Constitutional Daily

Founding Principles

The Tenure Paradox - Robot pimp

Slap on the Wrist for "Non-Consensual Sex" - Lampshade, Esq.

Intelligence: The Gathering - Graphic and Gratuitous

Grads are the New Illegals - Robot Pimp

Meet Entitlement Eric - Robot Pimp

Wherein I Solve World Peace - Lampshade, Esq.

A Necessary Delusion - Shadow Hand

Do you even need to shave overhead? - Lawyerlite

LSAT Jenga - Publius Picasso

Time, Place, and Manner

...Should have some links here or something.


Constitutional Daily

Should employers get to harsh your mellow?

E-mail Print PDF

As you likely recall, in November, citizens of Colorado voted to pass Amendment 64, allowing personal use and regulation of marijuana for adults 21 and over.  As the Amendment 64 task force deals with the bureaucratic jungle of the enforcement regulations and guidelines, people want to know if employers can regulate employee marijuana use off the clock. And according to the text of the amendment, they can. Some argue that employer policies could essentially nullify the effect of the amendment for everyone who’s employed. So what?

The statutory language is pretty clear and pretty broad, saying, “Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession ... of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees."

So, employers get to determine if they feel like accepting marijuana use from their employees. Sounds like the type of decision typically left to the employer. Just because the state law allows something doesn’t mean an employer has to. There isn’t a Colorado law requiring that everyone wear pants in public, but most employers probably have some kind of dress code. Apples and oranges, you say? Maybe.

Throughout the legalization of marijuana debate, proponents of legalization have argued that marijuana should be treated like alcohol: regulated, taxed, and available only to those over a certain age. So, to compare fruits, what employer tells employees they can’t drink on or off the clock?

We aren’t saying it can’t happen. Just that it typically doesn’t. Employers generally don’t deal with the details of that kind of thing. As the above editorial suggests, many employers simply don’t have the time or interest to be lifestyle police. This doesn’t mean they can’t or won’t. It just means it’s rare.

What the amendment doesn’t say is that employer policies have to make sense. Sure, we’d like to think employers would create policies that are prudent and reasonable and logical, but do they have to? Aren’t they allowed to create draconian policies? After all, it’s their place of business. Their house, their rules. You just work there.

If you go out in public and make an ass of yourself in some capacity, and you can be linked back to the company, you’re probably going to face some repercussions at work. The law doesn’t require that your company has to have a policy saying “hey don’t go out in public and make an ass of yourself” for this to happen. That guy that got fired for yelling at a Chick Fil A employee probably didn’t have a clause in the employee handbook saying it was against company policy to yell at Chick Fil A employees.

And yet, most of us can agree that in some respects, that guy getting fired makes sense. So what’s the difference in that and marijuana (or alcohol) prohibition policies? Having company executives clearly and publicly display their idiocy is bad for a company’s reputation. Namby Pamby and BL1Y drinking at home and recording Blind Drunk Justice hardly merit the same concern.

So, yeah, Colorado employers can create policies that prohibit employees from using marijuana off the clock. And yeah, we’d like if they made sense. But they probably don’t have to. After all, who’s going to protest? If you don’t want to comply, they can find someone who will.

Besides, if an employer tries to take things too far, the ACLU or a pro-pot group will likely step up and challenge the policy anyway. So relax. Let the employer go nuts.

Overheard at the SOTU

E-mail Print PDF

So this year out State of the Union drinking game was a bit off, though you'd still get pretty smashed just from the deficit and our children. Next year we're probably just going to do shots every time the president says "And that is why I am proposing a new..." Do a second shot if he offers no explanation as to what that thing he just proposed is.

But now the speech is over, and so it's time to analyze the dumbest thing said, but first we'll take a look at a doozy from Marco Rubio's response:

Every dollar our government borrows is money that isn't being invested to create jobs. And the uncertainty created by the debt is one reason why many businesses aren't hiring.

Technically speaking, this is true. When we borrow a dollar, that's a dollar that China can't use to invest and create jobs. Although, borrowing by definition means someone else is investing... but never mind that. When our government gets more money, that's more it can spend on initiatives that will help create jobs. What he probably meant was that when we raise revenue by taxes (not borrowing) that our people have less to invest and spend in the economy. We're quite confident that's what the message was intended to be, since it's the message Romney ran on, and the Republic response to the SOTU was little more than trying to rerun the last election. Spoiler GOP: You lost, time to maybe get a new message.

