Wednesday Writs: Bar Exam, Gatekeeping, and Cheese Snobbery Edition

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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110 Responses

  1. CJColucci says:

    Doesn’t anyone find Durst’s death suspicious?Report

  2. Saul Degraw says:

    WW4: The French have always accepted more of a role in government in protecting local industries/economies and cultural patrimony than the Anglo-sphere for whatever reason. Most countries actually don’t seem to mind laws that state “It has to come from X and/or go through process 1, 2, 3 to be called Y” kind of laws/agreements. Americans seem to have the biggest bug against such things.Report

  3. Oscar Gordon says:

    Personally, if I ruled the world, I would ban any professional or collegiate exam that is little more than a rote memory test. Such exams have been useless since the advent of the printing press.Report

    • Pinky in reply to Oscar Gordon says:

      Maybe I’m just looking for an internet argument, but if given the choice, I’d be more inclined to hire a lawyer who passed the current bar. I’ve rarely heard skilled people say “I know where to look it up”. Now, some of the value in the current system may be that people were expected to pass the bar and act as a squire for a few years before becoming a knight. They’d have the detailed knowledge from their schooling and bar, and then develop the day-to-day skills on the job. I’d guess that it’s more common to pass the bar and then follow a different track these days. So a change in the system may be necessary, to ensure lawyers are more well-rounded from Day One.

      It’s a tough call. As a programmer, I do way more cutting and pasting than actual writing. In other words, I “look it up” in old code. There’s always a balance between theory and practice.Report

      • Oscar Gordon in reply to Pinky says:

        As Em suggests in the OP, in this day and age, (especially given what we know about the unreliability of memory), having a person who can regurgitate a raft of facts and figures is less useful than having someone who knows how to construct that relevant information into something useful.

        Who cares if you can cite chapter and verse of a SCOTUS decision, if you are unable to use it to construct a valid argument as to why that decision supports or undermines a legal position.

        If we look at software development, what is more important, knowing how to implement a Binary Search Tree, or understanding why you would want to use one? Or conversely, if you are tasked with writing a database engine, what kind of data structures would you employ, and which search and sorting algorithms give you the best possible performance within the constraints of the customer requirements?

        If spitting out information is the mark of a good lawyer, we can do away with all lawyers and just let the WestLaw algorithms handle all the legal wrangling we need.

        tl;dr – Exams can be constructed to test logic and reasoning instead of ability to memorize. The reason we don’t is laziness – scoring such exams takes time and can involve a great deal of subjectivity, which means test takers will argue for every point.Report

        • Philip H in reply to Oscar Gordon says:

          Same thing in statistics – knowing how two write a two factor ANOVA is less useful now then knowing why your data needs one, since all the good stats programs are essentially drag and drop or pull down menus. Some of the data visualization programs still require programming skills, but the SAS I learned in grad school in 1993 has long passed its usefulness.Report

          • Pinky in reply to Philip H says:

            That’s a bad example. A statistician should really know both. He’ll never be good at it if he hasn’t worked with numbers from the ground up, knowing how to do each step by hand. In fact, a statistician will often have to abandon theory and improvise a solution. And I use the word “improvise” deliberately, since a good statistician is more like a jazz musician than a mathematician.

            Again, you don’t want to see ignorant people bending statistical principles. But a basic statistician has to understand the mechanics, and a good one has to understand the mechanics and the theory.Report

        • Brandon Berg in reply to Oscar Gordon says:

          “Looking it up” is good for known unknowns, not so much for unknown unknowns. Sometimes we don’t know what we should be looking for, and having a large mental bank of domain-relevant knowledge can help with that.

          It’s hard to look up “everything relevant to the current problem” unless it’s a common enough problem that that book or article has already been written. But if you already know of information relevant to the current problem, you don’t have to search for it. Some of this might be information you never would have thought to look for.

          Plus, using information that you already know is faster than looking it up. I’ve spent entire days on problems I could have solved in minutes if only I’d known the one thing I needed to know. It’s not strictly necessary to know the times table—you can work around it with a lot of addition—but we still make kids memorize it, for good reason.

          I’ve never taken the bar exam or practiced law, so I can’t say whether the bar exam requires you to memorize too much (though the first-time pass rate suggests to me that it isn’t all that onerous), but memorizing facts is underrated, IMO.Report

          • veronica d in reply to Brandon Berg says:

            I’ve spent entire days on problems I could have solved in minutes if only I’d known the one thing I needed to know.

            I’m literally dealing with this right now, in another window.

