Nuts & Boalts

Kill the Ump!-ire Analogy

2009-07-13T16:31:00.000-07:00

Apologies for bumping the thread below, but a thought I had in my law school days is relevant again with Sotomayor’s confirmation hearings. As I'm sure we all remember, Chief Justice Roberts compared the role of a judge to that of an umpire, saying that “judges are like umpires. Umpires don’t make the rules; they apply them.” In the past two years this analogy has become dogma and been repeated ad nauseam. At today’s hearing no less than five senators (Feinstein, Feingold, Durbin, Coburn, and Schumer) invoked the analogy, with Democrats accusing Roberts and Alito of not acting like umpires.

Roberts was correct that judges are like umpires, but he meant this comparison only in the narrowest possible sense. What he failed to understand (and the senators and media also fail to understand) is that calling balls and strikes, and fulfilling the other duties of an umpire, is not a simple matter. Much like a good judge, a good umpire must apply sometimes vague rules to disparate situations and individuals, exercise discretion, and use his or her reasonable judgment to reach fair results.

Rule 2.00 of the MLB rule book states the following:

“The Strike Zone is defined as that area over homeplate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the kneecap. The Strike Zone shall be determined from the batter's stance as the batter is prepared to swing at a pitched ball.”

This rule is inexact at best, and indecipherable at worst. Simply mapping out the contours of the strike zone would be a challenge, but to apply this squishy definition to actual game play proves far more difficult. The strike zone is constantly changing, adapting to players’ different sizes, shapes and stances. And, as any fan and player can tell you, every umpire has a different strike zone—one might call high pitches a strike, another may call inside pitches a strike, while another may give veteran hitters a bit of slack. Interestingly for purposes of this analogy, the strike zone has also evolved over time. The rule has been changed no less than a dozen times, and a full six times just since 1950, with the most recent change coming in 1996.

A quick browse of the rule book beyond balls and strikes reveals several situations in which, instead of a clear rule, an umpire is commanded to use his reasonable judgment. For example, in Rule 8.02, an umpire must use his judgment as to whether a pitcher intentionally threw at a batter—if the umpire feels that the pitcher did so, he has a choice of remedies. Rule 9.02, in fact, specifically states that umpire decisions such as fair or foul, ball or strike, safe or out, “involve judgment.”

Perhaps Chief Justice Roberts would be some type of super-umpire who would know exactly what was a ball or strike (and who would never deviate from that oh so perfect strike zone), and perhaps he is omniscient and so would not need to use his personal judgment to determine whether a pitcher was intentionally throwing at a batter.

I doubt that is the case. The reality is that, much like a judge, umpires are given difficult to interpret rules that must be applied to constantly changing and challenging situations. Implying that doing these jobs well requires nothing more than a mechanical interpretation of clear rules is a bush league argument, belying the difficult decisions each faces and belittling the qualities necessary to succeed at either profession. "Judges are like umpires" is the Juan Pierre of legal analogies—celebrated by the media and old folks despite its clear shortcomings when subjected to the slightest of scrutiny. Here’s hoping Judge Sotomayor sends the analogy to the bench once and for all.

*A quick search after writing shows my thoughts here aren't totally original. No doubt this is the Double A version of the good stuff others have previously written.

Sotomayor Hearings Open Thread

2009-07-13T10:44:00.000-07:00

Thoughts?

So far I'm worried that this wise Latina will take away my guns and apply Norwegian tort law. [/sarcasm].

Tip of the Hat

2009-07-06T17:06:00.000-07:00

As a commenter int he thread below points out, Justice Ginsburg has hired a Boaltie for (presumably) OT 2011. So major congrats to GS. (And let's keep it at that level of specificity please).

BCS: Time to Drop the C

2009-07-06T13:40:00.000-07:00

The Senate Judiciary Subcommittee will hold a hearing tomorrow (Tuesday, July 7th) entitled "The Bowl Championship Series: Is it Fair and in Compliance with Antitrust Law?" It will be broadcast live on the interthigny here. Watch it, see what you think, and then call your senator's office. As for me, I think it's high time these greedy conspirators stopped gang-raping our national pastime. I'm not counting on this hearing accomplishing much, but here's hoping!

Do any of you antitrust gurus care to weigh in on this?