Even correcting Rubio's statement, that every dollar our government raises in taxes is money that isn't being invested to create jobs is also not true. Wealthy people, the ones Obama wants to raise taxes on, do spend a lot of money investing, but they also horde money. Dollars sitting in some rich person's bank account are not being spent on investments.

Rich corporations aren't any better. In fact, they're worse. They have to deal with quarterly earnings reports which forces them to focus on short term gains rather than long term investments which might drive them into the red for a few years before the investments pay off. This is why Dell recently was taken private, to free the company up for doing long term projects without pressure from stockholders for a quick turnaround.

The federal government does waste a whole lot of money, but it's simply not true that every dollar it taxes and spends is a dollar that would have been invested in the market. Tax from the right people and spend on the right projects, and the government can strengthen the economy. We're just left with the question of whether it will actually do that, and whether Rubio's speech writer understands the difference between taxes and loans.


Moving on to the President's silliest line:

Together, we have cleared away the rubble of crisis, and can say with renewed confidence that the state of our union is stronger.

How much stronger exactly?

We know our economy is stronger when we reward an honest day’s work with honest wages.  But today, a full-time worker making the minimum wage earns $14,500 a year.  Even with the tax relief we’ve put in place, a family with two kids that earns the minimum wage still lives below the poverty line. [...]

Tonight, let’s also recognize that there are communities in this country where no matter how hard you work, it’s virtually impossible to get ahead.  Factory towns decimated from years of plants packing up.  Inescapable pockets of poverty, urban and rural, where young adults are still fighting for their first job.

Minimum wage is $7.25, and if you're working 2000 hours, that comes out to $14,500. The minimum wage in 2009, before Obama's rubble clearing began, was also $7.25. (The bill bringing it up from $6.55 was passed in 2007, under Bush, but didn't take effect until July 2009.) Had minimum wage kept pace with inflation, a person earning min wage would be making an extra $1000 a year, and when you're earning $14,500, that's a whole lot of extra money.

For those people at the bottom, the state of our union isn't stronger. Maybe they could have used that extra thousand bucks to pack up and move out of their inescapable pocket of poverty.

Forget the pay gap, what about the personality gap?

E-mail Print PDF

Yesterday NPR briefly discussed jobs with the smallest and largest gender pay gaps. Using data from the Bureau of Labor Statistics, they showed numbers for 11 jobs in each category.

Just in case you need the reminder, the wage gender gap is the difference in what men and women in the same position earn as a wage. Self selection blah blah maternity leave blah blah blah, the gap can be exaggerated, but even the most conservative analysis still shows there is a wage gap.

The biggest gap is with insurance sales agents, with women earning 62.5% of what men earn; the smallest is for pharmacists, earning 99.6% of what men earn. Beyond that, the gap opens in the other direction, with women earning 2.6% more than men as counselors, and 3.7% more as health care technicians. The national average across all positions is 80.9%.

For paralegals and legal assistants in 2012, women earned 94.1% of what men do, putting them in a pretty good position, comparatively speaking. Female lawyers do slightly worse, at 91.9%, but still cut the national gap in half. So, pat yourselves on the backs, law firms. You’ve still got a ways to go, but you’re considerably less discriminatory than the rest of the nation.

And now for the bad news.

Looking at the trend in gaps across different fields may reveal something lawyers don’t want to hear. Generally speaking, jobs with the highest gaps were related to sales, marketing, and education, jobs where the personality of the employee is key to success. On the other end, jobs with the smallest gaps were more mechanical. Not machinist, but jobs where employees are fungible, such as data entry, pharmacy, cafeteria workers, and warehouse clerks.

For all the talk about “creative problem solving” and being “a good fit” and “personal brands” (gag), based on pay disparities it looks like legal practice is pretty rote, and all that really matters is your ability to churn out form documents and fill up your time sheets. The reason gender makes less of a difference in law is not because lawyers are so educated, or so progressive. Your gender makes less of a difference because you make less of a difference.