            As some of you know, I write software dealing with airline pricing. The thing is, the various regulations and standards dealing with airline pricing are rather dense. For example, we have to deal with aspects of tax law for every nation on Earth, since a nation can tax air travel however it pleases. It turns out I don’t know the tax law for every nation on Earth. There are a few of them. Moreover, there are all manner of obscure standards produced by various air travel consortiums dealing with what sort of fares can be used on which kinds of flights and how those can all be arranged into a “journey.” No one software engineer can understand all of this.

            Anyway, we have a group called the “pricing team,” who are not programmers, but instead are “industry experts.” They tend to have decades of experience working with airlines and pricing. I don’t need to involve them in every ticket I work on. Often the feature or bug is straightforward, applying rules I already understand. However, occasionally, such as right now, I need to ask them to interpret an obscure provision — or even to inform me that such a provision exists.

            I hope it goes without saying that I respect this team very much. I believe all of my coworkers do. It’s amazing how much knowledge they can fit into their brains.Report

          • JS in reply to Brandon Berg says:

            Proper foundation is important. I once needed to fix a simple bug in a piece of software — the user would enter a bit of data about a diagram on the screen, and that would be processed and some internal bits updated based on their selection.

            Except, when I went to deal with the bug, I asked “Why does the user need to be involved? This isn’t a user decision — this is asking a factual question about the diagram.”.

            I got told “Oh, well, it’s a very complex problem to solve. You’d need to do [X-Z] and it’s just quicker to have the old Mark 1 eyeball solve it and have the user do it”.

            Except…it’s not a complex problem. It’s was, at it’s base, identical to one your computer solves every time you click on a button on the screen. (Point in polygon problem)

            So I went and looked that up, found the basic solution, tweaked it to account for the weird variable geometries, added a “good enough” general solution for nested geometries that would only fail if the interior started getting real fractal, and slapped it in place. Total time elapsed: 8 hours, most of which was be trying to work out how a rather fun geometry problem about arcs and circles and rays and intersections.

            For a problem everyone else (all very smart PhD folks whose specialty was NOT computer science or programming) blithely assumed the problem was incredibly complex.

            To me? I’d never actually had to use that method, but I knew it had to exist. I used the first solution (ray casting) from the 60s. There’s an improved winding number solution, apparently, but I understood basic geometry and DON’T understand winding numbers so guess which was faster? 🙂Report

        • DensityDuck in reply to Oscar Gordon says:

          “Why should I know what kind of tools exist? The important thing is knowing that tools exist. Everything else I can look up on the Internet. See, ‘attach 2 piece wood together’, it says that arc-welding is good for joining two pieces of material. Now I just need to find an arc welder that works on wood…”Report

        • Oscar Gordon in reply to Oscar Gordon says:

          This all depends on what you are testing for. Are you testing the ability of a test taker to cram their head full of minutiae facts and figures, or are you testing so as to weed out those who may have managed to pass the school without actually learning how to function in the role?

          I mean, if the test exists solely for gatekeeping, then testing ability to memorize and recall detailed information is a good idea. But if you are checking for ability, then rote memorization is a poor metric. That’s probably how they managed to skate through school in the first place.

          As for “Looking it up”, yes, if you don’t know what you don’t know, then looking it up is no help, which is kinda the point, is it not? A test is time limited. If I don’t know what equation or algorithm I need, being able to look it up is no help. Or rather, the time needed to determine what I need, then look up the specifics, will be considerable. You could probably do that once, maybe twice, during an exam, but more than that, and you will burn all your time.

          On the flip side, if the grader only marks a specific, correct answer, then I need to know the details of the equation or algorithm, because no one is going to look at my work to see that I forgot that the part inside the square root of the Quadratic Formula is (b^2 – 4ac), and not (b^2 + 4ac), because I haven’t looked at the Quadratic Formula in 5 years and I plumb forgot the details, or I’m anxious as all hell* and I probably couldn’t remember how to write my own name at that point.

          So really, it very much depends on what the exam is testing, and what is an acceptable answer. If I get decent partial credit because I knew I needed to use the QF, even if I flubbed the execution, then sure, being able to look stuff up isn’t that important on the test, because the test isn’t looking for the correct answer as much as they are looking for the correct understanding of how to solve the problem.

          See also, Burt’s response way down thread.

          To DD’s comment, if the question is, “How do you fasten two pieces of wood together?”, one should understand that you can use nails, screws, joinery, dowels/biscuits and glue, etc. But if the question is, “How would you join a rafter to a top wall plate in order to satisfy the requirements of CA Earthquake codes?”, you might need to look that up. Hell, when we put a bedroom above our garage a few years back, I knew that the engineer doing the calculations looked up the specific requirements, and the contractors doing the work double checked his references on the drawings and they found a mistake, and we had to get new engineered beams built and shipped to us (and someone -not me – ate about $1000 in materials). So even if you did have all that information in your head, you still double check.

