurant.

10. Summer associate says to a British-trained senior associate "I don't know where you went to law school, but in America summer associates get more sophisticated work assignments".

Bryan Stevenson: Commencement Speaker for USF Law's Graduation Ceremonies

2008-05-30T11:53:00.000-07:00

Courtesy of the fine folks at USF Law, I'm able to share with you a video of the school's most recent commencement ceremonies. While the graduation, in and of itself, was well, a graduation, the commencement speaker, Bryan Stevenson, was phenomenal. Mr. Stevenson is the founder and Executive Director of the Equal Justice Initiative. He so eloquently articulated a message of help and compassion in the face of injustice. His base message was to tell the graduates that fighting for what is "right" is often tiring, but that they shouldn't give up hope.

In remarking upon this, Mr. Stevenson spoke of an interaction he had with Rosa Parks, which was particularly inspiring to him. He explained that when he met Ms. Parks, and explained to her what he did, she told him that he must be "tired" but that he must find a way to re-energize himself.

That's his message in a nutshell, but the true value of the message is in listening to him speak it.

I couldn't embed the video correctly (yet, I'm still working on it) so all I have so far is a link to the ceremonies. Mr. Stevenson's remarks begin about 1/3 of the way in. So, without further ado, congrats to the Class of 2008, and I hope you enjoy Mr. Stevenson.

Summer is here...and I might as well post even more about law school

2008-05-17T23:49:00.001-07:00

Indeed, summer is here, and after a brief haitus for finals and post finals merriment, I am back on the blogosphere. I'll be leaving for Los Angeles in a few days... and I'm still waiting for my new laptop to come in the mail (my old one collapsed on me after finals) so the postings might be somewhat infrequent, but once I get my laptop, and everything else in order, the postings should be a bit more regular.

Like I said, I'll be moving to LA for the summer. This summer, I'll be clerking for a city attorney's office in SoCal. Should be interesting. Hopefully I'll get to prosecute some misdemeanors and work on some other municipal issues. I worked there last summer, and I really enjoyed the people and the work, so I decided to give it another go around. I will very likely be blogging on that throughout the summer. I'll aslo try and get some other law students on to blog about how their summer internships are going.

And, of course, I'll be posting on all the current SCOTUS opinions that come out. There should be some good ones, and I'm looking forward to reading them.

But before I get to the summer posts, I'd like to share a post I read on the Volokh Conspiracy about some of the difficulties about teaching a law school class. One of the main points the author points out is the gap between reading edited textbook cases and reading actual cases are vast. And that students do learn siginficantly from reading whole cases. Though, this is impractical due to time constraints.

Reading this post put me into a "last summer" time warp when I clerked for the LA DA. There, I simply did legal research and writing, with absolutely no court time. While it took me awhile to get my bearings, I eventually learned the skills the poster, David Post, was writing about: sifting through the BS in opinions and recognizing beneficial patterns in the case law that help shape your arguments (as well as the patterns that work against you... which, in turn, becomes how you plan your defense strategy). I'm not sure how well this could be taught in a law school class, but it would be helpful. Anyhow, here's a sample of the post:

My idea was pretty simple. Being able to read a judicial opinion from start to finish and to figure out what it means, or even what it might mean, even though there’s a lot of confusing junk in it, is an indispensable skill for any lawyer. If you are unable to do it – and I recognize that there are lots of lawyers out there who really are unable to do it – you are at an immense disadvantage in the practice of law (at least, in any practice that requires making legal arguments on behalf of clients); among other things, you will always be dependent on others who can do it (e.g., the authors of the treatises or hornbooks or articles or other secondary material on which you will necessarily have to rely) to do it for you, to tell you what the cases and the statutes mean. It is also very, very difficult; I have read a number of the cases that I include in my coursepack literally dozens of times, and there are still parts of them that remain inscrutable to me. Like most difficult things – playing the piano, reading and understanding 17th century poetry, surfing – it requires practice, and lots of it; the more you do it, the better you get at doing it.

You’d think, then, that we’d give our students lots and lots of practice, and lots and lots of help and guidance while they’re practicing, to help them master this critically important skill. But we don’t. In fact, we give them hardly any practice, and hardly any help and guidance, at all. All throughout law school we feed them a steady diet of edited, pre-digested cases, with all the “confusing stuff” – the stuff that just “gets in the way” of their learning the work-for-hire doctrine, or the elements of the patent infringement claim, or whatever it is we’re trying to teach them – taken out. All of the stuff that makes it hard to figure out what’s going on. But that’s precisely the point: it is hard. So how in God’s name are they ever going to learn how to do it if they never do it?

Microsoft Withdraws its Offer to Buy Yahoo!

2008-05-03T17:46:00.001-07:00

I don't normally post on corporate/economy/business related topics, but this has been something I've been following for the few months its been in play, so I thought I'd post a few brief thoughts on Microsoft withdrawing its bid.

First, I'm a little disappointed that this turned out this way. In February, it seemed as if Microsoft was gearing up for a proxy fight. But as March, then April, now May rolled along, Microsoft got tired, wimped out, and then withdrew without so much as firing a legitimate shot across Yahoo's! bow. Just a bunch of razzle dazzle shouting via the media. Although, it's probably for the better, for both companies, it's a bit anti-climatic. There is something exciting about two major companies going head to head, with the results somewhat unknown. Many thought Microsoft was going to bully its way into Yahoo! territory. Indeed, I was hoping it would happen. But alas, it did not.