So, congratulations women. You’re making headway in a profession that will soon be dominated by robots (as if you don’t already think that about your coworkers). But look on the bright side, at least the fembots will get fair compensation.

Why we can't have nice law schools

E-mail Print PDF

Back in the 1990s, the ABA got slapped across the mouth by the Justice Department for engaging in all sorts of anti-competitive practices, like mandating that every professor work no more than 3 hours a day, get summers and alternating semesters off, and have access to no fewer than three adorable puppies twice a week. The DoJ filed suit, and the ABA folded and entered into a consent decree that would govern their actions for the next ten years.

Among the new regulations were rules that the Council of the Section of Legal Education and Admissions to the Bar, the Accreditation Committee, and the Standards Review Committee would be composed of no more than 50% deans and professors. It's a pretty good rule. You do need deans and profs on these committees, because they bring important insight and expertise to the whole legal education thing, but the consent decree wanted to make sure that there wasn't regulatory capture.

So, years after the consent decree stopped being in force, what happened to the composition of these three bodies?


Section of Legal Education

Kent Syverud - Dean, Washington University School of Law

Solomon Oliver, Jr. - Chief Judge, U.S. District Court, Northern District of Ohio [Also professor from 1982-1994 at Cleveland Marshall College of Law, and associate dean there from 1991-1994]

Joan Howland - Associate Dean and Professor, University of Minnesota Law School

Raymond C. Pierce - Partner, Nelson Mullins Riley & Scarborough LLP [Also dean of NCCU from 2005-2012]

John F. O'Brien - Dean, New England Law|Boston

Jane H. Aiken - Professor and Director of the Community Justice Project, Georgetown University Law Center

Rebecca White Berch - Chief Justice, Arizona Supreme Court [Also Director of the Legal Writing Program at Arizona State from 1986-1991 and 1994-1995]

Leo A. Brooks - Retired Army General, and formerly assistant professor of military science at Central State University in Wilberforce, Ohio

Paulette Brown - Partner and Chief Diversity Officer, Edwards Wildman Palmer LLP

Edwin J. Butterfoss - Associate Dean and Professor, Hamline University Law School

Michael J. Davis - Professor, University of Kansas School of Law

Antonio García-Padilla - Dean Emeritus and Professor, University of Puerto Rico School of Law

Tracy Allen Giles, Esq. - Partner, Giles & Lambert, P.C.

James M. Klein - Distinguished Visiting Professor, Charleston School of Law

Cynthia Nance - Dean Emeritus & Nathan G. Gordon Professor of Law, University of Arkansas School of Law (Fayetteville),

Jequita H. Napoli - Special Judge, Cleveland County District Court, Norman, Oklahoma

Gregory G. Murphy - Attorney, Billings, Montana

Maureen A. O’Rourke - Dean, Boston University School of Law

Erika Robinson - Law Student Division Member, University of South Carolina School of Law, J.D. Candidate, 2013

Morgan T. Sammons - Dean, California School of Professional Psychology, Alliant International University

Edward N. Tucker - CPA/ABV, Ellin & Tucker


Current law profs/deans: 11

Former law profs/deans: 3

Non-law profs: 2

Other: 6

Being generous to the ABA, the Section is 50% law profs and deans. But, counting current and former law profs we get 64%.


The Accreditation Committee is 9 current law profs and deans, 2 former, 3 non-law professors, and 5 others. So, 47% current, and 58% current and former.

For the Standards Review Committee, things are even worse. 8 current law profs and deans, 1 former, 1 non-law professor, and 4 others. 57% current profs, and 64% current and former. And two of those non-professors hold executive offices at universities that have a law school. So if you want to count current profs, former profs, and others with a direct interest in law schools, we're up to 79%.

Anyone who's ever studied corporate governance will know that it doesn't even take 50% of the votes to have control. 50% means that the rest of the people in the room need to be a united front against you, which is rare, and you can effectively exercise control with a pretty small voting block. Not that professors are necessarily a united front, but when proposals are on the table that will slash their pay and result in massive layoffs (such as reducing law school to a 2 year program) you can bet that the Department of Justice was right not trust professors to govern themselves.