          Anyway, I’m back in school right now, and I appreciate how my professors are being very thoughtful regarding the testing. Of course, all of my graduate level classes have been this way. Which is really what it boils down to, the examining authority (be it a professor, a company, or a state credentialing agency) being thoughtful regarding what they are actually testing for, and building the test to that.

          *Yes, I hate taking exams. I have a bottle of beta blockers sitting in my desk specifically for taking exams.Report

  4. Saul Degraw says:

    Mike Lindell thinks he has enough evidence to jail every adult American and 50 million children:

    • Jaybird in reply to Saul Degraw says:

      Harvey Silverglate wrote a book called Three Felonies A Day: How the Feds Target the Innocent. It covers how the Federal laws covering everybody have become impossibly broad and vague.

      It’s probably what Lindell is referencing (but I say that without looking at your link).Report

      • Greg i in reply to Jaybird says:

        You are assuming Lindell of all the wackadoodles out there is making a deep serious point about the nature of the law. Okay….have i told you about this charity i’ve put together. It’s called The Human Fund.Report

      • CJColucci in reply to Jaybird says:

        Some years ago, while waiting in a law firm conference room for a deposition witness who was running late, I started paging through the federal statute volumes in the bookcase. I found all sorts of crimes that I would never be in a position to commit unless I worked in a regulated industry and should, therefore, have an idea of what I can and can’t do. I found a bunch of crimes that involved lying to various federal authorities, tax crimes, fairly obvious crimes — counterfeiting, certain kinds of assaults and homicides, sex trafficking, and the like — and somewhat more obscure crimes that one cannot inadvertently commit, like mail and wire fraud. Other than certain crimes related to recreational choices, I found nothing that I had ever committed. More to the point, I found nothing that I could innocently blunder into committing.
        If someone wants to argue that some of these crimes shouldn’t be crimes at all, and that some of the crimes one can’t inadvertently commit sweep somewhat too broadly, I wouldn’t argue against it. But the average, generally law-abiding citizen, who fills out a tolerably honest tax return and doesn’t lie to the feds on the rare occasions they want information is not at serious risk of committing three felonies a day, or one a year, for that matter.Report

        • Jaybird in reply to CJColucci says:

          Stuff like “using a sick day to go to a ball game” apparently counts as a felony.

          Now, *I* have never used a sick day to go to a ball game.

          I *HAVE* taken sick days because I needed a “mental health” day and spent the day goofing off.

          I don’t know how close to representative that example of an overbroad law would be.Report

          • CJColucci in reply to Jaybird says:

            Really? Is that example from somewhere? Maybe if the guy is a federal employee and is falsifying his time sheet and getting a phony doctor’s note to cover it up. But then that would come under the heading of crimes you can’t inadvertently commit.Report

            • Jaybird in reply to CJColucci says:

              From The Cowl:

              For instance, if an honest and diligent employee decides to take a sick day in order to attend a baseball game during work hours, this could be considered a felony. The U.S. Code of Statues describes this activity as a “scheme or artifice to defraud” or deprive another of the intangible rights of honest services.

              The book gets more into stuff like “a prosecutor could conceivably charge somebody with this” than “a jury is likely to convict somebody of this” but the point of the book is the whole overbroad thing.Report

              • Chip Daniels in reply to Jaybird says:

                This just highlights how our view of what is a moral transgression is highly dependent on context and circumstance.

                Is robbing someone of a few hundred dollars a crime?

                Wellll, it depends…Who is the robber, what is being robbed, who is being robbed, how it is done, etc.Report

              • Jaybird in reply to Chip Daniels says:

                I think that there is very much a problem with our intuition that “crime” refers to “doing something that is immoral and against civil society” when, really, it merely means “breaking the law”.

                I mean, this can lead to weird places where violent crime is going up but silly obscure violations are going down and that is seen as society getting better when, really, it’s law enforcement merely being less bad.Report

              • Chip Daniels in reply to Jaybird says:

                Elaborating on my thought, it seems that our conception of what is a moral transgression against civil order is highly conditional and predicated on class and circumstance.

                An employees plays hooky and reaps a few hundred dollars in fraudulent pay;
                An employee walks out the door with a few hundred dollars in merchandise;
                An employer cheats the employee out of a few hundred dollars in pay;

                All three of these are moral transgressions, but are they all equal?

                I think its fair to say that most people surveyed would hold that only the second one is such a moral transgression as to constitute criminal punishment.

                Is there some moral logic that holds this?
                But I think it has more to do with a set of unwritten norms of behavior that establish different limits of harm for different people.

                Like even this very subthread is an example.

                Most people involved in the “Three Felonies A Day” discussion become aghast at the idea that “We” are thieves.