Second, I really would have been curious to see how a hostile takeover of this magnitude and scrutiny would have happened. What defenses would have played out? And how would they have played out? We've seen Yahoo! attempt to seek out white knights, and play up a crown jewel defense (sort of) by possibly selling off Alibaba. Of course, Yahoo! also has a poison pill provision in its charter. In the event of a hostile tender offer to secure the Yahoo! board, it would have been interesting to see this work itself out, both in court, on Wall Street, and in the public eye. As a law student, such real life examples of corporate acquisitions, ones that are so heavily scrutinized by the media, are a rare opportunity to learn.

Lastly, on the subject of the media, how much did the constant gossip and speculation regarding the merger affect the outcome? Indeed, both companies had extensive media strategies. Most of the strategic details of the offer/rebuff seemed to have been leaked before they were ever offered/rebuffed. Seeing the success that Yahoo! has had in fending off its potentially hostile bid, does this help provide a new model in which M&A will follow? Or was MicroHoo an anomaly because of the high profile of the acquireor/target? I think MicroHoo will play, at least, some role in how mergers and acquisitions are strategized out in the future.

In all regards, it will be very interesting to see, as details filter out in the coming days, as to what led to the ultimate decision.

Anyhow, here's the letter from Steve Balmer to Jerry Yang regarding Microsoft's withdrawal. Congrats to Jerry and Skadden for the successful defense.

May 3, 2008

Mr. Jerry Yang
CEO and Chief Yahoo
Yahoo! Inc.
701 First Avenue
Sunnyvale, CA 94089

Dear Jerry:

After over three months, we have reached the conclusion of the process regarding a possible combination of Microsoft and Yahoo!.

I first want to convey my personal thanks to you, your management team, and Yahoo!’s Board of Directors for your consideration of our proposal. I appreciate the time and attention all of you have given to this matter, and I especially appreciate the time that you have invested personally. I feel that our discussions this week have been particularly useful, providing me for the first time with real clarity on what is and is not possible.

I am disappointed that Yahoo! has not moved towards accepting our offer. I first called you with our offer on January 31 because I believed that a combination of our two companies would have created real value for our respective shareholders and would have provided consumers, publishers, and advertisers with greater innovation and choice in the marketplace. Our decision to offer a 62 percent premium at that time reflected the strength of these convictions.

In our conversations this week, we conveyed our willingness to raise our offer to $33.00 per share, reflecting again our belief in this collective opportunity. This increase would have added approximately another $5 billion of value to your shareholders, compared to the current value of our initial offer. It also would have reflected a premium of over 70 percent compared to the price at which your stock closed on January 31. Yet it has proven insufficient, as your final position insisted on Microsoft paying yet another $5 billion or more, or at least another $4 per share above our $33.00 offer.

Also, after giving this week’s conversations further thought, it is clear to me that it is not sensible for Microsoft to take our offer directly to your shareholders. This approach would necessarily involve a protracted proxy contest and eventually an exchange offer. Our discussions with you have led us to conclude that, in the interim, you would take steps that would make Yahoo! undesirable as an acquisition for Microsoft.

We regard with particular concern your apparent planning to respond to a “hostile” bid by pursuing a new arrangement that would involve or lead to the outsourcing to Google of key paid Internet search terms offered by Yahoo! today. In our view, such an arrangement with the dominant search provider would make an acquisition of Yahoo! undesirable to us for a number of reasons:

* First, it would fundamentally undermine Yahoo!’s own strategy and long-term viability by encouraging advertisers to use Google as opposed to your Panama paid search system. This would also fragment your search advertising and display advertising strategies and the ecosystem surrounding them. This would undermine the reliance on your display advertising business to fuel future growth.

* Given this, it would impair Yahoo’s ability to retain the talented engineers working on advertising systems that are important to our interest in a combination of our companies.

* In addition, it would raise a host of regulatory and legal problems that no acquirer, including Microsoft, would want to inherit. Among other things, this would consolidate market share with the already-dominant paid search provider in a manner that would reduce competition and choice in the marketplace.

* This would also effectively enable Google to set the prices for key search terms on both their and your search platforms and, in the process, raise prices charged to advertisers on Yahoo. In addition to whatever resulting legal problems, this seems unwise from a business perspective unless in fact one simply wishes to use this as a vehicle to exit the paid search business in favor of Google.

* It could foreclose any chance of a combination with any other search provider that is not already relying on Google’s search services.

Accordingly, your apparent plan to pursue such an arrangement in the event of a proxy contest or exchange offer leads me to the firm decision not to pursue such a path. Instead, I hereby formally withdraw Microsoft’s proposal to acquire Yahoo!.

We will move forward and will continue to innovate and grow our business at Microsoft with the talented team we have in place and potentially through strategic transactions with other business partners.

I still believe even today that our offer remains the only alternative put forward that provides your stockholders full and fair value for their shares. By failing to reach an agreement with us, you and your stockholders have left significant value on the table.

But clearly a deal is not to be.

Thank you again for the time we have spent together discussing this.

Sincerely yours,
Steven A. Ballmer

The Democratic Race in Seven Minutes.

2008-05-01T14:43:00.000-07:00

Finals Time

2008-04-30T11:39:00.000-07:00

Yessirrreee. It's the end of April and that means it's finals time. The scrooge of law school. I mean, on the flip side, it means I get to spend hours on end in a room (see below) and finally learning and putting together what I was supposed to learn all semester long. So there is that added benefit. I have election law today at 630pm. Wish me luck! Anyhow, this pretty much means I won't be posting for two weeks or so.... unless some ridiculous Court opinion comes out. But until about the 10th of May, I'll probably be out of blogging commission. Anyhow, finals awaits, and, indeed, they wait for no student. So, peace out for two weeks. I will (hopefully) return (in good shape and intact). Cheers!

