Notes

This is the text of my valedictory speech, offered on May 31, 2008, for the San Joaquin College of Law graduation. For, you know, posterity. Or something.

I’ll try not to be too boring or take too long, even though I usually excel at both of those things when I talk.

I want to talk about hinges, like the ones on doors. I like hinges because they do two different and almost contradictory things at the same time: they hold a door to its frame and they allow the door to move.

I’ve been thinking about hinges because today we’re celebrating one of those important life events when people use metaphors to make sense of things. We say that graduation from law school is a “pivotal” moment, or that earning a law degree will “open doors.”

Those are both perfectly good metaphors. But today, on the occasion of our graduation from law school, there are a couple of reasons why I prefer hinges.

The first thing about hinges is that they hold things together. Whenever people go through these big life changes, like graduating from law school, passing the bar exam, and starting a new career, we usually play up the change. It’s dramatic! Stepping forward into a bold new stage of life!

But one of the more interesting things I’ve noticed in life is that even though we all go through these big, dramatic changes, we still have this inner continuity of character, a persistence in our sense of self.

Everybody in this room, no matter how old, can probably call up memories from childhood, things that happened on the playground in elementary school, twenty, thirty, fifty years ago. And even though we’re all grown up, with the scars of many changes, for the most part, inside, we all still feel like ourselves, the same people we were when we were kids—just bigger, with more things to worry about.

I think that’s an important thing to remember today. Law students sometimes ask each other, “Can you remember the way you thought before law school?” The answer is always, “No, we can’t.”

Our heads are filled with these shiny new analytical tools. But we haven’t really changed. We’re still the same people, even though most of us probably talk differently now. And maybe we’re more annoying than before.

The door is opened, but still attached to the frame. Like hinges, we are still there in the middle, connecting our lives before law school with our lives after law school. And now we will have to find a way to connect our lives as people who think like lawyers with every other part of our lives.

When you figure that one out, let me know.

The second thing about hinges is that they have this other quality of allowing things to move. Without hinges, you couldn’t really swing a door open or closed. But when a hinge does allow movement, it only allows movement within a range defined by the nature of the hinge. And when you swing a door, the movement is not only useful, it traces a perfect arc.

Most of us who graduate today are facing big changes with lots of decisions: building new careers, learning how to manage caseloads, balancing between work and everything else, navigating around the pitfalls of our ethical duties.

I don’t expect any of that to be easy. Law school was a challenge, but only the first of many. Some of those challenges will be what I think are the easy kind: the ones you just have to work hard to overcome. Anybody can work hard. But a lot of our challenges are the difficult, intractable kind: the ones where you have to make an important decision, but there’s no clear path to the other side. When you ask people for advice, nobody has any. To overcome those problems, we need to stay centered.

I’ve always found that, when I come to a tight spot, where it’s impossible to make a decision by trying to predict the consequences of each alternative, it helps to know myself. “Which of these alternatives is more consistent with who I am?” I’m not talking about easy questions, like “Should I tell the truth?” but hard ones, like “What kind of law should I practice?” Or the question we all had to answer, “Should I go to law school?” That was difficult for some of us.

Sometimes, you can’t make the best decision, but you can make an honest one.

And like a hinge, our character both allows us to make decisions and keeps us from choosing a path that is inconsistent with who we are. That’s usually nothing but trouble.

Like hinges, if we hold that center pivot where it belongs, the doors will open much more easily.

This is also important because honesty to ourselves is not just good for our mental health and personal success, it connects with our professional need for honesty, too. As Shakespeare wrote in Hamlet:

This above all: to thine own self be true,
And it must follow, as the night the day,
Thou canst not then be false to any man.

And the honesty isn’t just useful, like the ability to swing a door open or closed; it’s also pleasing to our sense of clarity, like the way a swinging door on a hinge will trace that perfect arc.

Abraham Lincoln once wrote that lawyers have a superior opportunity to be good people. I think we can all agree that lawyers also have a superior opportunity to be terrible people. 

Law school has taught us how to think like lawyers, so we have those unique opportunities, but we are still the same people we have always been. And I can say with all honesty that I have never known so many good people as I have met in law school. We have no reason to be terrible people and every reason to be good people, to hold things together, to open the doors that need to be opened.

Let’s not use the legal profession as an excuse to unhinge ourselves. May we all succeed.

Thank you.

Bar review is frustrating. So far, after a couple weeks of pretty intense studying, I remain convinced that the only way to pass the bar is to work hard, learn the law, and practice.

So what exactly are the bar review people peddling?