                But the guy who shoplifts a two dollar soda?
                Oh hell yeah.Report

              • CJColucci in reply to Jaybird says:

                Couldn’t find the quote, but I’m not interested in hypotheticals from a kid writing for a college newspaper. I used to be one, and know better. Taking the squib at face value, however, it is plainly wrong. The “U.S. Code of Statutes,” whatever that is, describes no such thing. The “honest services” statute, 18 USC Sec. 1346, does raise some complex issues, not fully resolved after a bunch of case law, including, notoriously in NY, the conviction of former Assembly Speaker Sheldon Silver, but I would feel comfortable advising the hypothetical employee at the ballpark not to worry.Report

              • Jaybird in reply to CJColucci says:

                I’d probably make that argument too.

                The “three felonies a day” argument is not “everybody should be arrested” but “everybody *COULD* be arrested and charged”.

                I agree that many of these arrests are not particularly likely to result in conviction but merely money spent on lawyers, time lost, and probably several impacts on personal and professional lives.Report

              • CJColucci in reply to Jaybird says:

                What argument do you think you would be making? Mine is that Sec. 1346 probably doesn’t even cover the conduct and that our “sick” employee at the ball game not only would be acquitted if prosecuted, but doesn’t face a realistic threat of arrest and prosecution at all.Report

              • Jaybird in reply to CJColucci says:

                That it, technically, qualifies as a felony.

                In the same way that it is a felony to mail a toy marble across state lines without a warning.Report

              • CJColucci in reply to Jaybird says:

                Neither is true.Report

              • Jaybird in reply to CJColucci says:

                Well, you’re the lawyer. I just see what the law says.

                If you want to look at the law itself, it’s there. I can copy and paste this part:

                (i) Any marble intended for children three years of age or older shall bear the following cautionary statement:

                And then it has the cautionary statement.Report

              • InMD in reply to Jaybird says:

                I’m not sure general consumer protection law is really the greatest example of this issue. It kind of reminds me of the old MADD tactic of counting accidents where a sober driver kills a drunk driver as a ‘drunk driving death.’ It obscures more than it illuminates.

                That said, contra CJ, if I had a client who I knew or suspected was under a federal probe I’d say be careful about calling out for that baseball game. Probably not an issue for any normal person though.Report

              • Jaybird in reply to InMD says:

                You keep ending up with stuff like this:


              • CJColucci in reply to Jaybird says:

                I read it, and, even better, I understand it. The statute is a consumer protection law about hazardous toys governing the actions of people in a specific, regulated industry. I can cut and paste what I said about those kinds of laws, but you probably can figure out that no normal, law-abiding citizen need fear sending a bag of marbles to a niece in another state without a product warning. and getting indicted. It is not even “technically” a felony.
                People in the toy business have to put warnings on choking hazards that they sell in interstate commerce. Mostly, enforcement is civil, but you can be hit with a $500 fine and 90 days in jail — misdemeanor sentences. If you add fraud on top or are a persistent scofflaw, then, and only then, does it elevate to a felony.
                So no normal person has to lose their marbles over marbles. Just as no normal person has to worry about inadvertently committing three felonies a day, or one felony a day, or one a year. Despite the scaremongering.Report

              • DensityDuck in reply to CJColucci says:

                “…no normal, law-abiding citizen need fear sending a bag of marbles to a niece in another state without a product warning.”

                seems to me that no normal law-abiding citizen need fear that selling loosies would get them choked until they died

                and yet

                seems to me that no normal law-abiding citizen need fear that selling their own milk taken from their own cows on their own land to their own neighbors would get a raid by federal agents with machine guns

                and yetReport

          • Mike Schilling in reply to Jaybird says:

            Stuff like “using a sick day to go to a ball game” apparently counts as a felony.

            Have you ever heard of someone convicted (rather than fired) for that?Report

            • Jaybird in reply to Mike Schilling says:

              Nope. I only hear about the whole “spend $10X to save $X” thing where lower-skilled workers have to provide doctor’s notes for being sick while less replaceable employees can do stuff like call in and say “I’m not feeling it today” and show up a couple of days later with no impact.Report

              • DensityDuck in reply to Jaybird says:

                lots of dependence on “nobody would ever”

                like, when they passed Sarbanes-Oxley I’m sure they thought “nobody would ever point to this law and claim it was a Federal-level felony crime to throw undersize fish back in the ocean”, and yet that did in fact happenReport

        • Oscar Gordon in reply to CJColucci says:

          How much more do you get if you roll state and local felony statutes into that?

          I know the point the book is trying to make is less that we are all guilty of violating law and more that is a DA really wants to dig, they can probably find sufficient evidence of some kind of felony against anyone.