2013 State of the Union Drinking Game

E-mail Print PDF

Small Drink

Fair deal / Fair shake / Fair play (drink for any)

Assault weapon


Our children

Brothers and sisters


An impediment to voting not explicitly attributed to willful voter suppression




Big Drink

Magazine capacity

Newtown (pronounced "Newton")

Republican party

His children


Deficit (as less than 1 trillion)



Any reference to voter intimidation/suppression

Reference to non-Christian Americans



Fair deal / Fair shake / Fair play (all three within 1 minute)


Machine gun ban

Imminent threat

Reference to atheist or agnostic Americans

"The state of our/the Union is strong."


Drink until you pass out and wake up back in reality

Extrajudicial targeted killing of American citizens without due process

Flying Spaghetti Monster / Bertrand Russel's tea cup / Acknowledging that the invisible sky dictator is fake and a ridiculous basis for forming national policy

Sputnik moment

Experiential education: The next big rip-off?

E-mail Print PDF

Last week, the ABA held its mid-year meeting in Dallas, and one of the big events was the meeting of the Task Force on the Future of Legal Education. During the period when about 15 speakers testified, two themes continued to come up (in addition to the overall theme that the cost of tuition is too damn high): the third year is useless and experiential education is awesome.

That the third year is useless should be a no-brainer. Of course professors defend it, but there's the no brain element...

The third year is plainly useless because there are absolutely no guidelines for what it must contain. Aside from professional responsibility and con law, there's really nothing mandated for students outside of the 1L curriculum. You can spend your third year doing clinics, taking black letter law classes, or you can fill it with nothing but Law and Literature, Law and Film, Feminist Jurisprudence, Animal Rights, and What the Jews are Supposed to do About the Gentiles.

The question facing the ABA now is whether to allow schools to ditch the third year, but the professors who want to protect their incomes and who have a great deal of influence over the ABA are likely to not let it happen. So now the question is passed to the schools: how to make the third year valuable.

The answer that keeps coming up is experiential learning, and specifically externships. And here comes the new ripoff.

Are externships (and don't ask us how they differ from internships) valuable to students? We're willing to give that an unqualified Yes. It's probably the most valuable thing you can do in law school. The problem is the cost model.

Externships are cheap, but they're not free. There are some administrative overhead costs, such as having a staff to help students get placed into programs. It's cheaper than a full-time tenured professor though. The problem is that schools are likely to keep both. They'll offer externships and still keep all their other classes, despite those other classes having much lower demand because students are spending their time elsewhere. So, we get this great new low-cost model for filling out the third year, and it ends up increasing the cost of operating a law school.

And just to make matters worse, students still pay the same amount of tuition.

Many undergraduate programs have already figured out this scam. They require 6+ hours of internship credits, place the entire responsibility for finding an internship on the students, and then charge them the full rate of tuition for a class that costs the school nothing. Watch for this coming to a law school near you. Half the third year will be externships, students will still pay the full price, and professors will find their class sizes cut in half, leaving them with a more enjoyable work environment and many fewer papers and exams to grade.

As far as the schools are concerned, it's win-win. As for the students? Whatever, they can just go on government welfare to pay off their loans.

Pow! Right in the LSAC!

E-mail Print PDF

Last week a California judge issued a preliminary injunction on enforcement of a bill that would ban the LSAC from reporting to law schools when LSAT test takers received extra time on the exam.

At the risk of being redundant, this kind of reporting, often called flagging, is not new for the LSAC.  It’s business as usual. When an applicant receives extra time for the LSAT, the LSAC already sends a statement along with the applicant’s score “advising that the applicants score(s) should be interpreted with great sensitivity and flexibility.”

This is something that test takers seeking this accommodation are aware of when they apply for the accommodation; it’s all located on the same page, with clever headings like “additional considerations.”

The injunction was issued in large part because the law banning flagging directly targeted the LSAC: no other standardized testing organization was mentioned (not even the organization that administers the MCAT, which also flags scores).

The singling out of the LSAC aside, there’s a pretty reasonable argument on behalf of continuing to flag LSAT scores. While the specifics aren’t uniform across the spectrum, law school grades are at least in part graded on a curve, meaning students are constantly compared to one another for purposes of determining grades.