Going OSCAR Wilde

2009-07-05T10:56:00.000-07:00

Quick clerkship question here. For the last month I have been watching judges in OSCAR hire left and right, presumably from the host of graduates and alumni who are not constrained to the hiring plan. It's frustrating to watch the alumni peck away at my judge list, but then that's the way the cookie crumbles sometimes. I know my place, and my place is the hiring plan: Boalt "adheres to the hiring plan" which means that all rising 3L's must wait until early September to apply for clerkships, with the caveat that the CDO will support early applications to judges who have been known to hire early from paper applications.

Presumably one must identify these judges by word of mouth. But by definition they all have one feature in common -- they all accept paper applications. I know that some students have already resolved to 'de-couple' their paper applications from the mass mailing melee, by sending them early. I haven't made up my mind on that one, yet, but my question is this: is it wise to forsake OSCAR? Given the tighter competition this year, would it be wise to apply early to any judge who accepts any paper application? Could it hurt me to send early paper applications to judges who accept both? Or is there some sight-unseen benefit to the hiring plan that I have yet to discover?

Scratch the above. I just realized I was beating around the bush. My real question is this: absent an explicit request from a judge, why should I adhere to the hiring plan?

Now before anyone flips out, I'm not announcing an intention to go rogue, or anything. I'm merely confused. Could somebody please explain to me what good the hiring plan is for Boalt 3L's?

"I'm Gunna Pass this Damn Thing" Thread

2009-07-05T09:10:00.000-07:00

Here's a new thread that is meant to be more focused on bar prep study - questions, advice, mnemonics, bitching about lecturers, etc.

To help start it off, try this link to a prior N&B thread on helpful mnemonics.

Good luck everyone!

[Note: I'm going to try to keep this thread at or near the top to encourage use.]
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Bump #1 (6/23): Everyone feeling FAAABBUULLOUSS?

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Bump #2 (7/5): So July 4 has come and gone - now what?

Guess the Crazy Alaskan's Motivation

2009-07-03T16:50:00.000-07:00

So, Palin resigning from her governorship has got to be one of the dumbest political moves ever, right? There has got to be something bigger underneath this news that has not been revealed yet.

So, I thought we could play a little game. Whoever manages to correctly guess why Palin really left gets . . . uh . . . the honor of being right. Yeah, I don't really have anything to give you. But you can brag to all your friends.

Anyway, my theory is that she's dropping the governorship to take a job at Fox News (thus all the talk about trying to effect change "outside of government"). Although, I'd assume we'd have heard some stories about negotiations going on. But I'm sticking to my guns.

Big Changes in Big Law?

2009-07-01T19:08:00.000-07:00

I don't check the Shark very often, but was prompted by a commenter in the thread below.

TWO rather interesting tid-bits that work well together for a merged thread here:

First, Orrick announces tomorrow that it officially drops lock-step salaries. Very interesting (albeit confusing) system they're announcing there.

Second, law schools are conspiring with law firms to standardize OCI in the spring.

For as little change as these systems have seen over the years, the widespread implementation of either would be a rather groundbreaking event.

UC-XI

2009-07-01T09:45:00.000-07:00

HT to anonymous in the previous thread for linking to DE's op-ed in today's LA Times.

The short version is that California ranks 49th among states whose high school graduates go on to college, and that a fully-fledged cyber-UC campus (read: low overhead --> low tuition) might be a way to track kids toward higher education, "not just in Barstow but in Bangor and Beijing."

As a threshold observation, this certainly is an expression of our Dean's consistent, positive, progressive attitude, and an example of the kind of thinking and energy I admire. DE cares.

I do have some questions, though. First, what do Bangor and Beijing have to do with California's high school to college matriculation rate? Second, what's wrong with the community colleges we already have? Are they full? If not, then why? The kids who chose to avoid community college seem likely to avoid an online education, too. But I could be wrong about that.

Third, and more important, a big part of the problem is that California's educated population is shrinking, and nothing is being done to stop the bleeding. Meanwhile, other segments of the population are on the rise. This is a touchy subject, but put it this way: although the number of people in California continues to increase, the resident number of native-born California residents is declining. Why? They're going to Nevada, to Oregon, to Arizona, because they don't want to be here anymore. Would UC-XI help? My sense is that they could just as easily leave with an online degree as without.