I purchased two courses, one that is structured, that addresses every part of the California bar exam, and a self-study course that focuses on the multistate portion. Essentially, here’s what I received in return for payment of the purchase price:

• books full of substantive outlines;
• books full of multiple choice questions and answers;
• books full of old California bar exam essay questions;
• books full of practice performance tests;
• a recommended studying schedule;
• some video lectures;
• some lame software.

Starting next week, I’ll also have the ability to turn in practice essays for “grading.” We’ll see how useful that is. I have my doubts.

Last year, when I was choosing my bar review courses, I remember being frustrated that I couldn’t just buy the books. Why can’t I just go on Amazon.com and purchase books full of practice essays, multistate questions, and performance exams, with sample answers and explanations? Doesn’t that seem absolutely reasonable?

But you can’t do that. Because the bar review peddlers, all of them, have a fanatical sense of protection over their stuff. Why? Other people, for other kinds of tests, write test preparation books and then just sell them on the open market, where anybody can buy them. But for the bar exam, no sir, not no way, not no how. Sure, you can go online and try to buy used books from people who have already taken bar review courses, but supply is low. Bar review peddlers pay good money if you return the books when you’re done with them. The last thing they want is for their product to get out there on the open market.

This seems to me like a dead giveaway that what the bar review people are peddling isn’t really worth the amount of money they’re charging. They just take advantage of the desperation of law students. “You want our books? Okay, give us a couple thousand dollars for our full-service course. Which you need. We can’t offer you any proof or statistics to demonstrate that you need it, but just trust us. You’re scared. Because you should be. Because the bar exam is hard. So pay us a couple thousand dollars and we’ll hold your hand. Oh, and give you practice questions, too.”

The National Conference of Bar Examiners, which writes the multistate test, is not much better. They’ve been administering this thing for many years now, but if you go to their website and try to buy old tests to practice on those questions, there are only three tests available (which comes to 600 questions). This despite the fact that everybody knows the only way to succeed on the multistate bar exam is to do thousands of practice questions before you go into the exam.

The longer I think about it and the more I study, the less I am convinced that bar review courses are necessary. Bar review preparation materials, like practice questions and outlines? Yes, those are necessary. Then you do the questions and you study the outlines and you take notes and you make flash cards—you work hard, learn the law, and practice. But you can’t just buy those materials at a reasonable price, the same way you can go down to your local bookstore and find books to prepare you for loads of other professional licensing tests.

Then the other day I wrote on my blog about my self-study multistate course. It was very critical of their software, which seemed so cool before I got it, when I was trapped in ignorance, because you can’t just go down to the bookstore and thumb through their stuff the way you can with any other book. It’s like they want you to think there’s some secret. You know what the secret is? Work hard, learn the law, practice.

But anyway, the self-study course. They have my money now. Close to a thousand dollars. And their software sucks. Really. It’s just questions, which could be printed in a book, and explanations for the answers, which could also be printed in a book. They could just sell you the book. They could sell it on Amazon.com or in Borders or Barnes & Noble or wherever. Or even directly from their own website on the internet. And then you do the work (which you’ll do anyway). Instead, they hawk this software like it’s some wonderful thing.

So I wrote some stuff on my blog that was critical of the self-study course. They emailed and demanded that I remove it or retract what I said. They claim it wasn’t true. I think they’re wrong. I think anybody who is so sensitive about their stuff that they can’t buck a little criticism is impliedly demonstrating that their stuff isn’t that great to begin with. And their stuff is not that great. It’s just poorly presented practice questions, with lots and lots of typos. I just wanted questions to practice on. But I had to buy a “system.” A “course.” That’s all these people sell. It’s a sham.

I took that blog entry down because I don’t have the time or resources to argue with them. Bar review people know that none of us have the time or resources to argue with them after we have purchased their junk and they also know that none of us have the clarity of mind to know ahead of time not to purchase their stuff. They have the superior position.

If bar review people were really offering something special, other than just selling books wrapped up in a “course” package, if what they sold actually caused people to pass the bar exam, then they would only charge money after their customers passed. But the truth is that the only thing that causes people to pass the bar exam is working hard, learning the law, and practicing. So they charge money up front, and then you study while they count it.

Take, for instance, the video lectures in my structured course. They’re recorded from live lectures and delayed a week. People say the live lectures are better, but I suspect there’s no appreciable difference. Nothing on the video indicates that people at the live lectures have any different experience. It doesn’t appear that they get to ask questions. The lecturers (at least so far) don’t appear to be using any visual aids. It’s just video of a talking head. (A really smart head, because most of the lecturers are top law professors, but a talking head nonetheless.) This could easily be sold as mere audio. Or even just text. The only helpful function of the scheduled video lectures, that is unique to that medium, is that they require me to be in attendance by 9:00 every morning.