The LSAT is not much different, nor should it be. If you buy into the argument that the LSAT is a good indicator of law school success – and law schools do – then maintaining the integrity of the LSAT “curve” is critical to the accuracy of the score.


Sure, there’s the argument that flagging isolates test takers who receive extra time, and that’s correct. But the LSAT, just like law school and much of legal practice is a competition, and if you’re competing under a different set of rules then the people evaluating you based on your score ought to know. In fact, if you’re taking the LSAT with extra time, you’re not just taking it with different rules – the time pressure is essential to the LSAT, so you’re really taking a materially different exam. Harder to argue that this fact shouldn’t be disclosed.

And it’s even harder to argue that you’re being harmed by the disclosure. Law schools are incredibly liberal institutions and aren’t exactly known for discriminating against people with disabilities. Besides, schools really only care about LSAT numbers for reporting to US News and improving their rank, so they don’t care how you got your score so long as it raises their median.

If you’re worried about being treated differently because of your disability, there’s a very easy solution. Just don’t request extra time. If you want to be treated the same, then really be treated the same. Or even better, you can just not take the LSAT, avoid law school, and go do something productive with your life instead. Sure beats complaining that your masochistic career goals aren’t accommodating enough.

Valdosta State University President Gets Tough Lesson On Meaning of "Upon Advice of Counsel"

E-mail Print PDF

If you're a fan of The Fire (Foundation for Individual Rights in Education), then you're probably familiar with the story of Hayden Barnes, a student at Valdosta State University who was expelled for criticizing university president Ronald Zaccari's pet parking garage project. After posting a collage on Facebook, which he sent to no one, Zaccari declared him a "clear and present danger" to the university and had him administratively withdrawn without a hearing. [See a rather crappy black and white scan of the collage here.]

Long story short, Fire got involved and five years later a jury found Zaccari personally liable for $50,000 in damages for violating Barnes's rights to free speech and due process. [More details here.]

We're going to skip over most of the legal battle though and get down to what has to be the worst legal defense in the history of legal defenses. The university president tried to argue that he had qualified immunity, an argument rejected at the district level and on appeal. Qualified immunity is a defense that protects government officials (state university personnel are included) when they engage in an action that violates someone's civil rights but which was not a clear violation of established law. For instance, if a search warrant contains a novel defect, and at trial the court find that the execution of the warrant was unconstitutional, the police officers executing the warrant will probably be immune from personal liability because the defect was novel. The Fourth Amendment might still cause the evidence to be tossed out, but you can't go after the cops for damages because we don't expect every government official to be a constitutional scholar capable of figuring out issues that are not already established law.

In this suit, Zaccari was faced with the fact that case law already clearly established that students facing expulsion from public universities are entitled to due process. For the qualified immunity complaint, Zaccari argues that he sought advice from the in-house counsel at Valdosta and relied on that advice. We'll let you read why exactly that argument failed:

The court is unpersuaded by Zaccari’s argument that he is entitled to qualified immunity because he “sought out legal advice” from Gaskins and Neely and relied on their advice. The law is clearly established in the Eleventh Circuit that “due process requires notice and some opportunity for hearing before a student at a tax-supported college is expelled for misconduct.” Dixon v. Alabama State Board of Education, 294 F.2d at 151. Moreover, the court finds Zaccari’s assertion that he relied upon the advice of Gaskins and Neely disingenuous. The undisputed facts show that Zaccari ignored the lawyers’ warnings that withdrawing Barnes would require due process in executing his administrative withdrawal of Barnes. The court declines to accept Zaccari’s argument that because he sought legal advice from Gaskins and Neely, both of whom advised against the President’s withdrawal of Barnes, Zaccari is still entitled to qualified immunity even though he took action contrary to the advice. Accordingly, the court denies Zaccari’s motion for summary judgment as to Count 4 of Barnes’s complaint.

"How was I supposed to know what I was doing was unconstitutional? I even asked my lawyers about it!"

"Your lawyers told you it was unconstitutional, you idiot! Now pay $50,000."

[Read the full opinion here.]