That's the cynical take. There are others. Yesterday I logged on to the Department of Education's website and checked my total outstanding student loan balance. Some of those loans are a product of choices I have made. But most of it comes from the painful, expensive reality of a UC education. It's true that I'm willing to borrow against my future worth (which I suppose is a form of betting on myself -- how narcissistic), but maybe that shouldn't be what a high caliber education costs. Maybe the state should bear that risk, instead? If it wants to encourage more people to learn, maybe it could reduce the incredible financial burden an education incurs? I suppose UC-XI is way of doing just that.

Oh but wait, there is prop 13. And voter referendums. And the ridiculous priorities of the good folks up in Sacramento.

Okay, I'm rambling and I'll stop, but no wonder people see greener pastures on the other side of the Sierras. I can tell you first hand that it's actually pretty nice out there.

Real World-Probate Challenge

2009-06-29T19:55:00.000-07:00

For those of you looking for more essays to study for the bar:

Michael Jackson apparently died ~~intestate~~ with a purported will. You're the probate judge. Discuss.

For those of you looking for a distraction:

I must confess cracking a very wide grin at the news that MTV's director of programming is stepping down and that its ratings were down 20% last year. I've wrestled with the thought that maybe, just maybe, I'm outgrowing the network and nothing more. But I really think it's the network that's leaving me. Like a Greek cabdriver asked me on the Island of Rhodes, "Where is today's Pericles?", I ask, where is today's Beavis & Butthead, Daria, Singled Out, Road Rules, Celebrity Deathmatch, even TRL under Carson Daly? Am I just an old crank or has MTV gone down the toilet by constantly featuring those human vermin--I'm talking about you Mr. Creepy Flesh-colored Beard.* I don't even want to discuss VH1 for fear of getting a STD just at the mere mention of the network, but I'll just say three words: Pop-up Video.

* Credit: Joel McHale, who is my only source of MTV programming these days.

Kent Work?

2009-06-26T13:48:00.000-07:00

Convicted felon and I guess now former Judge Samuel Kent was the first sitting federal judge to be impeached by the House in something like 20 years.* Naturally I was excited for the upcoming Senate trial. But by resigning Kent is hoping to avoid a Senate conviction, which brings us to obscure constitutional question time.

For those of you studying for the bar, the July 2007 exam had a MBE question on the Bill of Attainder clause, so pay attention. Can the Senate continue with the trial and convict? The punishment upon conviction is: "removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States." U.S. const. art. I, sec. 3. Removal is moot. But may the Senate convict just to keep him out of a federal gig? Isn't the felony conviction enough to do that? I want my trial damn it!!!

*The previous judge to have that honor was Chief Judge Walter Nixon of S.D. Miss. who according to a Boalt Prof drew the largest paralegal salary in the State of Mississippi following his conviction and disbarrment.

On MJ

2009-06-25T16:24:00.000-07:00

Obviously you've all heard the news of the passing of Michael Jackson. I don't know how to feel exactly. First, I'm naturally saddened by the loss of any life, especially one as iconic and influential as his. But there's that other part of me. The one that remembers a more umm, erratic, Michael Jackson? I guess, I don't want to be seen as badmouthing the dead especially so close to the tragedy. But am I alone in having this hint of mixed emotions? I'm not even sure I can properly frame it.

And I assume there must be a debate of the Top 3 MJ songs. I'll think about my choices a bit, but roughly something like: Beat It, Billie Jean; I'll Be There (Jackson 5).

Prodigal y Daughter

2009-06-25T09:34:00.000-07:00

From the Volokh Conspiracy, via google alerts and an anonymous tipster:

Congratulations to Recent Boalt Hall [g]raduate Carolyn Zabrycki, whose student article (Toward a Definition of "Testimonial": How Autopsy Reports Do Not Embody the Qualities of a Testimonial Statement, 96 Cal. L. Rev. 1093 (2008)) was cited three times -- and seemingly significantly relied on -- by Justice Kennedy's dissent in Melendez-Diaz v. Massachusetts (pdf).

Congratulations, indeed!

Paging IP Nerds

2009-06-22T21:47:00.001-07:00

I know it's not one of the bar exam topics, but I have an IP question that someone might be able to answer. In short, Friend T asked me about this situation and it struck me as an interesting legal question worth exploring, so here it is.