Crawford v. Marion County Opinion Announced: Justices Divded on Burden Level

2008-04-28T16:39:00.000-07:00

The Supreme Court, today, released its highly anticipated opinion to Crawford v. Marion County. The opinion was split 6-3 (Stevens, Roberts, Kennedy affirming; Scalia, Thomas, and Alito concurring; and Souter, Ginsburg, and Breyer dissenting) with the big dispute being what level of burden voters suffered as a result of the Indiana voter ID law. This was important because the higher the level of burden found, the higher standard the Court would apply. The lead opinion, authored by Justice Stevens, found the level of burden to voters to be indeterminate. As a result, Justice Stevens affirmed the voter ID law, applying a rational basis test upon the voter ID law. Here is a break down of the opinions.

Lead Opinion: Stevens, Chief Justice Roberts, Kennedy

Starting off with a brief overview of the facts of the case, Justice Stevens quickly found his way to the balancing test found in Anderson v. Celebrezze. The Anderson test stated that a court, when evaluating a constitutional challenge to an election regulation must weigh the asserted injury to the right to vote against the "precise interests put forward by the State as justifications for the burden imposed by its rule."

The Court then looked at the interests Indiana put forward justifying their voter ID law:

deter and detect voter fraud,
valid State interest in participating in a nationwide effort to improve and modernize election procedures that have been criticized as antiquated and inefficient,
preventing voter fraud in response to a problem that is in part the product of its own maladministration-- namely, that Indiana's voter registration rolls include a large number of names of persons who are either deceased or no longer live in Indiana, and
interest in safeguarding voter confidence.

In addressing the state interests, Justice Stevens first tackled voter fraud. He began by conceding the record contained no evidence of any voter fraud in Indiana's history. But in balance, Justice Stevens articulated instances in which historians and journalists had documented voter fraud in American history. In footnotes, Justice Stevens cited Boss Tweed, from New York (1868), an example from 2004 in Washington state upon which one example of in-person voter fraud took place, and an example from 2003 in the Democratic primary for East Chicago Mayor- though the fraud was through absentee balloting, not in-person voter fraud. He summed up by stating the State has a legitimate and important "interest in counting only the votes of eligible voters."

In respect to inflation of voter rolls, Justice Stevens pointed to a 2005 newspaper article which indicated sloppy record keeping and a decree by the Federal Government alleging violations in United States v. Indiana.

In regards to voter confidence, Justice Stevens stated that the State has has an interest in public confidence in the integrity of the electoral process as such integrity encourages citizen participation in the democratic process.

Justice Stevens then went into discussion of the burdens Indiana voters faced by the voter ID law. More specifically, Justice Stevens pointed out, the Court needed to focus on those burdens "imposed on persons who are eligible to vote but do not possess a current photo identification that complies with the requirement of the voter ID law."

Justice Stevens then concludes that, "for most voters...the inconvenience of making a trip to...[gather] the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting." In sum, he seems to state that the burden facing the interested voters isn't too troublesome.

This, however, is contradicted by Justice Steven's address of the petitioner's presentation of evidence. Based, on the "evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified." Justice Stevens then reviews where the evidence is deficient to make a determination on the burden.

Before concluding, Justice Stevens made mention of the partisan political issue concerned this case, noting that the Republicans in the General Assembly voted in favor of the voter ID law though Democrats were unanimous in opposing it. He addressed this concern by stating that if political partisanship were the sole, or significant, reason for the decision to enact the law, then indeed, a high stand of scrutiny would apply. But, if a nondiscriminatory law is supported by valid neutral justifications, than those neutral justifications should not be disregarded simple because partisan interests may have been one source of motivation for the legislature.

Justice Stevens then concluded that "when we consider only the statute's broad application to all Indiana voters we conclude that it 'imposes only a limited burden on voters' rights.' The 'precise interests' advanced by the State are therefore sufficient to defeat petitioners' facial challenge."

Concurring: Scalia, Thomas, Alito

In concurring, Justice Scalia applied a different test. Instead of the Anderson test applied by the lead opinion, Justice Scalia applied the test articulated in Burdick v. Takushi. Burdick, and reaffirming cases, have implemented a two-step approach: "Strict scrutiny is appropriate only if the burden is severe. Thus, the first step is to decide whether a challenged law severely burdens the right to vote. Ordinary and widespread burdens, such as those requiring 'nominal effort' of everyone, are not severe. Burdens are severe if they go beyond the merely inconvenient."

Justice Stevens then went on to articulate the burdens facing the affected Indiana voters. In balancing the burdens of the affected Indiana voter, against their right to vote, Justice Scalia found the burden to be "minimal and justified" because it does not "even represent a significant increase over the usual burdens of voting."

Dissent: Souter, Ginsburg

In his dissent, Justice Souter also applied the Burdick test Justice Scalia applied. He however, found the burden on voters to be much heavier than what Justice Scalia found. Pointing to a poor public transportation system, lack of locations for voters to get their IDs verified, cost of getting birth certificates, and the number of times voters have to do this (every election), Justice Souter found this to be a heavy burden indeed.

He then points out that the number of people in which this might be affected was significant. He points out that the District Court found that roughly 43,000 voting-age residents lack the kind of identification card required by Indiana's law. These people are likely to be indigent or elderly, so they likely would not have a car, thus making the task of obtaining an ID incredibly difficult, per the reasons explained above. As a result, Justice Souter found the State would fail the Burdick test, and voted to vacate the judgment of the Seventh Circuit and remand for further proceedings.