It’s a sham. I know there are lots of things I learned in law school that I have forgotten about and which I now need to remember. I know I need to do a lot of practice questions. I know there are tons of things I don’t know. I know that the way to overcome these deficiencies is by working hard, learning the law, and practicing.

So why do I need a bar review course to do that?

During law school, one of my professors suggested this to me. I remember that I wanted to believe him, but I was so terrified of the bar exam, and so enthralled by this idea that bar review courses have some hidden secret, which is why they are so zealous about protecting their materials, that I blew off his suggestion.

I was probably wrong, at least in the sense that I believed bar review courses offered something special.

Unfortunately, I can’t tell up-and-comers not to purchase a bar review course. You kind of have to, because it’s the only way they’ll let you look at their materials, which include practice questions, outlines, etc.—the things you need to study with. You can’t just go to Bar/Bri (or any other bar review purveyor, that I know of) and say “I want to buy only the books.”

This, in my opinion, is just another way for legal publishers to squeeze more money out of people. Meanwhile, a flock of new websites is beginning to offer legal research information online, for free. PreCYdent is pretty good and getting better. The Legal Information Institute at Cornell is awesome. Here’s hoping they can break the backs of Thomson-West and LexisNexis, whose iron grip on information-needy lawyers begins with the peddling of bar review courses. Once that happens, maybe bar prep can just be studying, without shelling out a bunch of money for stuff that ought to be sold like any other books.

The best part about this article is the picture at the top, in which George Lucas is seen wearing a “Han Shot First” t-shirt. Brilliant. (Also, “Han” is in the picture.)

For those not in on the joke, it’s based on a famous scene in Star Wars (aka Episode IV aka A New Hope aka Star Wars: Episode IV: A New Hope), just after Luke and Obi-Wan have successfully completed formation of a contract—er, I mean, “made a deal”—with Han Solo and Chewbacca to fly to Alderaan in the Millennium Falcon (aka the Aluminum Falcon). Han is about to leave when this little green guy named Greedo comes in with a blaster (i.e., a gun).

Greedo apparently is trying to accept an offer to form a unilateral contract by returning Han to Jabba the Hutt, with whom Han has apparently breached his own contract. (And since filing a complaint for breach of contract just isn’t the Star Wars Way, Jabba instead makes a unilateral contract offer: bring me Han Solo and I will pay you a lot of money.)

So, anyway, Greedo and Han sit down at a table in the cantina, Greedo holding Han at gunpoint (i.e., blaster-point). Han leans back like there’s no problem, Greedo jabbers on in his weird alien language, Han looks off to his left and picks at something like he doesn’t give a rat’s ass that Greedo is pointing a gun at him. Greedo says something like, “I’ve been looking forward to this for a long time.” Han replies, “Yes, I bet you have.”

This is where there are two different versions of the story. In 1977, moviegoers saw Han shoot Greedo with his own blaster, from under the table. Bam. Han the bad-ass. But in the 1997 and 2004 versions of the movie, Greedo shoots first and misses and Han’s shot looks more defensive.

Naturally, the fans were up in arms. “Oh no! Our precious fictional bad-ass character upon whom we based our entire way of life and have developed a whole background mythology to bring meaning to our sad, lonely existence has just been ruined! He’s not a bad-ass anymore! He’s just engaged in self-defense! How lame!”

So they made t-shirts and things that say “Han Shot First.” As if to say, “George Lucas, you jackass! You got it wrong! We know your characters better than you do!”

Right? So it’s a snub, see?

And then lo and behold, ten years later, there’s George Lucas himself wearing a “Han Shot First” t-shirt. As if to say, “Fans, you fools! You got it wrong! It’s just a @$%&ing movie!”

So now, while I’m eating my oatmeal and drinking my coffee before heading off to my Bar/Bri class, I can sit here and think “Heh. All these years, the fans have gotten it wrong. That scene wasn’t about who shot first. It was about contract formation! Duh!”

From the Chicago Sun-Times:

Last week, [Wendy] Portillo held a vote in her classroom in which the students “voted out” 5-year-old Alex Barton, who is in the process of being tested for Asperger’s Disorder, a type of high-functioning autism, said his mother, Melissa Barton.

After each classmate was allowed to say what they didn’t like about Alex the teacher said they were going to take a vote, Barton said. They said he was “disgusting” and “annoying,” Barton said.

Kids are mean enough to each other without calculated help from their teachers. Ridiculous.

