LOWERING THE BAR

via ABA Journal:

Law Schools Could Be Admitting 80 Percent of Their Applicants This Fall, Statistics Suggest

If you are an aspiring law student with low grades and scores on the Law School Admission Test [LSAT], this could be your year. 

Seventy-five of the 197 law schools ranked by U.S. News & World Report, or about 38 percent, suffered from triple declines in 2011--in enrollment, and test scores and grades of entering students[.] 

The Law School Admission Council is estimating the number of law school applicants will drop by 14.4 percent this fall. The decline in interest has been greatest among those with higher scores on the Law School Admission Test. As a result, law schools should expect further declines in enrollment and further erosion of test scores and grade point averages[.] 

It will also become easier to get into law school. "The admit rate will be the highest it has been this millenium, probably exceeding 75 percent and possible exceeding 80 percent (after increasing from 55 percent to 71 percent between 2004 and 2011)," [University of St. Thomas law professor Jerry] Organ says.

The Instapundit has been talking about the Higher Education Bubble for quite some time now. It seems like things are proceeding as predicted, starting with law schools. A professor from my alma mater, Brian Tamanaha, has a great book on the subject.

So what? Admissions standards are dropping as applications decrease. Big whoop. Well, OK, but stories like this are becoming increasingly common. Applications are down because potential students know that a law degree no longer guarantees a job in the legal industry, much less one that pays the exorbitant salaries that have been so shamelessly plugged by admissions departments for the last few decades. Instead of recognizing the tidal shift that has occurred/is occurring in the industry, schools who lower their standards are acting like the proverbial ostrich, heads buried in the sand. The value of a law degree is being diluted. While some schools are going against the grain, the majority will continue to struggle to preserve the status quo and hope that everything will be OK if they can just wait out this rough patch. With more and more bad news for new grads, those ostriches might get their eggs cooked. Stay tuned.

ABA Considering Doing Something to Benefit Young, Unemployed Lawyers It Wishes Didn't Exist

OK, that's probably not really fair. I mean ... there might be some (unpaid) interns working at the ABA that really do care. Anyway, hundreds of news stories about the undeniable shit storm facing law school grads for the last few years appear to have been taken into consideration.

via ABA Journal:

ABA House to Consider Ethics Rule Changes to Help Young and Mobile Lawyers

The measure would amend the ABA Model Rule on Admission by Motion to say that lawyers seeking to practice in a new jurisdiction through this procedure need to have actively practiced law for only three of the past five years. The previous version of the rule required active practice for five of the last seven years. 

Another new model ethics rule would allow lawyers moving to a new jurisdiction to practice there for up to a year, subject to some restrictions, while seeking admission to the bar.

As a recent grad, I welcome this change in the ethical rules. The limitations imposed by the outdated model of parochial bar associations in every state make very little sense in our increasingly global economy. In the current job market (read: desolate wasteland) for new law grads, being forced to choose one jurisdiction before you even begin practicing law leads to a severe limitation of potential jobs. Even when I do see a job that looks perfect for me, I won't be able to apply if it's out of state.

This makes no sense.

But wait! Don't individual states have an interest in making sure that lawyers practicing in that state know the laws of that state?!?!? Well, sure. But I can tell you this: most of the law that you learn for the bar is forgotten by the time you get your results. The only way to be competent in a particular area of practice is to practice in that particular area. Studying a BARBRI outline might get you through the MBE or an essay, but it's not enough to prevent you from committing malpractice.

Now, with jobs, particularly in certain markets (San Francisco comes immediately to mind), being hard to find, this change to the ABA Model Rules on Admission by Motion is a step in the right direction. This will increase mobility and help grease the gears of the legal industry, leading to fewer attorneys languishing in tight job markets when their skills could be put to use in other regions.

UPDATE: The revision has passed!

Broke California Finds $250M+ in "Lost" Funds

via Channel 6 News:

California Gov. Jerry Brown’s administration on Friday announced that $119 million more in untapped money was found in a sweeping audit of state accounts, bringing to more than $286.5 million the sum lawmakers were unaware of as they repeatedly cut government services.

The state of California is an absolute disaster. It imposes one of the highest levels of taxes (both corporate and sales taxes) in the nation, has been in constant danger of failing to meet its financial obligations, and, Oh!, just happens to have a slew of tax increases on the November ballot. Our illustrious Governor said:

“I am going directly to the voters because I don’t want to get bogged down in partisan gridlock as happened this year,” said Brown in a statement. “The stakes are too high.”
He suggested that the state can’t make any more cuts responsibly. “Spending is now at levels not seen since the ’70s,” he said. “Schools have been hurt, and state funding for our universities has been reduced by 25 percent. Support for the elderly and the disabled has fallen to where it was in 1983.”
“The stark truth is that without new tax revenues, we will have no other choice but to make deeper and more damaging cuts to schools, universities, public safety, and our courts,” he added.