Dissent: Breyer

Justice Breyer, in a separate dissent, stated he would "balance the voting-related interests that the statute affects, asking 'whether the statute burdens any one such interest in a manner out of proportion to the statute's salutary effects upon the others." Justice Breyer highlighted the burden levels found by Justice's Scalia and Stevens and chose to disagree with them. He believed the burden was high. He then pointed to two other states, Georgia and Florida, who had lower burdens and then explained the record didn't provide a "convincing reason why Indiana's phot ID requirement must impose greater burdens than those of other States." In conclusion, while he acknowledged that the Constitution doesn't forbid Indiana from enacting a photo ID requirement, the statue imposed a disproportionate burden upon those without valid photo IDs.

Analysis

I simply cannot agree with this opinion. This opinion, for all the Justices', turned on the level of burden the affected Indiana voters carried when voting under the voter ID law. This level of burden then determined what standard of scrutiny would apply. Justice Scalia believed the burden was minimal. Therefore, a lower standard of scrutiny should apply. Those in the dissent believed there was considerable burden imposed on the affected Indiana voters. Therefore, a higher level of scrutiny should apply.

Justice Stevens, however, couldn't determine what level of burden the voters carried. But, in this confusion, he went ahead and applied a legitimate state interest scrutiny. I simply cannot accept this. When the voting rights, a fundamental right, are being burdened, the choice, in ambiguity, shouldn't be rational basis, but strict scrutiny. The Court should err of the side of protecting voter's rights against the tyranny of the State.

Justice Stevens, though holding the burden wasn't significant, did only a superficial analysis to explain his holding. Instead, he spent the majority of his "burden analysis" on why there wasn't enough information in the record to determine the "magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified." If Justice Stevens was so sure that the burden wasn't significant, why then, did he spend so much time articulating the lack of evidence? The fact of the matter is, both parties had very little strong evidence in their favor. Justice Stevens recognized this, yet still found against the voters. I am simply confounded as to why the Court is so deferential to the government when a fundamental right was at stake. The deference should be to the voter.

Even Justice Steven's use of the evidence is questionable. While the State's interests, in theory, seem significant on its face, there is simply no evidence presented to suggest these interests are event in jeopardy. For example, in supporting the State's position in regards to voter fraud, Justice Stevens points to three instances of voter fraud. However, the instances are hardly convincing to support the idea voter fraud exists today, in Indiana. First, the points to instances of when Boss Tweed ran New York in 1868. I'm all for stare decisis, but it's simply pointless to point to an instance of voter fraud 150 years ago as evidence that voter fraud could happen today. The political and electoral simply has simply evolved too much to even make the comparison.

His second example, the Washington fraud case uncovered only a single instance of voter fraud. A single instance means that most people are not committing voter fraud. Simply because one person committed voting fraud in Washington doesn't mean there is in-person voting fraud being committed today in Indiana.

Thirdly, his last example wasn't even on-point. The voter ID law applied to in-person voting, yet his East Chicago mayor example was an example of voter fraud in the context of absentee voting. Indeed, absentee voting is an issue that is of deep concern, but this is simply not within the scope of the question. Using this as an example only highlights the weakness of Justice Steven's argument.

Additionally, I also felt the Court dropped the ball when it came to the "political issue." By allowing partisan statutes to be passed so long as there is an accompanying "neutral justification" will only promote greater introductions of partisan statutes all cloaked by "neutral justifications." If it looks like a sheep but growls like a wolf, it's probably a wolf. The partisan divides in this country are not to be underestimated. Understanding the Court's desire to stay out of political issues, the Court needed to, at the least, make a statement that it will not be the arbiter of political issues. They failed to do this. And this I fear might set the precedent for the biggest legacies of this case.

In sum, I feel Justice Stevens set a tremendously low bar for States to overcome electoral fraud challenges. The Court applied the Anderson test to balance weak evidence supporting a State interest against an indeterminate burden imposed Indiana voters. In balancing these out, the two arguments appear to cancel each other out with their weaknesses. In this case, the tie should go to the People. Instead, the Court has given the victory to the Government and partisanship. A very troubling victory, indeed.

Playoffs: Bare Animus style

2008-04-27T15:57:00.001-07:00

I know everyone's all hyped up about the NBA playoffs and the NFL draft, but the real story is taking place at USF's Negesco Field. Yes, ladies and gentleman, I'm talking about USF Law Flag Football - Bare Animus. Here's a slide show of our playoff victory over our first round opponent. Some undergrads. "Both teams played hard, my man. Both teams played hard," said Rasheed Wallace. Enjoy:

Again, very thank you very much to our favorite fan, Kristen, for taking the pics.

U of Georgia doesn't like Justice Clarence Thomas

2008-04-26T13:00:00.000-07:00

Apparently folks down in Georgia don't take a particular liking to Supreme Court Justice Clarence Thomas. As the commencement speaker at the University of Georgia, the flagship public university in his home state, he has apparently sparked a lot of controversy. According to the article, the university is going through the process of changing its sexual harassment policy and some faculty members think having Justice Thomas speaking sends the wrong message.

This is just pure stupidity. While I may not agree with very many of Justice Thomas' opinions (and I find his giving a commencement speech ironic given his involvement with arguments while on the Bench- apparently now he has something to say...) but Justice Thomas deserves the respect a Supreme Court Justice should be afforded. Even granting his issues with his confirmation, this has no bearing on his ability to share some life lessons with graduating students. Justice Thomas has worked hard to get where he is. Not everyone becomes a Supreme Court Justice. It's a unique path in life and I am very certain Justice Thomas has something to say about the matter. The University of Georgia is simply embarrassing itself. I think the Volokh Conspiracy got it right when suggesting the school should switch with Northwestern University Law School to get Jerry Springer.