San Joaquin College of Law, class of 2008. Valedictorian.

It’s me. I got the call today. I have to write a speech.

Best line ever in a review of the fourth in a four-part series of pulp flicks?

If you eat four pounds of sausage, how do you choose which pound tasted the best?

Or is it just that doing Multistate Bar Exam questions all day has made me crazy? (Just wait until I’ve been doing this stuff for a few more weeks…)

Do check out Musopen, where you can download both recordings and sheet music in the public domain.

Just in case anybody from Thomson-West reads my blog, I want to say a couple things about Bar/Bri, the ridiculously expensive bar review course that you peddle to poor law students.

First, while I cannot deny the helpfulness of bar review courses, which falls somewhere in the neighborhood of “absolute necessity” from the highly distorted perspective of individuals who are facing an upcoming state bar examination, I am nevertheless troubled by the dearth of statistical data regarding the question of whether people who use your course are actually better off than people who don’t. Why isn’t this information out there?

For instance, I would like to see a chart that compares people who use Bar/Bri with people who use other review courses and people who use no review courses at all. I want to see it broken down by their law school grades, by their law schools, by their locations, etc., so people with similar situations can be compared to each other. I want to see what percentage of those people pass the bar exam on the first attempt. Where is this information? You’re just selling your stuff on the pitch that you’re long-established and lots of people use it. Yeah, so what?

This is a problem of all the bar review courses, though. Nobody wants to talk about actual success rates. So I had to choose a bar review course by the ridiculously lame criterion of “Which one seems to be the least fly-by-night?”

Second, the Bar/Bri website just flat sucks. It must be one of the worst websites I have ever used. Just terrible. Whenever I need to go there and get information, forms, or software, it’s always a hassle. Sometimes I think your website designers must be stuck in 1998, but the 1998 of a parallel universe where huge corporations whose main business is providing information think that the best way to channel your information to your customers is with clunky, obscurantist interfaces whose only clear message is, “Hi there, we are a bunch of dunderheads with no idea how to communicate with human beings.”

For instance, why is all of your content nestled into a tiny little frame in the middle of the window, so it feels like I’m looking through a keyhole to see all your stuff? Or how about this: When I wanted you to send me the “during law school” review books, why did I have to go to your website, download a PDF, print it out, fill it in by hand, and fax it back to you with my credit card number on it? Why do you bother having a website when you’re going to make things that circuitous and old-fashioned?

And Bar/Bri suckage is not limited to the website. Any chance you could clean up the scores of typos in that stack of books you send us? Or what about this goofy Flash-based “StudySmart” software? Doing MBE questions with software that tracks my progress is a super cool idea, I have to admit. Just like having a system of interstate highways is a super cool idea. But using StudySmart to prepare for the bar exam is like driving a 1987 Ford Aerostar on a cross-country road trip; it’ll do the job, but you’ll be cursing at it the whole time.

Third, would it be possible to provide some method of feedback other than leaving voicemail? An online forum? A wiki? How about an email address? Anything? Hello? I suppose I could have told you all this by leaving a message at the one phone number on the Bar/Bri website, but I have a feeling it wouldn’t do any good.

“Oh, some guy is ranting about how our website sucks. But we already have his money, so whatever.”

And that’s really what it comes down to, doesn’t it? You peddle your wares to people who are desperate, who have few other viable choices, not because your course is statistically proven to be superior, but because it has been around longer than the competitors. And you know that most of us are too busy and too fragged to go complaining about your lame customer service, especially when all you offer is a single phone number. And since we don’t take the trouble to complain, you don’t take the trouble to improve. If we pass the bar, then we’ll never deal with you again, unless we get suckered into using WestLaw for our legal research.

There’s this whole new generation of tech-savvy people coming into the legal profession and we are not remotely impressed by your products or services. Get a clue.

Now I have to get back to studying. Maybe some other day I’ll find time to complain about MicroMash, too.

Yesterday, the California Supreme Court struck down a statutory regime that gave same-sex couples essentially the same rights and duties as married couples, but called them “registered domestic partners” instead of “married couples.” This, the court said, violates the equal protection clause of the California Constitution.

The court did not say whether same-sex couples should be allowed to marry and have their relationship called and recognized as a “marriage.” As the court pointed out on pages 4 and 5 of the slip opinion:

It . . . is important to understand at the outset that our task in this proceeding is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership (or some other term), but instead only to determine whether the difference in the official names of the relationships violates the California Constitution.

Nor did the court say anything about the federal Constitution. This decision was based solely on rights under the California Constitution.