Is this anything less than insanity? Why should we vote to give more money to a government that has shown itself to be completely incompetent, specifically in the area of handling money? If it is even remotely possible that a quarter of a billion dollars could be unaccounted for in a state that is desperately trying to make up for a billion dollar deficit, then I refuse to allocate any more funding to the state.

The most frustrating thing to think about is that whatever outcry that comes from this won't last until November. Instead, we'll hear the same hostage negotiations political speeches demanding higher taxes in order to "save" our "schools, universities, public safety, and our courts."

And the California bullet train to fiscal calamity rolls on ....

Eesh: Only 65% of 2011 Law Grads Have Jobs That Require Bar Passage

Well, they do say you can do anything with a law degree ... but somehow I don't think the 35% here have turned down Big Law offers to do something more amazing. More likely they're settling for whatever they can find to help pay their colossal student loan bills.

Ha, ok, who am I kidding, none of these people are paying their student loan bills, they're just deferring.

What higher education bubble?

via ABA Journal:

The overall employment rate nine months after graduation was 85.6 percent, the lowest it has been since 1994, according to a NALP press release. But the employment rate doesn’t tell the whole, dismal story. 

Among law grads whose employment status was known, only 65.4 percent were in jobs requiring bar passage, the lowest percentage ever measured by NALP. The number has fallen nine percentage points since 2008. Only 60 percent were working full-time as lawyers in jobs that required bar passage. 

“The entry-level job market can only be described as brutal,” NALP executive director wrote in a published commentary (PDF). The class of 2011 may represent the bottom of the employment curve for this economic cycle, he said. Its members were caught up “in the worst of the recession, entering law school in the fall of 2008 just as Lehman Brothers collapsed.”

I am a member of the class of 2011 (luckily I found a job--temporary, but paying well), so this is a story that doesn't tell me anything I don't already know. It's rough. And it's just a little bit worse when the people around you don't know how tough it is. I remember sitting in the Bryan Cave Courtroom at Wash U in the fall of 2008. The entire 1L class was there, listening to our dean explain to us how the collapse of Lehman and the financial industry would affect the legal system and our job prospects. Key message of that meeting: you came to law school at just the right time--in three years, all this unhappy business will be behind us. Good times will come again!

Maybe not.

From the same article:

The percentage of grads who found private practice jobs with large law firms of more than 500 lawyers is at 16.2 percent, down from more than 25 percent for both the classes of 2008 and 2009. 

In case you were wondering, those are the fabulous jobs that all the law schools put in their brochures to entice new applicants. Just 16%? Pretty bleak.

FREE SPEECH ALERT: Stop Lawfare Against Bloggers!

This story has been going on for the last few weeks (well, longer, but I've seen lots of posts about it recently). I admit to reading about it and then dismissing it as just more infighting in the blogosphere, but things seem to really be getting out of hand. Also, I try to not post anything too political (sometimes I can't help myself), but I think this issue should transcend partisanship.

You probably don't know about Blog About Brett Kimberlin Day, so click here for the back story.

More people from all political backgrounds are coming to the defense of bloggers being targeted by Brett Kimberlin, et al., for having the audacity to spread the truth about his background online. I'm all for spirited discourse, and, even though I don't like it, I think we should also allow for nasty, personal attacks and general mean-spirited-ness in the name of free speech. If Kimberlin doesn't like what's being said about him, then he can respond in kind. Instead, he has taken to abusing the legal system in an effort to silence those bloggers with whom he disagrees and, in doing so, harms the freedom of all of us to express ourselves online without fear of SWATing or Legal Abuse.

via Popehat (hat tip to Michelle Malkin):

Despite what you believe, you can be imprisoned in America for writing about public controversies. Aaron Walker--who until recently blogged as Aaron Worthing--found that out today. 

I first wrote about Aaron when I sent out the Popehat Signal seeking pro bono help for him in Maryland in connection with his disputes with convicted bomber and perjurer Brett Kimberlin. Much more recently, I wrote about him when he revealed how Kimberlin had pursued him in retaliation for his writing, including making a demonstrably false criminal accusation against him. 