          The obvious counter is that most DAs are not interested in doing that kind of digging, but we also don’t really have a good check against a DA that gets a burr up their butt and decides that they really want to.Report

          • CJColucci in reply to Oscar Gordon says:

            More, but not much. There aren’t many state crimes — again, outside of those applicable to participants in heavily-regulated activities — that one can inadvertently commit. Many of us, me included, have committed various crimes on purpose, usually related to recreational activities, in the serene confidence that no one will bother us. People willing to take that degree of risk shouldn’t worry about obscure crimes.Report

          • JS in reply to Oscar Gordon says:

            “How much more do you get if you roll state and local felony statutes into that?”

            I’d imagine not many. “Ignorance is no defense” is a nice truism, but in actuality, in America at least, it’s more often “Ignorance is no defense if any reasonable person would suspect this is against the law”.

            For instance murder, arson, drug trafficking, etc.

            Ignorance IS a defense against quite a few laws — secret laws, for starters. Laws that are so arcane or under-enforced that a reasonable adult would NOT know it was against the law.

            There’s even more where no only is ignorance a defense, but the prosecution has to show criminal intent — although that’s generally not that hard, insofar as people who decide to break a law they know about generally actively do things to conceal their lawbreaking — such as, for instance, structuring deposits to avoid reporting requirements.Report

      • Saul Degraw in reply to Jaybird says:

        I don’t think Lindell is making that point.Report

        • Jaybird in reply to Saul Degraw says:

          Fair enough. The dude’s batcrap crazy.

          But the first thing that I thought of was the three felonies a day thing.


          • JS in reply to Jaybird says:

            That’s a consumer protection law mandating toy labeling practices.

            It also includes labeling choking hazards, safety warnings, and how big they have to be to be easily readable by purchasers.

            Most importantly, it’s not a felony. Violating businesses get fined, not jailed.

            The only way for you, personally, to run afoul of this law is to…make children’s toys and fail to put the required safety labels on it, including the ones for choking hazards.

            Which, you know, a marble is to a toddler. It’s exactly the right size to lodge in their windpipe if they get their little 2 year old mitts on it and swallow it.

            Kinda weird you’re taking a stance against a mandated warning that a toy contains loose marbles as a bad thing.Report

            • CJColucci in reply to JS says:

              Hardly weird at all.Report

            • Chip Daniels in reply to JS says:

              We’re you around here for Poolmageddon?

              The freakout then was that Stormtroopers were going to go around shutting down public swimming pools for noncompliance with a ridiculous regulation imposed by the nanny state.

              We had a whole thread on it here.

              It will not surprise you that the Stormtroopers failed to appear and swimming pools continue to be used.Report

              • JS in reply to Chip Daniels says:

                I’m just deeply surprised even Jaybird would prance in here and scream about crazy laws and point to — a consumer law mandating that toys with loose marbles state that, because they’re a choking hazard to toddlers.

                I mean clearly he just read the “You have to label a marble a marble!” bit and didn’t actually bother to engage his brain, just retweet it like some sort of poorly programmed chatbot, but…

                Still. My kid is in his twenties. Just from the mention of a “marble” and “interstate commerce” I was 99% certain it was a simple consumer protection law about choking hazards. It wasn’t rocket science or a deep mystery.Report

              • Jaybird in reply to JS says:

                JS, I’m not talking about crazy laws.

                I’m talking about how pretty much every inch of our life is regulated and, yep, you have probably done three things today that a prosecutor could take before a grand jury.

                Everything is regulated. Even sending a marble across state lines.

                “BUT THAT’S GOOD!” is a counter-argument against that, I suppose. “That much of our lives needs to be regulated!”Report

              • Jaybird in reply to Jaybird says:

                If I were going to talk about a *CRAZY* law, I’d probably start with the CSA.Report

              • CJColucci in reply to Jaybird says:

                yep, you have probably done three things today that a prosecutor could take before a grand jury.

                Nope, you probably haven’t. If you have something, show your work.Report

              • Jaybird in reply to CJColucci says:

                Probably easiest to start with the CSA. If you have a stash of marijuana in your house, surprise! You are in violation of the CSA. Marijuana is a Schedule 1 drug.

                I don’t know what the amount needed to demonstrate “intent to distribute” would be but having multiple live plants in the house might suffice. I doubt that anybody on this board grows their own, though, so let’s just assume that having an eighth above the fridge for when company comes over counts as one.

                I’ll copy and paste this one:

                Dane Yirkovsky is serving a 15‐​year sentence for possession of a single .22‐​caliber bullet.

                In December 1998 he found this bullet while doing remodeling work for a friend who was giving him a place to stay in exchange for the work. Yirkovsky put the bullet in a box in his bedroom. Later that month, the police found the bullet while searching Yirkovsky’s room after a call from his former girlfriend, who claimed he had some of her possessions. Because of Yirkovsky’s prior convictions for burglary, federal prosecutors charged him under the Armed Career Criminal Act, although he had not threatened anyone and did not have a gun.