The court also did not invalidate the will of the people, even though some people mistakenly think so:

In this case the people of California spoke clearly, when in 2000, 60% of the people voted for a proposition that recognized marriage as between a man and a woman. Now 4 Supreme Court justices make a ruling which overturns the expressed wishes of a state of over 36 million people.

Sorry, but that’s what you might call a half-truth. I.e., not the truth. Also known as a “falsehood.” 

In its opinion, the court addressed this point. On page 113 of the slip opinion, the court explained:

Although defendants maintain that this court has an obligation to defer to the statutory definition of marriage contained in [California Family Code] section 308.5 because that statute — having been adopted through the [voter] initiative process — represents the expression of the “people’s will,” this argument fails to take into account the very basic point that the provisions of the California Constitution itself constitute the ultimate expression of the people’s will, and that the fundamental rights embodied within that Constitution for the protection of all persons represent restraints that the people themselves have imposed upon the statutory enactments that may be adopted either by their elected representatives or by the voters through the initiative process.

Yes, California voters approved a ballot initiative that made Family Code section 308.5 the law in California. (In case you’re wondering, that section says: “Only marriage between a man and a woman is valid or recognized in California.” In this case, the court was considering a group of code sections, of which that was only one.) But the ballot initiative did not change the California Constitution. Voters in this state can use the initiative process to change the Constitution. (Either of the two propositions on the upcoming June 3 ballot would amend the California Constitution if approved.) And as the court pointed out in the paragraph excerpted above, while section 308.5 was approved by the voters and therefore represents an expression of the people’s will, it remains subject to the ultimate expression of the people’s will, the state constitution.

Essentially, yesterday’s opinion told the people of California, “The only way you can discriminate against gay people is by amending your state constitution to make an exception to the equal protection clause.” (I’ll adopt the word “gay” the same way the court did in footnote 5 of its opinion: “For convenience and economy of language, in this opinion we shall use the term ‘gay,’ with reference to an individual, to relate either to a lesbian or to a gay man, and the term ‘gay couple’ to refer to a couple consisting of either two women or two men.”)

In my opinion that is not, as some people say, “legislating from the bench.” It is simply judicial review, which Chief Justice of the United States Supreme Court John Marshall explained quite well in 1803:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Marbury v. Madison, 5 U.S. 137, 177-178 (1803).

In yesterday’s decision, the California Supreme Court had to decide between the law of the California Family Code, which said that same-sex couples can have substantially the same rights as married couples, but that they cannot be called “married couples” under the law, and the California Constitution, which says “[a] person may not be . . . denied equal protection of the laws.” (Cal. Const., art I, § 7.)

Or, to put it another way, the court had to decide whether telling gay people that they can have substantially the same thing as married people, but that they have to be called “registered domestic partners” instead of “married people,” denies them equal protection of the laws.

You might disagree with the outcome of their decision, but you should see that when the question is posed, the court has to come up with an answer. That is not legislation, but adjudication. It can say, as it did, “Yes, that denies gay people equal protection,” or it can say, “No, that does not deny them equal protection.”

If you want to argue instead that the court does not need to come up with an answer, then you might say something like this: “The court should decline to answer this question. Deciding whether gay people should be allowed to get married is a political question, not a legal one. It should be decided by the legislature, or by the voters with a ballot measure.”

The problem with that argument, however, is that the court did not decide whether gay people should be allowed to get married. In fact, if you remember the passage I quoted above, you’ll recall that the court specifically did not answer that question. The only question answered by the court in yesterday’s opinion is whether gay people are denied equal protection of the laws when they are given substantially the same rights as married people, but not legally recognized as “married” people.

The opinion was about the label, not about the substance. Why? Because the California legislature already decided the substance when it enacted Family Code section 297.5, subdivision (a):

Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

The issue before the court in yesterday’s opinion was not whether gay couples should have all those rights, protections, and benefits provided by section 297.5, but whether, once giving them those things, they can still be called “registered domestic partners” without denying them equal protection of the laws.

California’s Supreme Court did not override the will of the people; it simply looked at two different expressions of the people’s will and decided that the constitutional expression trumped the statutory expression, which is entirely proper.

I’m glad Mike Huckabee didn’t make it past the primaries. Reports a New York Times blogger:

When his speech to the National Rifle Association was interrupted by a loud noise from backstage, Mr. Huckabee quipped, “That was Barack Obama. He just tripped off a chair. He’s getting ready to speak and somebody aimed a gun at him and he — he dove for the floor.”

So apparently the Republic party has regressed to the seventh grade. Just a bunch of gun-toting white guys who like to shoot people, especially when they are in the Middle East, and make jokes about black men running for cover.