After Aaron temporarily prevailed over Kimberlin and told his story, Kimberlin sought, and obtained, a new "peace order" (Maryland law-speak for a restraining order) against Aaron, trying to portray Aaron's protected expression as harassment and threats. 

Today Aaron showed up in court in connection with that order, and was taken into custody for violating it--apparently on the grounds that by blogging about Kimberlin's behavior, had had violated the peace order. 

... 

Today is a setback for freedom of expression and a victory for sociopathy and the abuse of the legal system for crass political ends. But it is not over. Not by far. It's time to pull in some First Amendment heavy hitters to assist. It's time to get more attention to the situation, and inflict the Streissand Effect even more than Blog About Brett Kimberlin Day already did. It's time to fight.

Have a blog? Know someone who does (me)? Support free speech and call out legal BS like this that is meant to stifle speech in the blogosphere.

Death of a Law Firm

Following the recent death of the venerable firm Dewey & LeBouf, the WSJ features an Op-Ed discussing the problems with the old law firm business model and the need for reform.

It is easy to think that greedy lawyers are getting their just desserts. But this should not blind us from seeing that there is a better way for America's law firms to do business. 

The problems these firms face today are twofold: Large clients are increasingly using in-house counsel to reduce costs, and the public is increasingly taking the do-it-yourself route given the growing access to a variety of legal services and documents on the Internet. The rational response would be for new, low-cost legal firms to start up, and for incumbents to reduce costs and attract new clients by providing innovative services.

But that is happening only to a limited extent because of state licensing requirements and American Bar Association (ABA) rules. Deregulation could open the market and transform the legal industry for the better. 

But, but, but ... what about all of us who already racked up huge student loans to jump through the ABA hoops? Deregulation?? Poor people will spontaneously combust, or something! Only people who graduate from really elite, elitist universities can be smart lawyers! That's not fair!

Terminator Apocalypse Update: Meet "FLAME"

via Wired:

Big weekend for those following the Terminator Apocalypse. New details are emerging about malware, known affectionately as "Flame," which has been operating under the radar for at least two years and has infected a slough of countries, including Iran. Remember that Stuxnet virus (way cooler name than Flame, btw) from a couple years ago? The one that screwed up the Iranian nuclear reactors? Yeah, same kinda thing.

Dubbed “Flame” by Kaspersky, the malicious code dwarfs Stuxnet in size — the groundbreaking infrastructure-sabotaging malware that is believed to have wreaked havoc on Iran’s nuclear program in 2009 and 2010. Although Flame has both a different purpose and composition than Stuxnet, and appears to have been written by different programmers, its complexity, the geographic scope of its infections and its behavior indicate strongly that a nation-state is behind Flame, rather than common cyber-criminals — marking it as yet another tool in the growing arsenal of cyberweaponry. 

The researchers say that Flame may be part of a parallel project created by contractors who were hired by the same nation-state team that was behind Stuxnet and its sister malware, DuQu. 

“Stuxnet and Duqu belonged to a single chain of attacks, which raised cyberwar-related concerns worldwide,” said Eugene Kaspersky, CEO and co-founder of Kaspersky Lab, in a statement. “The Flame malware looks to be another phase in this war, and it’s important to understand that such cyber weapons can easily be used against any country.”

Cyber warfare is becoming more widespread.

Get ready.

Did a rogue "algo" ruin the Facebook IPO?

Really interesting (also, complicated and confusing) article out about a glitch in the NASDAQ system that may have stifled the Facebook IPO, preventing the expected "pop" in share prices from occurring and possibly leading to billions of dollars evaporating into the nether.

Tyler Durden: SkyNet Wars: Presenting the Rogue Algo Responsible for Facebook's Downfall

Markets today are impossibly high tech, interconnected, and controlled by complex algorithms that are created by people but operated at such high speeds that, when things go wrong, allow problems to spiral out of control in seconds. Billions of dollars can be lost (or gained) before anyone even knows what happened. Later investigations (like the one the SEC has launched into the Facebook IPO "glitches") are incapable of repairing the damage that was done and generally fail to address the issues that led to the problems in the first place.

What's the solution? Stock up on water. Prepare for the terminator apocalypse.

Oracle v. Google Update - It's Android v. the World

via Phandroid:

Another important milestone in the case between Google and Oracle has been reached. Both sides have presented their closing arguments, meaning they’ve exhausted all of their firepower and are now ready to let the judge and jury make their verdicts. 

Oracle closed by saying Google’s wrongdoing is evident due to the chain of emails between Eric Schmidt, Andy Rubin, and Tim Lindholm where all parties acknowledged the licenses needed for them to use Java to construct Android. 