I also share the same disgust with my alum, UCLA, who is having Bill Clinton as its commencement speaker. Apparently the Daily Bruin is upset with this, claiming him to be a "thoughtless" and "poor choice." Spoiled kids have it tough.

Professor Paul McKaskle Retires from USF Law

2008-04-24T23:03:00.000-07:00

Professor Paul McKaskle is retiring from teaching here at USF Law. He is nothing short of legendary at this fine institution. I had him as a professor for both Civ Pro I, Civ Pro II, and Evidence and will never have another professor like him.

Professor McKaskle was one of the best. He was one of my favorite teachers. Ever. He always had time to speak to students. He was always there to offer honest advice. He kept the most flexible office hours. And though I sometimes wondered if he could hear the students speaking in the back room (he did fly helicopters for the Navy when he was a young man) he always answered questions intelligently. And as dry as civil procedure is, Professor McKaskle made it interesting to be there by understanding his material inside and out, and by never taking himself too seriously. Quick to make a joke, Professor McKaskle made it hard to fall asleep in class, even on Friday mornings. In fact, Professor McKaskle is so highly thought of that our flag football team named our fall season team after him in his honor when we found out he was retiring.

Professor McKaskle, first made an impression upon me on the first day of Civ Pro I when he pronounced my name correctly. While this may not seem like a very impressive achievement to some folks, having a man in his 70s pronounce a Chinese surname correctly was impressive enough for me. From there, he delighted all of us with his dry humor, hilarious stories of the past, dead on point social commentaries, lectures that, literally, have not changed (I got a set of class notes from a friend who took Civ Pro with him the year before and everything, from the says of the rules to the timing of the jokes were the same), historical notes on cases, and his occasional runnings into the wall ( I kid you not- the class was stunned into silence). To give you a little flavor of Professor McKaskle, here is a little blog commentary I found from a posting he did on the Volokh Conspiracy (I had no idea he read blogs) :

I'm surprised on a blog hosted by a bunch of law professors that there has been no comment on the number of male students who wear baseball caps in law school classes (whether put on forward or backward). In my school the University went to considerable expense to put a roof over the classrooms, but a surprising number of students apparently haven't noticed. Is there a rational reason for wearing baseball caps in classrooms, or is it simply a fashion statement of some obscure nature?

Classic Professor McKaskle. Some may think he's just "old fashioned" but to those of us who have had Professor McKaskle, it's hilarious. I can picture him saying it in my head; especially an emphasis on "considerable expense."

But, as all great professors must do, Professor McKaskle must retire. Yesterday, the school held a tea and coffee reception for Professor McKaskle, Professor William Bassett, and Professor C. Delos Putz (I did not have the privilege of taking classes with the latter two professors, so it would be dishonest for me to pay homage to them- though, indeed, they were great in their own rights). It was a very classy affair. It was well attended and there were giant cards for the students and others to sign.

I spoke with Professor McKaskle at the reception and he seemed to be enjoying himself. As usual, Professor McKaskle had on his "happy to see you" grin when I shook his hand (a surprisingly firm grip I might add). After congratulating him on his retirement and asking what he's going to do next, I didn't much know what else to say. A flag football teammate of mine told me I should tell him about our football team. So I did. I told him we had named our flag football team after him when we heard about his retirement. I told him we had made it all the way to the championship game, but lost to a team of undergrads. Professor McKaskle then paused for a moment, his grin growing wider, before telling me, "funny, I didn't read about it in the Chronicle."

I laughed. I couldn't help myself. I'm going to miss those jokes and his sense of humor. I'm going to miss seeing him walking around the halls or seeing him wait for the elevator after he gets out of class, observing the students mill around Kendrick Locker Walk.

I remember, coming out of my Civ Pro I final, and seeing him standing on the steps, waiting for us, first semester 1Ls, walk out of our final. Wearing his silly grin, at first I couldn't figure out why he was standing there. No other teachers did that. My undergrad professors could care less. It quickly dawned on me that this was a man who cared about his job, his craft, and his students. Walking out of that final, finishing up our first 1L semester, was a special accomplishment in and of itself, and he wanted to be there to watch us succeed by walking out and completing his test. Just like he has seen over 30 years of USF students succeed before I came to his class. It's a darn shame other students who come after me won't be able to enjoy Professor McKaskle. But, this being USF, and with the quality of dedicated and intellectual academic staff, there will be other McKaskles. But none like him.

I thought of that moment after my 1L final as I shook Professor McKaskle's hand to say good by, that day at the reception. I don't think I, or other students, will ever truly be able to articulate how "cool" Professor McKaskle was and the impact he had on our lives. He truly was a student favorite. And what ever he ends up doing with his retirement, I hope he enjoys it with his wife. He's given over three decades of his energy to this academic institution. Few men could do the same. I wish him only the best in his golden years. Good luck on retirement Professor McKaskle and thank you for your wisdom and dedication. There will never be another like you at USF Law. Or in any law school. Enjoy your retirement to its fullest.

SCOTUS hears "Millionaire's Amendment" election law case

2008-04-23T23:26:00.000-07:00

Yesterday, SCOTUS heard Davis v. Federal Election Commission. As posted by the Court, Section 319 of the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold Act) created the "Millionaire's Amendment." The three judge-district court found that Congress enacted section 319 to achieve equity between congressional candidates utilizing personal funds for their campaigns and candidates relying mainly on contributed funds. Under the statute, when candidates for the United States House of Representatives exceed $350,000 in personal campaign expenditures their opponents may be entitled to receive:

contributions from donors at triple the statutory limit;
contributions from donors who have reached their statutory limit for aggregate campaign donations; and
coordinated expenditures from party committees in excess to the statutory limit.