Maybe the Post Office and DMV need to have a chat

E-mail Print PDF

Neither school zones or red lights or gloom of night stays these couriers from the moseying ambivalence of completing their rounds. Wait, is that not USPS’s creed? Actually, they don’t have an official motto at all. Just an inscription engraved on the outside of the James A. Farley Post Office in NYC, which is ripped off from the Greek work of Herodotus. Anyway, what were we talking about?

Oh, right. In East Cleveland, Ohio, the Postal Service is claiming immunity from $700 worth of traffic tickets. According to their senior litigation counsel, the Postal Service is exempt from paying the fines because they “enjoy federal immunity from state and local regulation.”

The $700 comes from running five red lights, and two instances of speeding in a school zone. To be fair, school zones may be the only areas where a mail truck is capable of getting far enough above the speed limit (typically 11mph) to get a ticket.

The traffic offenses were recorded via camera by American Traffic Solutions (ATS) and then billed to the Postal Service. And then the finger pointing begins.

USPS itself may have immunity, but its employees do not. ATS points out that USPS’s own handbook says employees are required to obey traffic laws and rules. But the citations weren’t issued to employees; they were issued to the Postal Service.

The camera citation includes a picture of the license plate of the vehicle while the vehicle is committing the alleged offense. No citations were issued by police officers in a traffic stop, and no citations were issued to individuals.

One would think it wouldn’t be exceptionally difficult to look at the vehicle license plate, find out who drives that vehicle, and then ascertain who was driving on the date and at the time of the citation. But what do we know? Maybe Postal Service employees play a USPS version of musical chairs after driving off the lot every morning. Maybe the time that game takes, coupled with the confusion of a potentially new route every day is part of the delay in delivery. Maybe we’re making shit up.

The Postal Service claims that no legal system exists to transfer liability for the tickets from the Postal Service to its employees. We’re not so sure about that one. Assuming this game of musical postal trucks to be a figment of our imagination, it would seem that the Postal Service could pretty easily follow our suggestion above and provide the names of those drivers to the prosecuting authority. Then the matter is out of their hands and they aren’t responsible. Sort of like that package you had insured that got lost. Sure, you had it insured up to $200, but you didn’t really expect to get more than $60 for it, right?

If someone really wants to prosecute this, make them do the work for it. Seems plausible that someone could amend the complaint, or perhaps even re-file it.

Speaking of working for it, the Postal Service’s senior litigation counsel makes $118,645 a year. That’s $57 an hour if she works 40 hours a week every week of the year (which is unlikely, so her actual hourly rate is likely higher). Even at $57/hour, if she spends more than a work day and a half dealing with this in any capacity, it costs the Postal Service more to pay to her to “handle” it than it would to pay the tickets.  Then again, with billions of dollars of deficit, what’s a few hundred more?

The main source of revenue the USPS uses to pay her salary is junk mail. According to some, junk mail is beloved to seniors, sometimes the only communication they receive, and makes them feel like they’re part of the real world. So, in order to make sure that junk mail is delivered in a timely manner to grandma, we’re going to send mail trucks doing 41+ in a 25mph school zone, potentially killing the grandkids who can offer actual interaction with the outside world.

Or maybe grandma is in cahoots with the post office, and this is revenge for not writing her a thank you note last Christmas. And no fines, legal fees, or other wasteful spending will deter her plan. It’s not like she’s going to be around to pay off the debt.


Do ABA standards protect against professor malfeasance? No.

E-mail Print PDF

Yesterday Above the Law broke the story of one of the biggest grading SNAFUs of all time. Fordham law professor Robert Kaczorowski used for his con law exam questions that had been written by another professor, and made public. Apparently the answers had also been made public, and so students using that other professor's exam as a study aid gained a huge advantage over their peers. The school's initial response was to allow students to take a new exam and accept the higher of the two grades, but this plan was quickly scrapped and replaced by the chance to have the grade replaced with the average of the two test grades, or the average of grades from other classes that semester.

And Fordham just said fuck it. Because of the grading irregularities, students could not use their con law grade in calculating their GPA or class rank. Vice Dean Shiela Foster explains:

We (the administration) understand that this is not ideal, and may even seem unfair, from your perspective. However, we have sought to balance the equities involved, including the fact that other Constitutional Law sections are obligated under our rules to adhere to the mandatory curve.