                I don’t know if anybody on the board qualifies for being charged with the Armed Career Criminal Act. You need a prior for that.

                Texas, Mississippi, Alabama and Virginia have it illegal to own more than six “obscene devices” (“dildoes”). I certainly wouldn’t impugn the moral stature of any of our fine readers but I hope that if some of them own more than six obscene devices, they live in one of the other 46 states.

                Is that sufficient to prove the substantive point I’m making or do you want me to cover some of the stuff New York does? (Conspiracy to distribute more than 16 ounces of soda.)Report

              • CJColucci in reply to Jaybird says:

                So what three things have you done today that a prosecutor can bring to a grand jury? I’ve looked over everything I’ve done today, and over the rest of the week, and I come up with zero. If I had a stash of marijuana in my house I could, of course, be prosecuted for it, but knowing violations of well-known, if unpopular, laws are not what the people who screech about “three felonies a day” are obsessing about. They see a world where even normal, law-abiding citizens have to walk on eggshells to keep out of the clutches of prosecutors for doing seemingly innocent things. But it’s genuinely hard to commit inadvertent crimes. Even a conspiracy to distribute a product that can’t be sold somewhere — whatever one may think of the law preventing the sale of the product — requires someone to conspire to sell an unlawful product. People who do that know that they’re doing it. They’re not caught up in a vast, practically unknowable web of laws that could ensnare the innocent.Report

              • Jaybird in reply to CJColucci says:

                I plead the Fifth, thank you.Report

              • DensityDuck in reply to CJColucci says:

                “what three things have you done today that a prosecutor can bring to a grand jury?”

                well I haven’t mowed my lawn lately, that’s a startReport

    • Burt Likko in reply to Saul Degraw says:

      There’s hyperbole, and then there’s accusing over 138 million people who didn’t vote of committing voter fraud.Report

  5. LeeEsq says:

    WW1: The bar exam is something that is really tricky to deal with. Most bar exams are easy enough that most people pass them on the first time with a few exceptions. They aren’t really truly doing gate keeping work in that regard. In other countries, the bar passage rate is well under 10% of those who take it. Not even the three toughest American bar exams, California, Florida, and New York, come close to this. But there are certain things that normal business people are allowed to do that lawyers and other professionals can’t do. The entire process of being a lawyer is really good at drumming this into most law applicant’s heads even if not perfectly.

    Personally, my crank theory and it is fine is that a big issue in the legal profession is that many of the ethical rules are good in theory but really don’t match real world conditions that well. The result is expensive legal services in some areas where people need it and some really unethical people taking advantage of it and making a muck of things. Immigration is pretty good example of this. There are lots of people engaged in the unlawful practice of law as notorios, agents, or travel agents depending on the community and they mess up a lot. They get a lot of immigrants into trouble but they are usually but not always cheaper than a real lawyer. The immigration system is way too complicated for people to navigate on their own but the number of lawyers available isn’t that high either.

    However, immigrants often feel more comfortable going to trusted members of their community more than lawyers on their own for help. The natural solution would be for lawyers to team up with these people in a sort of barrister-solicitor relationship. The legal rules prevent this though because you can’t share legal fees with non-lawyers except as a salary. Most of these people aren’t going to refer people they need help out of the goodness of their hearts. They want some compensation. This means that the end result tends to be worse for everybody.

    A lot of the ethical rules regarding the business end of the legal profession would work better if we had a distinction between barristers and solicitors. The solicitors would find the cases and do the initial work. The barristers will argue in courts. We don’t have that system.Report

    • Burt Likko in reply to LeeEsq says:

      But there are certain things that normal business people are allowed to do that lawyers and other professionals can’t do. I think I know what you mean, Lee — like representing or assisting both parties to a transaction? I know real estate brokers who see nothing wrong with representing both the buyer and the seller at the same time, taking a fee from both. My sensitive lawyer head explodes at the notion.Report

      • LeeEsq in reply to Burt Likko says:

        Beyond things like that and the extra care lawyers need to have with their client’s money, we aren’t even allowed to do the light boasting that other business people are allowed to do. If you go to a caterer to plan a party, it’s expected that the caterer is going to engage in some boasting over the competitors and say some stuff that isn’t necessarily going to be true if they don’t go to far into outright lying. Lawyers can’t really do that. For good reason but the legal business is a business despite our attempts to pretend otherwise and clients/customers want some guarantees we can’t give.Report

      • veronica d in reply to Burt Likko says:

        It shocks me that people will buy a house, but won’t she’ll out the money to have a real estate attorney review the deal. It’s a few billable hours versus a thirty year investment.Report