To effectuate application of section 319, the statute also imposes significant notification and disclosure obligations upon self-financed candidates. The questions presented are:

Whether the three-judge district court erred in finding that Congress's attempt to equalize a potential imbalance in resources between congressional candidates violates neither the First Amendment nor the Equal Protection Clause of the Fifth Amendment of the Constitution.
If equalizing a potential imbalance in resources of congressional candidates is constitutional, whether the federal statutory provision accomplishes the stated purpose.

In this case, Jack Davis is arguing his rights were violated by the "Millionaire's Amendment." in opening, Mr. Davis' counsel, Andrew D. Herman argues, "this case involves the constitutional question of whether the government may regulate the personal spending of a candidate on behalf of his own campaign. This is an activity that constitutes political expression at the core of the First Amendment, yet BCRA Section 319 seeks to deter and, failing that, penalizes such protected political expression. Even this Court finds that the harms upon speech of Section 319 are modest, the provision still fails to satisfy constitutional standard. It furthers no legitimate governmental purpose and conversely increases the undue influence of contributions upon Federal candidates."

In sum, he argues that the Millionaire's Amendment's purpose of "leveling the playing field" between congressional candidates who are self financed and not self financed is not a compelling state interest. And, even if it were a compelling state interest, the Amendment could be drafted more narrowly to meet its stated purpose.

The background for this case is Buckley v. Valeo. In Buckley v. Valeo, the Court found the state interest in preventing actual corruption or the appearance of corruption was a compelling government interest. And limits on campaign contributions was solution narrowly tailored to fit that interest. The Court, however, did not apply strict scrutiny, however, because limiting contributions was not a direction burden on speech. Campaign donations are more symbolic, in the sense that it articulates support for a candidate, not articulating a specific point of view on a specific issue. As such, a diminished form of strict scrutiny was applied.

In regards to expenditures, however, the Court found no compelling government interest in limiting independent expenditures. People are speaking directly about issues and it's impossible to corrupt an issue. As to the idea of personal expenditures, the Court found there should be no limit because it's impossible to corrupt one's self. This meant millionaire's could spend as much of their personal treasury as they'd like. Any cap on this would be a direct burden on their speech.

The Congress then passed the Millionaire's Amendment to "level the playing field." If a millionaire was going to use his personal war chest, the opposition candidate would get some additional benefits to even it out (see above.) This intersection between where personal expenditures for one's candidacy and personal contributions to an individual candidate is where the issue lies.

In arguments, Justice's Alito Scalia, and Kennedy seemed to warm to Mr. Davis' argument. Scalia and Alito point to the Buckley framework to note that the seminal case did not stand for "leveling the playing field." Buckley stood for preventing corruption. These are two distinct government interests. As Mr. Herman pointed out, in legislating against corruption, the government legislates uniformly, it doesn't take a side. When leveling the playing field, the government inherently takes a side, that of whom is being balanced out in favor of.

In addition, Justice Scalia pointed out it wasn't the government's job to "level the playing field." Candidates will always have certain advantages over each other. Simply because one candidate has a silver tongue doesn't mean the government can compel him to speak with pebbles in his mouth.

Justice Kennedy seemed most concerned with the idea that the part of the Amendment which limits party support to self-financed candidates, but allows party support for non-self-financed candidates. This, Justice Kennedy states, provides differential treatment of the candidates vis-a-vis support from their respective parties, and was "problematic." He was insistent upon this theme even when General Paul Clement argued on behalf of the government, despite General Clement pointing out that the statute couldn't be invalidated on that point because Mr. Davis never claimed this to be an injury.

Seeming to be on the side of Mr. Herman, Chief Justice Roberts' first comment seemed to sum up his entire thinking: simply because your opponent receives more money, and thus more speech, does not necessarily mean the "Millionaire's" speech is burdened. The Amendment does not prevent the self-financed from raising funds publicly, nor does it cap how much personal money the candidate can spend. In sum, there is not a limited amount of speech; simply because one candidate speaks doesn't mean the other candidate speaks less.

Justice's Ginsburg seemed to agree somewhat with Chief Justice Roberts. The government is not taking sides by allowing the non-self-financed candidate to raise more money. Therefore, the government is not speaking. Nor is the government restricting any speech. The self-financed candidate's spending of personal money is limited only by his net worth. Lastly, Mr. Herman argued that the Amendment burdened speech because it deterred speech: knowing the opponent would receive more lucrative fund raising opportunities, this might deter him from self-financing, or using less personal money. Justice Ginsburg saw no evidence of this.

Interestingly enough, Justices' Souter, Breyer, and Stevens did not have much to say. And of course, Justice Thomas did not say a word.

In all, though it seems close, it seems as if the Amendment will be upheld. The majority will likely consist of Roberts, Ginsburg, Souter, and Stevens, and Breyer. The minority, who will favor striking down the law, will likely consist of Scalia, Thomas, Kennedy, and Alito. Despite my prediction, Alito appeared to be sort of a wild card. He asked pointed questions on both sides. The same could actually be said for Roberts. So he too may play a wild card role.

One thing I found to be interesting, and Professor Rick Hasen of Loyola Law also said, was that, despite the government's entire merit brief being based on the fact the plaintiff suffered no injury and, therefore, had no standing, there was little mention of it in oral arguments. It should be interesting to see how its addressed in the opinion.

Personally, I would find to strike down the law. While I whole heartily agree with the idea of campaign finance, I cannot agree that the government "leveling the field" is something the government should be doing. While too much money in elections is problematic, I'd much rather have the money in the elections than limit the speech of candidates. I simply cannot find the government interest in "leveling the field" compelling. The government should not be in the business of picking sides.