They also declined to respect Google’s claim of fair-use, stating that Android, while free to license, is still used as a commercial product to gain revenue. They are no doubt referring to revenue generated by mobile searches, ads, and the cut they get from paid apps in the Google Play Store. 

Google fired back by saying that Oracle’s idea that SSO (structure, sequence, and organization), in terms of the 37 APIs Google infringes on, can be copyrighted was made up to support their lawsuit. 

They also point out that out of 15 million lines of code in Android, only nine lines infringe on these patents. Finally, Google expectantly cited Sun’s former CEO Jonathan Schwartz, who admitted Sun allowed Google to use the code without legal recourse. The agreement was never formal, but it could go a long way for Google

According to the comments, this is the end of just the first phase of the trial looking at copyright infringement. The next phase will look at whether the patents were actually infringed, so this might go on for a while longer. In the grand scheme of things, this is just another another battle in the Smart Phone Wars, where everyone is using antiquated patent and copyright law to undercut the competition. The other front in this war is, of course, Apple v. Everyone (Samsung, Motorola, etc.), where Apple is suing everyone it can (and they are suing back) in order to restore its near monopoly in the smart phone/tablet market. Don't get me wrong, I really do like Apple's products, but this near monopoly distorts the market and allows Apple to charge higher prices for everything, hold your music (and other) files hostage through abusive license agreements. Google's Android platform is the only serious threat to Apple, which is why Apple is suing companies that make those phones. It doesn't help that Google is also being attacked on the other side by Oracle for infringing on code that will probably become irrelevant soon if it hasn't already.

I might be a biased observer (kind of an Android fanboy), but I have to say I respect the "Google" side of the war because they are pushing the open source model, which encourages more free market innovation. If you haven't heard about Android and the Open Source Project, you can find more about it HERE.

EEOC Guidance Emphasizes Possible Bias in Blanket Bans of Job Applicants with Criminal Pasts

via ABA Journal

Hey  Charles, thanks for meeting with us today ... I see here you've had a pretty large gap between your last position working for [REDACTED] and now. What have you been up to since, hmm ... 1969?


Well, actually I've had a bit of legal trouble, but that's all in the past now.


Oh, ok, great. Well, that's fine, I mean, we don't really need to go into all the details. I'm sure it won't affect your ability to clean houses here in Hollywood, will it?

Suit Claims Ghosts in Rental Home Justify Return of Security Deposit

via ABA Journal

They should've known something was up when this guy showed them the house:

The couple left the home one week after moving in, though they had paid a full month’s rent along with the security deposit. “There’s no way I’m going back there,” Callan tells the Asbury Park Press.

The landlord, orthodontist Richard Lopez, has countersued the couple for breaking their one-year lease. Rent is $1,500 a month and the security deposit was $2,250.

Good for them. Honestly, don't you ask yourself why nobody ever just leaves right away?

"Honey, a demonic force just tried to kill me ... can we get outta here?"

"No, let's give it another chance. We'll call up our friend Zelda and she can give us a good cleanse ..."

"Oh, okay. That'll take care of it."

Obama vs. SCOTUS on Healthcare Ruling

via ABA Journal:

President Obama took on the U.S. Supreme Court on Monday with a declaration that a decision to overturn the health care law would be an “unprecedented, extraordinary” step of judicial activism. Obama said he was confident, however, that the law would be upheld, report the Washington Post and the New York Times. “I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint—that an unelected group of people would somehow overturn a duly constituted and passed law,” Obama said. “Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step.”

Yahoo News writer Susan Graybeal weighs in:

Obama's Health Care Comments are Insulting to the Supreme Court:

I think such language on the part of the president is tacky and insulting, not only to the Supreme Court justices but to the American people as well. 

The American public realizes the president supports the health care law and believes it is constitutional. Additionally, I think we understand the notion the Supreme Court justices are "unelected" and the health care law was enacted by an elected Congress. What the president doesn't seem to understand is there are an awful lot of us who also get the idea of checks and balances and that one of the appropriate checks of the judicial branch of government is to make sure that the laws passed by the legislative branch are constitutional.

So Obama is being mean, but is he at least being "fair"? That's one of his buzzwords. Is the Supreme Court really acting out of line here in considering striking down Obamacare? The WSJ offers Mr. Obama a lesson in constitutional law:

Obama vs. Marbury v. Madison

Presidents are paid to be confident about their own laws, but what's up with that "unprecedented'? In Marbury in 1803, Chief Justice John Marshall laid down the doctrine of judicial review. In the 209 years since, the Supreme Court has invalidated part or all of countless laws on grounds that they violated the Constitution. All of those laws were passed be a "democratically elected" legislature of some kind, either Congress or in one of the states. And no doubt many of them were passed by "strong" majorities. 