        • LeeEsq in reply to veronica d says:

          New York real estate law was specifically written to require the buyer, seller, and the bank to have a lawyer at the closing. Immigration lawyers in New York tended to have a side line in real estate closings as a result because by the time your clients were citizens and eligible for a federally guaranteed mortgage, you were the lawyer they were most familiar with.Report

        • Saul Degraw in reply to veronica d says:

          I’m a lawyer and we did not have a real estate lawyer review the deal before purchasing our condo. It is all very standard here. Plus the real estate market provides no such time for such nicetiesReport

        • Gwen Chucks in reply to veronica d says:

          30 year investment? It’s a $100,000+ investment. Were you a business, you’d be fired for not hiring an attorney, when that much money depends on a contract. (We hired an attorney. He found title issues back in the 1800s, and so we have title insurance. The last 3 lawyers hired by the real estate brokerages had failed to notice this, which shows the level of diligence they generally use).Report

  6. Marchmaine says:

    WWI: Of course? The studies are so you can understand the questions, formulate a proper response and deliver it constrained by time. Now if they remove the time constraint then, right after I complete my Master Sommelier exam, prepare for Marchmaine, esq.

    WW4: This is why the Gruyere cheese you have is so bad. There are some things that you can replicate, like the rennet, the type and quanityt of the milk, the culture, the additives and the techniques for making and manipulating the curds, and the curing process.

    What you can’t do is replicate the pastures that inform how the cheese tastes (other possibilities include ambient yeasts and other flavors) — which is distinctive in several (but not necessarily all) cheeses. Gruyere is one of them.

    Swiss cheese is the generic for Gruyere… the fact that people poached Gruyere in an attempt to differentiate from the wretched thing we call Swiss is not a reason to genericize this.

    Hill | Me | DeathReport

  7. Burt Likko says:

    After having seen the Oregon Bar and Oregon Supreme Court grant diploma privilege for in-state educated, in-state practicing attorneys during COVID and thereafter having heard nothing at all bad about those new lawyers as compared to their peers, I’m basically in favor of abolishing the bar exam entirely. The objective part of the bar exam is good for testing whether you know about five dozen discrete doctrines or ideas. Of which you will use maybe ten when you go on to actual practice, but whatever field you find yourself in you’ll need to learn a lot more than those ten ideas. The essay portion teaches you the ability to prepare coherent sentences that use key buzzwords and ostensibly draft an IRAC-structured essay on the fly. Which you won’t do at all in actual practice — if you need to do a brief, IRAC is a fine place to start if you have to start from scratch but there are templates and they are what the court expects you to adhere to; and you don’t need to write the damn thing in half an hour from abstract principles, you will have time and reference materials.

    As for the open-book format for the bar exam — that’s wonderful. If you were taking the Multistate Bar Exam or some variant of it and didn’t know, say, the character evidence rule or the MIMIC exceptions to it, if you can’t spot the character evidence rule in the first place you won’t know to look up the character evidence rule in the first place; if you do spot it, then you need to have studied and have some knowledge of FRE 404 before you go and look up the rule because without that knowledge and study a quick read of it isn’t going to do you much good, and if you do have that knowledge already and have already spotted the issue, well, that’s what they’re testing for so actually looking up the rule is nearly superfluous at that point. I don’t see that looking up the rule will make that much difference beyond the current bar exam study advice, which is “If you don’t remember the MIMIC exceptions, just make up something that seems plausible, state that’s what you think the rule is, and apply that rule.” Demonstrate that you understand what the rule is about, and demonstrate that you can apply the rule to the facts. Having an open book will just mean you need to take that much more time to get the rule exactly right than you did in a closed-book exam.Report

    • CJColucci in reply to Burt Likko says:

      I used to advise people who were having trouble remembering the MIMIC exceptions to the rule against using character evidence to replace it with the idea that character evidence is admissible to prove anything except what you really want to prove with it. That’s pretty much the prevailing “inclusionary” rule.Report

    • Saul Degraw in reply to Burt Likko says:

      I generally support the idea that being able to graduate from an ABA-accredited law school should allow one to practice for the bar exam. It is probably important to note that the U.S. is still on the light side of regulation here. U.S. lawyers can hang their own shingle as soon as they get their bar admission. I can’t think of any other country that allows this. Most require some period of being a ‘baby/apprentice lawyer.” Though most other countries make law an undergraduate degree but have notoriously harder bar exams or equivalents.Report

      • InMD in reply to Saul Degraw says:

        To the extent it’s a problem I think it’s more the cartel coming first plus the economics of practicing law. On the one hand there’s a huge need for legal services. On the other hand most of that need is among clients who aren’t able to pay for it. On the (metaphorical) third hand you’ve got the near complete conversion of law from a profession to a business. Nobody has time or inclination to mentor outside of the Big Law. And while I never was in that type of practice my understanding is that any kind of mentoring going on there is at best incidental.Report

        • LeeEsq in reply to InMD says:

          Law was always a business. The ethical rules designed to pretend it wasn’t a business were created so the British gentry and nobility could earn a living without having to be in trade. This became the basis of rules to make it hard for everybody but White Protestants of the right sort to practice law in the United States. The first and second generation Americans along with African-Americans that needed a more business like model for their practices were hampered by the rules.