Friend T recently held an engagement party at some Armenian banquet hall (if you're Armenian, you know the routine: lots of food and envelopes stuffed with cash as gifts...yes, it's a bit like the wedding scene from Goodfellas, but we're not all named Paulie). She hired a certain videographer to forever memorialize the event. Said videographer also freelances as an ad producer. Much to her shock, videos of her celebration are now being used for ads for a different banquet hall. She has no K or other agreement with the videographer. Who owns the copyright in the video? Is there fair use defense?

***

For those studying for the Bar, late-June and July are the best times to seek out distractions. Please nominate how you are taking your mind off "Gooooooood ideaaaaaaaaaaaaa????"

UPDATE: First off, big thanks for the quick responses. Now, this story in today's LAT cracks me up. Smoking's such an addiction, that the very banquet halls I mentioned in the original post are almost always filled with cigarette smoke and riddled with ash trays for the convenience of the smokers. On the one hand, no proprietor wants to confront drunks who are addicted to cigarettes or lose their property when someone puts the cigarette down on table cloth. On the other hand, you're violating the law. Personally, if I were the Glendale F.D. or the LAFD, I'd make it a "habit" of crashing Armenian weddings to enforce the smoking ban. In 3 weeks, you'll have a budget surplus from all the fines.

Help is Nigh on the Student Loan Front

2009-06-22T17:29:00.000-07:00

Do I understand all of this? No, to be honest, I don't.

But undoubtedly many students will find the article, which features various boalties in its summary of changes in law school loan forgiveness and repayment programs, helpful.

Mike Mulligan and His Steam Shovel

2009-06-20T10:48:00.000-07:00

Does anyone else see a strong parallel between TJ's recent photo of the excavation at Boalt and the conclusion of the famous children's story, Mike Mulligan and His Steam Shovel?

I mean, how are they going to get the excavators out? It will take either a wrench or a crane.

Budget Update

2009-06-18T17:44:00.001-07:00

---------- Forwarded message ----------
From: Christopher Edley
Date: Thu, 18 Jun 2009 17:05:29 -0700
Subject: Budget update
To: Students - 1L; Students - 2L

Dear Berkeley Law Student:

I write to update you on the financial situation at the Law School in
light of the on-going budget crisis in California and the consequent
challenges for UC Berkeley. My central message is one of reassurance:
We will continue to offer the best education of any law school on this
or any nearby planet. At this point I foresee few if any budget cuts
that will have material near-term effects on students.

The most significant program consequences to you will likely be some modest reduction in the number of small-enrollment offerings by adjunct lecturers, some slowing of the rapid expansion of the faculty we have pursued in recent years, perhaps some limitations on the scope of technical support on computer issues, and perhaps a slight reduction in the caloric content of the free lunches at speaking events.

On the positive side, it now appears likely that we will be able to follow through with the announcements I made earlier this spring concerning expansions in the Loan Repayment Assistance Program, more summer public interest fellowship grants, expansion of career services counseling, and several other measures. We will continue and expand the Boalt in D.C. program for a semester of study in Washington, D.C. We will continue our program of classroom renovations and construction.

The West Terrace will be completed before classes begin. Excavation for the South Addition will be complete in a few days. Eight new core faculty members join us this summer, which gets us three-quarters of the way toward the goal set when I arrived five years ago of a 40% net
increase in the faculty.

Please be clear, however, that the budget situation remains fluid. The Chancellor and Provost have not yet finalized the campus plans, in part because the Legislature remains tied in knots. Gordian, it seems. The Law School is in remarkably sound shape compared with most other campus units, and compared with most of our peer institutions. There are several reasons: our strategy of steadily raising tuition closer towards a benchmark of about 10% below the average of top-10 schools; the $125 million capital campaign has produced successive years of record alumni contributions; our low dependence on state appropriations, relative to other campus units, because the state support for the Law School was disproportionately cut during the recession earlier in the decade; the relatively small contribution of endowment income in our revenue stream, relative to other top-10 schools. The last two points mean we are more insulated than we would otherwise be from sharp state budget cuts and the Wall Street meltdown. Make no mistake, times will be tight. However, I simply do not expect that we will face the extraordinary budget reductions hitting many of our peer schools.

I hope the balance of your summer is both productive and restful.