Also at the WSJ, our pal James Taranto had this to say:

President Obama made a statement today whose ignorance is all the more stunning for his once having been a part-time professor of constitutional law. . . . Unprecedented? . . . Did he sleep through the Harvard Law class on Marbury v. Madison? 

For that matter, did he sleep through his own 2010 State of the Union Address, in which he upbraided the Supreme Court for striking down portions of the Taft-Hartley and McCain-Feingold laws, both of which passed Congress by wider margins than ObamaCare did?

Even Politico is skeptical of the president's challenge, or at least the timing:

Obama, the left take on Supreme Court

Obama made an unusual pre-emptive [sic] strike Monday that previews the Democratic strategy if the high court nixes all or major parts of his signature domestic achievement. his volley, coming less than a week after the oral arguments wrapped up and while the justices are still deliberating, injects a high-level dose of politics into the most anticipated ruling since the court settled the 2000 presidential race.

His message was simple: The Roberts Court is on trial. . . . 

But the approach, while cheered by the left, risks aggravating justices who recoiled at the president's last attempt to take them to task for a ruling he didn't like.

Obama isn't doing himself any favors here. His statements can't possibly hold any sway over the justices themselves, and make the president look like he's whining. I'm sure some on the left are happy to see him out throwing political punches, but those people are already going to vote for him in November. I'm sure he isn't worried about pissing off conservatives--they're already chomping at the bit to put anyone BUT Obama in the White House, but how is this supposed to help him with independents? He should be sticking with the emotional appeals: save the children, help the poor, stop pushing grandma off a cliff. Challenging the authority of the Court is the wrong move, at least until a decision has been made.

UPDATE: Speaking of aggravating judges ...

Althouse: 5th Circuit reacts to Obama's remarks on the Supreme Court case and orders response on whether the Administration thinks courts may strike down a federal law.

Keeping Data Secure at the Coffee Shop

via ABA Journal

In an increasingly connected world, lawyers at a coffee shop, a hotel or the airport may jump online to check email, get some work done or send a tweet. But that freedom to access the Internet practically whenever and wherever we want carries risks from thieves, hackers and nosy neighbors—a possible ethical violations of client privacy.

[U]sers should make sure they are using a secure HTTPS protocol rather than the HTTP protocol and have a secure, 12-character alphanumeric password to log on to their laptops.

Mighell recommended a specific website called Shields Up, that will scan and determine the security vulnerabilities on your computer. He also said that while both Windows and Mac OSX operating systems have basic built-in firewall programs, they don’t offer enough protection.

Mighell also recommended turning off file-sharing unless there is a particular reason for having it on, and to have only one public folder for files that can be shared only when needed.

He and Nelson also recommended scanning your mobile device for malware after using any public WiFi network. And Mighell suggested investing in a good data loss protection program that will detect, monitor and prevent data from leaving your system.

From the comments: 

Easy answer - don’t use the coffee shop for your law office.

So does this change anyone's thoughts about coffee shop computing? The advice above is pretty worthless. What if there is no HTTPS connection available? I'm guessing that there aren't very many coffee shops offering ultra-secure connections. Hell, most of the time you're lucky if you can find an outlet to plug your computer into.

Defendants Increasingly Don 'Hipster' Glasses; Murder Prosecutor Gets New Look on the Record

via ABA Journal

According to the Post, nonprescription “hipster” glasses have become something of a sensation at Washington, D.C., courthouses. Inmates trade them before hearings or obtain them from family members. Sometimes lawyers give them to their clients.

“They’re masks,” one anonymous prosecutor told the newspaper. “They’re designed to confuse the witness and influence the jury.”

First Amendment right to sport hipster glasses? No, screw that. Down with hipsters!!

TSA vs. Wheelchair-bound 3 Year Old Boy

via CNN:



And another TSA fail ...

"There is another human being putting their hands on my child. That is not acceptable," [the father] said. "If he was putting his hands on my child at McDonald's or anyplace else, we would immediately have him arrested and call the police."

On the other hand ...

TSA spokesman Greg Soule: "While recognizing that terrorists are willing to manipulate societal norms to evade detection, our officers continue to work with parents to ensure a respectful screening process for the entire family at the checkpoint."


So, what do you think?