I understand that by doing away with the Amendment it would actually limit speech. Less money could be contributed to a candidate, therefore, less speech could be made. But I don't believe the Buckley framework was implemented simply to find ways to maximize speech. If that were the case, then the Court might as well as simply declare the contributions limitations in Buckley unconstitutional because the only way to achieve this is to do away with all limitations. That way candidates who fund raise get an equal opportunity to to match those who are self financed.

One counter to this argument, however, though not addressed in oral arguments or in merit briefs (and rightly so, as it's weak), is that while the Court can determine whether a state interest is compelling, it is the business of the legislatures to determine what the contribution limits should be. Only in in Randall v. Sorrell did the Court declare that contribution limitations were too low. Never has the Court determined contribution limitations to be too high. From this point of view, it could be argued that the legislature sets contribution limits to prevent corruption. And they prevent corruption by ensuring there is a fair contest; that the symbolism of speech (contributions) doesn't drown out the direct speech (speech of candidates). It isn't the individual contributions that create fairness, but the sum of those contributions and its ability to create speech. This is what creates fairness and prevents corruption. It seems counterintuitive to think the less protected speech should receive more protection than the higher protected speech.

Of course the counter argument to that is the equal protection clause. You need to apply all standards equally. In the end though, Buckley shouldn't be changed. Buckley stood for the principle of preventing corruption and I think that's where Buckley should remain. There are other ways to resolve the issue of unfairness - public financing, or even getting rid of contribution limitations. As Scalia points out, candidates will always have certain advantages over each other. The government should not play the role of mitigator. I think the Millionaire's Amendment should be struck down.

St. Thomas More Society hosts death penalty speaker at USF

2008-04-22T19:03:00.000-07:00

The St. Thomas More Society at USF Law hosted death penalty speaker, Aundre M. Herron of the California Appellate Project (CAP). A Boston University law grad, Ms. Herron spent 5 years working as a district attorney in the Midwest before coming to San Francisco where she joined with CAP. An entertaining speaker, Ms. Herron spoke to a crowd of approximately 40 students happily munching their Subway sandwiches in Kendrick 104 about her experience with the death penalty.

Ms. Herron opened her presentation with a quick primer on how the death penalty process works in California. First, in order to be eligible for the death penalty, a defendant must be accused of a "special circumstance" crime. These crimes, such as felony murder, are dictated by statute. Second, after being charged, they defendants go to trail. At the end of trial, they enter the guilt phase, where it is determined if the defendant is guilty or innocent. If found guilty, the defendant is next moved to the penalty phase, where it is determined if he shall receive the death penalty. If handed the death sentence, the defendant automatic right to an appeal. This right cannot be waived, even by the defendant himself.

The appeal phase, many times, is then handled by three agencies: the Habeas Corpus Center, Office of the Public Defender, and CAP. CAP oversees these other two agencies.

After that primer, Ms. Herron went into the crux of her presentation: the inherent unfairness of the death penalty process. In sum, the focus of the death penalty debate shouldn't be on the end result of the execution itself, or even the crime which led to the death penalty; the focus should be on the events through out the criminal defendant's life that led up to the crime.

Ms. Herron articulated that nobody accidentally ends up on death row. It is a certain individual- someone who has lived their entire lives without anyone to care for them, that commits the crimes and puts themselves into the position to be eligible for the death penalty. As Ms. Herron analogized, "folks are groomed for death row like the Kennedys' are groomed for Congress."

Often times, these individuals have have suffered significant sexual and physical abuse as a child by the people who were supposed to care for them. Ms. Herron spoke of one client who, as a young boy, from the age of 3-7, was routinely taken down into a basement closet by his father . Once inside, a sock was stuffed into his mouth and the young boy was sodomized. It was no wonder, Ms. Herron quipped, that this same young man later committed terrible sex crimes as an adult.

In addressing death penalty solutions, Ms. Herron asked students to look at the "broad view" to look for solutions. Instead of looking at the procedural aspects of the death penalty, she encouraged students to look to preventative measures. Failing schools and mental health facilities, she noted, could easily prevent many of these young people from their fates. If we could fix the "front end" problems, we could mitigate these people from even getting to the death penalty in the first place.

On the whole, I thought the presentation was very nice. She was charismatic enough to pay attention to. I thought her message could have been a little narrower, however. She spoke too broadly about problems with the death penalty. Of course it would help if our educational system could be fixed. Of course it would be great if our mental health facilities were up to date and could actually service the population. But that isn't the issue.

The issue with the death penalty is the way defendants are treated throughout the process. That is all you can focus on, small things. Ms. Herron actually suggested that we need to remake our entire society. That, quite simply, is unrealistic. As she pointed out earlier, the government can't even make the bus run on time. What would be more realistic is to look at smaller aspects of the death penalty process and look to fix them. This is where I thought she would take her presentation. Unfortunately, it did not go this route.

To end on a positive note, I thought the St. Thomas More Society ran an excellent program (though I think more people showed up than they anticipated). They advertised well and drew a good cross section of students, who asked questions and interacted with the speaker. This meant that something was added to the debate and that's what's important. Overall, well put together and I look forward to more programs and speakers from the St. Thom Society next semester.

SCOTUS Approves of Kentucky's Lethal Injection Scheme

2008-04-22T09:39:00.000-07:00

SCOTUS recently entertained an 8th Amendment challenge to Kentucky's method of execution--lethal injection. In Baze v. Rees, the court held that Kentucky's three drug protocol (modeled after Oklahoma's scheme, and followed by 35/36 states, and the federal government, that have Death Penalty schemes) did not violate the 8th Amendment's prohibition against cruel and unusual punishment.