Sincerely,

Christopher Edley
Dean and Orrick Professor of Law
Boalt Hall, UC Berkeley

--
Christopher Edley, Jr.
The Honorable William H. Orrick, Jr. Distinguished Chair and Dean
Berkeley Law
University of California

--
(Via BlackBerry)

Won't Somebody Please Think of the 2Ls?

2009-06-15T15:16:00.000-07:00

At the gentle urging of the folks at the Clerkship Notification Blog, I figured I'd remind Boalties about that invaluable resource for those pursuing the clerkship path. I'd also point out the many clerkship threads on this blog can be found in the formerly "Kevin Smith" label. Otherwise consider this an open-thread to try to top the neuroticism of the 3Ls.

Oh and Go Lakers. Do Bay Area sports fans have ANYTHING to look forward to other than Moneyball the Movie?

UPDATE:

Uighurs Relocate to New Beachfront Property

2009-06-10T05:48:00.001-07:00

Some very good news indeed: the Obama administration has finally found a country willing to accept 17 of Guantanamo's Uighur detainees.

And now the funny bit: that country is...the tiny island of Palau. Of course, Micronesian hospitality isn't free. Per HuffPo, "the U.S. was prepared to give Palau up to $200 million in development, budget support and other assistance in return for accepting the Uighurs and as part of a mutual defense and cooperation treaty that is due to be renegotiated this year."

The population of Palau is just over 20,000 people. So we may be effectively paying each resident $10,000. Thank God we didn't pay to settle the detainees in Germany. (Anyone have a spare $800 billion?).

Or maybe we should think of it as a per-detainee payment; it's a steal at only $12 million. Of course, the resettlement is only "temporary," so maybe that's a bit high for a one year lease.

Of course, that $200 million isn't just to accept the Uighurs. It's also for "mutual defense." I'm kind of interested to hear how that would work out if the US was invaded.

All kidding aside, it's a good thing, regardless of cost.

Hang on to Your Handgun

2009-06-06T14:15:00.000-07:00

As you may know, the Ninth Circuit recently held in Nordyke that the Second Amendment is incorporated into the 14th Amendment's due process clause. Last week the Seventh Circuit held exactly the opposite in National Rifle Association v. City of Chicago (pdf). On Wednesday the NRA filed a petition for certiorari (pdf), which raises one question:

Whether the right of the people to keep and bear arms guaranteed by the Second Amendment to the United States Constitution is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the states, thereby invalidating ordinances prohibiting possession of handguns in the home.

Incorporation cuts both ways, doesn't it?

Query: if the Court grants cert, what are the strangest amici bedfellows this case could produce?

It Begins [for the rest of us]...

2009-06-04T21:26:00.000-07:00

Barbri began for the rest of us today (CA Berkeley location - EDIT: NY Berkeley location is tomorrow). Gotta love that overwhelmed look on everyone's face this morning.

In true Berkeley fashion, things got off to a rocky start - notably, tech problems with the video sound. But once the first subject video started rolling, I think many of us decided that this may not be fun but might be manageable after all.

However, I suppose the better test for collective mood will come tomorrow after we've started to get a feeling of what the homework is going to be like.

Any other thoughts? Hoping to reboot this as an open forum...

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Again bumping up to encourage more discussion. End of our second (or third in some cases) week - how's everyone feeling?

Grades Open Forum

2009-06-04T21:00:00.000-07:00

Loathe the idea of this thread, but providing in response to a comment request below.

One question I had earlier is how can a 3L get a grade before a 2L in the very same class - aren't we on the same curve?

Kimberly Guilfoyle Suitor Watch

2009-06-02T00:10:00.000-07:00

Not Sotomayor, but the other Mayor.

Commenter with the wittiest/funniest proposed title for this post wins that honor.

$@!$# the PC at Work For Throwing My At-Home Apple Use Into a Tailspin

2009-05-28T17:47:00.000-07:00

That's all.

Feel free to share your frustrations & embarrassments during the first week of your summer internship here. (Anyone who ended up in the wrong law firm today after entering the wrong elevator bank, raise your hand. Any hands raised? No hands? Oh. Um, me neither.)

Chutspah Watch

2009-05-27T23:58:00.000-07:00

Legislature wants greater control over UC policy because they are upset with administrator salaries accompanied by fee hikes. Hmmm. In that case, might I demand greater control over the Legislature for raiding the UC's coffers to cover its own incompetence?