Balance the equities my aching ass! If you wanted to balance the equities, you'd grab Kaczorowski by the ear, drag him to his office, and force him to write a new exam, administer it to the students, and have that one grade be the basis of the class grade. Sure, it might be unfair to students who did well on the first exam, but since it's graded on a curve, the students doing the best will largely be those who had the exam answers before hand, so it's still a pretty equitable outcome.

But what Foster means by balancing the equities is that she had to find a solution that would require no extra effort on the part of the faculty or staff, especially the faculty member whose screw up caused the whole problem. The balancing test goes something like this:

1. Does anyone involved have tenure?

End of balancing test.


On ATL a commenter asked if this violates the ABA standards. At first we thought this a laughable idea, because the ABA standards are incredibly lax. But, then decided that the balance of the equities required at least taking a look. Standard 301 provides:

(a) A law school shall maintain an educational program that prepares its students for admission to the bar, and effective and responsible participation in the legal profession.

(b) A law school shall ensure that all students have reasonably comparable opportunities to take advantage of the school’s educational program, co-curricular programs, and other educational benefits.

And Interpretation 301-3:

Among the factors to be considered in assessing the extent to which a law school complies with this Standard are the rigor of its academic program, including its assessment of student performance, and the bar passage rates of its graduates.

The case against the professor: Being graded in a single class, as well as having a cumulative GPA (which is used by the school in awarding certain honors) is an educational benefit, and the grading scheme in this class is far from reasonably comparative to other con law sections. Professors giving different exams is reasonable; a professor giving no graded exam is not.

The case for the professor: The grade isn't part of your education, and Interpretation 301-3 is meant to clarify 301(a) not 301(b).

Against the prof: Standard 401 provides:

A law school shall have a faculty whose qualifications and experience are appropriate to the stated mission of the law school and to maintaining a program of legal education consistent with the requirements of Standards 301 and 302. The faculty shall possess a high degree of competence, as demonstrated by its education, experience in teaching or practice, teaching effectiveness, and scholarly research and writing.

For the prof: This is a question of laziness, not competence. I can write my own exam. I chose not to.

Closing argument against the prof: Look at your stupid fucking face!

Closing argument for the prof: TTTenure secure!

Page 10 of 137

Philadelphia Lawyer, Unfiltered

The finest blend of analysis, advice, and fury on the internet. Sour mash, oak barrel aged, published at cask strength.


Most Recent Article:

In Defense of Risk (Happy Fourth of July)

All Articles from The Philadelphia Lawyer

Author Profile

The Robot Pimp

An in depth look at the emerging intersection of law, behavioral economics, and robots.

Most Recent Article:

The Tenure Paradox

All Articles from The Robot Pimp

Author Profile

Practice Makes Putrid

Legal practice would be all rainbows and buttercups, if it weren't for the clients, and opposing counsel, and co-counsel, and judges, and the law.

Most Recent Article:

Eat Mor Fiv Freedums

All Articles from The Namby Pamby

Author Profile

Gin and Glannon's

As Shadow Hand suffers through law school, the rest of us get a little Schadenfreude.

Most Recent Article:

I Just Work Here

All Articles From Shadow Hand

Author Profile

Irresistible Impulse

Dr. Rob Dobrenski's daring expedition into the psychology of lawyers and the law. (Not a substitute for a life well lived.)

Most Recent Article:

You're Not a Failure, You're a Narcissist

All Articles from Dr. Rob

Author Profile

Graphic and Gratuitous

Sometimes cartoons are the highest form of communication. Those times are known as "most of the time."

Most Recent Cartoons:

Intelligence: The Gathering

All Cartoons

There And Never Back Again

Defunct Big Law attorney BL1Y shares his misadventures as a writer who accidentally went to law school.


Most Recent Article:


All Articles from BL1Y

Author Profile

Lampshade, Esquire

We're dealing with some technical difficulties here. Hold up a minute.

All Articles From Lampshade, Esq.

Staff Infections

News, humor, and other non-billables from our underpaid, uncredited, unsexy staff.


News Articles

Smaller News Bits

Large Numbers of Law

Mixed Bag of Lawesome


Scofflaw Multistate Bar Review