          It’s also worse that the huge need for legal services is among clients unable to pay for it. A lot of the judgments will be against people who can’t pay damages either. That’s why you have these really loose connections to bring in a defendant that can pay at times in personal injury.Report

        • LeeEsq in reply to InMD says:

          For mentoring, my training as an immigration lawyer was to watch two hearings and and a few prep sessions and told to go do it. This happened in the first week on the job.Report

          • InMD in reply to LeeEsq says:

            I hear you on the history. The Third Tier place I went was founded to teach Catholics and Jews to practice back when they weren’t welcome in polite society. They retain a certain underdog ethos in their pedagogy that I respect, and I think has served me well.

            Same on the mentoring. I worked at a small hellhole firm for a handful of dimes plus eat what you kill that ended in a fight with the guy who ran the place over unpaid wages. Admittedly though I have had some good people that I’ve learned from since going in house, and have tried to pay it forward to junior lawyers I work with.Report

            • LeeEsq in reply to InMD says:

              I was paid for my work and had a top notch team of paralegals to help with the paper work but it was pretty much learning to sink or swim for the lawyer stuff. My boss sent to the Second Circuit to make oral argument without anything close to preparation. I had to master the brief and arguments myself.Report

        • Saul Degraw in reply to InMD says:

          Mentorship seems to have gone the way of the dodo if and when it existed at all. My legal ethics professor told us that when she was an associate at a big firm, everything she used to write was reviewed by a partner with a red pen and her present. One of the partners I work for now also has similar stories of mentorship from when he was a newbie lawyer at a big firm.Report

          • Oscar Gordon in reply to Saul Degraw says:

            Not just in law either.

            Mentorship that is not billable to the client/customer, is overhead, and no one is allowed to bill time to overhead.Report

            • LeeEsq in reply to Oscar Gordon says:

              During the collapse of the legal market, which occurred at the same time as 2008 Great Recession, a lot of the clients of Big Law noticed that they were paying a lot of money to have new associates at the firms stuff that didn’t need a lawyer to do and could be easily done by non-lawyers. They started complaining and this led to big law not hiring as many people and that further reverberated through the legal community.

              Mentorship existed in a world that might have been competitive but also had, for lack of better word, gentlemanly ethos about it. This doesn’t exist anymore. The more globalized nature of the economy requires a now now now attitude and that goes against mentorship.Report

    • Saul Degraw in reply to Burt Likko says:

      I am not sure what to do about CBA law schools though.Report

    • LeeEsq in reply to Burt Likko says:

      There should at least be one bar exam for the entire United States rather than 50 plus bar exams for each state, district, and territory.Report

      • Philip H in reply to LeeEsq says:

        The Napoleonic Law Code in Louisiana would like a word . . .Report

        • Burt Likko in reply to Philip H says:

          Louisiana is not substantively all that different from the rest of the country. They’ve even got around to adopting the Uniform Commercial Code. Perhaps if I practiced criminal law or real estate law I’d feel differently but I haven’t looked at those areas.Report

          • Philip H in reply to Burt Likko says:

            My federal land management colleagues universally hate practicing in Louisiana. During Deep Water Horizon we had a small army of attorney’s working 24-7 getting access rights and temporary easements because land that has become permanently submerged is still considered private land. So we’d be running across an open bay, miles from shore, and hit a line of pipes sticking up out of the water with No Trespassing signs on them. Absent written consent, we couldn’t go look for oil much less send clean up crews.

            I don’t know the criminal side, but I do know my several friends who are practicing attorneys had to take two bar exams after law school to admitted at bar anywhere else.Report

            • Burt Likko in reply to Philip H says:

              Having just read Termination Shock depicting land reclamation and loss efforts on the below-New Orleans Mississippi Delta I can only say “yikes” combining this story as well as what Stephenson describes. Like literally tomorrow there could be water where today there is land, or vice versa. And, as you point out, potentially there’s extractable oil somewhere below all of that so it really matters economically.Report

              • Philip H in reply to Burt Likko says:

                Its also why all thee coastal wetland restoration programs down here are so expensive. All that land – while submerged – is in private hands and you can’t turn it back into emergent wetland without compensating land owners . . .Report