Before delving into the opinion, it is necessary to understand some preliminaries. The three drug "cocktail" consists of an initial dosage of sodium thiopental, a heavy barbiturate that induces a coma-like sleep; a second dosage of pancuronium bromide, a paralytic agent that stops all muscular-skeletal movements and induces suffocation by paralyzing the diaphragm; and finally a dosage of potassium chloride, which induces cardiac arrest. Kentucky has trained IV technicians inject the defendant, from another room, via a 5 foot IV line. The three drugs are administered separately, and there is a gap between the first and second drugs, to ensure the barbiturate has taken effect. All parties agree that if the cocktail is administered properly, the dosage of sodium thiopental will prevent the defendant from feeling any pain. Finally, the plurality and dissent agree with petitioner that if the cocktail is not administered properly, the defendant will experience excruciating pain, which would violate the 8th Amendment.

Petitioner challenges the protocol based on a significant risk that the protocol will not be administered properly, and if not the paralytic agent will prevent the defendant from being able to alert the administrators that he is feeling pain--resulting in a slow, agonizing death by suffocation and cardiac arrest. There are four important opinions as I see it:

ROBERTS, KENNEDY, ALITO plurality: As stated above, the plurality agrees that should the defendant suffer the amount of pain alleged, there would be an 8th Amendment violation. However, the plurality sets the standard for a challenge at a "substantial" or "objectively intolerable" risk of serious harm. The plurality would measure three factors: the degree of risk, the magnitude of pain, and the availability of an alternative. Based on a few factors to be explained below, the plurality found that petitioner had not carried their burden of proof.

STEVENS concurrence: STEVENS writes that the opinion will cause a flood of litigation in which the protocol adopted by every state will be challenged. He discussed elements of the creation and implementation of the protocol that he believes will be the subject of endless litigation here forward. However, the true thrust of his opinion is a renewed attack on the Death Penalty generally--arguing that the penalogical purposes initially identified as supporting the Death Penalty no longer serve as acceptable justifications for such a punishment.

THOMAS, SCALIA concurrence: THOMAS agrees with the plurality that petitioner failed to satisfy his burden of proof, but THOMAS would go one step further--he argues that the proscription of cruel and unusual punishment was intended to prevent intentional pain. He points to the practice at the time of framing of superadding pain onto the punishment of death (by such methods as burning at the stake, beheading, and disembowling). He argues these practices fell out of favor in the framers' day, and that it was this type of superadding of pain they aimed to prevent. According to THOMAS excruciating pain is not offensive of the 8th Amendment, so long as it was unintended.

GINSBURG, SOUTER dissent: GINSBURG would remand for consideration of whether the Kentucky scheme creates an "untoward, readily avoidable risk of infliciting severe and unnecessary pain." Moreover, she would treat the three factors (degree of risk, magnitude of pain, and availability of an alternative) as interrelated questions, not with a fixed threshold, but instead to be measured against each other. Thus, if the magnitude of pain was great enough, there wouldn't need to be a showing of such great risk, etc... She also discusses the fact that veterinary medicine prohibits euthanizing animals with a similar cocktail.

Finally, I wanted to address a few points from the plurality. The plurality finds the Kentucky scheme to be effective because the IV technicians are experienced and trained. However, the "training" consists of 10 practice sessions a year, and the experience is not medical training, but rather one year of experience with IVs. Moreover, the IV technicians are given up to one hour to properly insert the IV. During argument, expert opinion was presented that indicated if an IV was not properly inserted within 15 minutes or so, insertion would be futile and the dosage would be delivered to muscle tissue, rather than the bloodstream--rendering the barbiturate ineffective and causing excruciating pain. Next, the Court points out that the warden and deputy warden are watching from another room, and are charged with stopping the proceedings if anything goes wrong. Leaving aside for a moment the argument that the warden and deputy warden might not be so concerned about whether the defendant is undergoing pain, the fact that the warden is there cannot count for much--he's not a trained medical technician, there is no up-close examination of the defendant, the warden is simply standing in the other room waiting to see if in the 60 seconds between the barbiturate and the paralytic agent the defendant does anything to indicate he might not have gotten the first drug properly. This is not such a great safeguard, in my opinion. Further, the court mentions that this procedure has been used once in Kentucky and there was no evidence it did not go according to plan. This argument completely misses the point--the paralytic agent prevents the defendant from moving at all, from even twitching. Even if the defendant was experiencing excruciating pain, no one would know--that's the very premise of petitioner's challenge! This statement also ignores claims from oral argument that there is evidence form other states that the protocol has failed around 50% of the time.

Last and most importantly, the Court says the paralytic agent is necessary to preserve the dignity of the proceeding and to shield the observers from worry that the defendant is in pain (by preventing involuntary twitches and spasms, etc...) Again, this seems to miss the bigger picture. As to dignity--I would imagine most defendants would be willing to sacrifice a bit of dignity if it ensured they didn't die an excruciating death. As for the observers--this begs a bigger question. If the sight of watching someone squirm and twitch while dying is so displeasing, why are people watching at all? If the average person is so offended by the death of another (even a convicted murder), that we need to anesthetize the entire process, why do we endorse the Death Penalty to begin with? The anesthetizing of the process masks from the observer what is really happening to the defendant during execution. The need to anesthetize seems to indicate that the average observer would not support the Death Penalty if they were really exposed to what death entails.

SCOTUS cares what Citizen Kendrick says

2008-04-21T22:42:00.000-07:00

Thought I'd say congrats to our blogger, BMW, for his recent post on the death penalty. Apparently, the Supreme Court was curious and dropped by to get some Citizen Kendrick action:

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