Wednesday, August 16, 2017

Prof Op-ed: The Bar Has Kept Out Fine Lawyers for No Reason

By Professor Susan Smith Bakhshian
Director of Bar Programs

This op-ed originally appeared in the August 16, 2017 edition of the Los Angeles Daily Journal.

The California bar exam is broken. Both the passing score and the overall validity of the exam need attention. It has taken years to secure a simple investigation by the State Bar despite years of low pass rates among even well respected law schools. Attorneys should support the State Bar’s efforts to investigate and ultimately lower the passing score.

The State Bar’s preliminary study demonstrates that a modest reduction in the passing score would not reduce the reliability of the test. No evidence suggests California receives any benefit from the second highest passing score in the United States. Yet we keep qualified young lawyers out of practice that would pass in other states. And we need more lawyers — not fewer.

In every courthouse today, there are pro se litigants struggling to work through the legal system without the guidance of an attorney and not because they do not want a lawyer, but because they cannot afford one. There are not enough lawyers to represent the vast middle class with routine legal needs, such as a will or divorce.

Perhaps the burden on access to justice would be justified if we had evidence that a high pass score protected the public from incompetent or unethical lawyers. No such evidence exists. (Indeed, California has maintained a high pass score for decades without a corresponding reduction in attorney discipline cases. If the proponents of a high score are correct, then 48 states should have higher discipline rates than California. Instead, California’s discipline rate is rather ordinary. The higher passing score does nothing to ensure the state only licenses higher quality lawyers. It merely ensures there are fewer of them.

Restricting the admission of future lawyers does nothing to clean up any real or perceived professionalism problems with current lawyers. Discipline is extremely rare in the early years of practice and the most common offenses are not related to any subjects or skills tested on the bar exam. Even if restricting licensing would reduce professionalism issues, the moral character requirement, not the bar exam pass score, is the proper place to look for front-end solutions to a back-end problem.

A great deal has changed while the bar exam passing score has not. This July, the State Bar changed the exam to a 50 percent weight on the national Multi-State Bar Examination which is the multiple-choice portion of the bar exam. Traditionally, the MBE was 33 percent of the exam score. At first blush, this looks to be a small change, but it has large consequences. For the last several years, the MBE has declining pass rates and the National Conference of Bar Examiners, the administrator of the MBE, is not transparent in explaining the decline. Without access to the MBE’s methodology or data, California’s increased reliance on this portion of the exam is both uniformed and will likely result in even lower pass rates.

Nearly everyone agrees that better practical training for lawyers is beneficial. If California wants its licensing exam to ensure that the proper skills and training are in place, then the exam must be evaluated to be sure it validly performs that function. Instead, the exam has increased its reliance on the MBE, which emphasizes memorization and includes no California specific law. California is heading in the wrong direction by maintaining a high pass score with a heavy reliance on multiple choice questions and general national law that many California attorneys will not use in practice. This perpetuates an emphasis on test-taking skills, not practical skills.

The passing score is not limited to creating problems for a few troubled law schools. The ABA pass rate for last July’s exam was only 54 percent overall and only marginally better at 62.4 percent for first time takers. Students at these law schools would pass at rates in excess of 80 to 85 percent in many other states.

I have no personal ax to grind. I took and passed the California bar exam the first time. But in my over two decades as a law professor, the California bar exam pass score has kept out or delayed many fine new lawyers for no reason. It is time to fix that.

Friday, August 11, 2017

Prof. Zimmerman Urges Veterans Court to Use Class Actions Before Adopting Formal Rule

By Professor Adam Zimmerman
Gerald Rosen Fellow

I was among those who filed an amicus brief--on behalf of the nation's leading scholars in administrative law, federal courts and civil procedure--in Veteran's Court today arguing how it may conduct class actions.

By way of background, in April, the Federal Circuit issued a pathbreaking decision holding that veterans could bring class actions in veterans courts, reversing over 30 years of precedent. Before that, veterans groups lacked meaningful ways to challenge systemic problems at the VA. Relying, in part, on our earlier amicus brief and our research in Inside the Agency Class Action, 126 Yale L.J. 1634 (2017), the Federal Circuit concluded that the nation's veterans courts indeed had power to hear class actions to improve efficiency, consistency and fairness in their own proceedings.

As a result, the veterans court has now begun to consider adopting formal rules to aggregate cases, including class actions. At the same time, veterans groups have already started filing class actions. So, the Veterans Court invited amici, including us, to weigh in on whether it can hear class actions before it adopts a formal rule to do so. Because formal rules often take several years to complete, how the veterans court proceeds now could have a dramatic impact on the speed in which it is able to provide justice for thousands of the nation's veterans.

Our brief, written with the Yale Law School Veterans Legal Services Clinic, surveys a range of different courts--federal courts, legislative courts and administrative tribunals--to show how they have experimented with class actions. In so doing, we show how many different courts gained invaluable experience, and swiftly resolved large numbers of pending cases, by adopting aggregate procedures, on a case by case basis, before adopting a formal rule to do so.

Tuesday, August 8, 2017

Prof. Miller Presents to Chief Judges on Problem-Solving Courts

By Professor Eric Miller

Professor Miller presented a paper on problem-solving courts to the U.S. Court of Appeals for the Eighth Circuit chief judges on Thursday, August 3, 2017 as part of a panel on specialty courts. Below is an excerpt from the presentation.

The first problem-solving court was founded by Chief Judge Klein of the Florida State Eleventh Judicial Circuit as an alternative to other, "fast-track" drug courts. The single great advantage of offender-supervision courts is that they respond to a failure in the federal sentencing guidelines that recent reforms do nothing to remedy. The guidelines presuppose incarceration as the organizing principle of punishment to the exclusion of non-incarcerative sanctions. The guidelines focused the question of punishment on the moment of sentencing as applied to individual offenders. But the guidelines failed to consider the direct and collateral consequences of imprisonment and reentry for both the offender and his or, increasingly, her family and community. The guidelines effectively channeled individuals into and up the criminal justice system, with little thought about what happens to them in prison, where they become less healthy, less employable, and more antisocial through losing family contacts, and what happens after prison, where often prisoners lose a variety of state and federal benefits as a collateral consequence of imprisonment.

Thursday, August 3, 2017

Trump Can’t Fire Transgender Troops

Professor Maureen Johnson
By Professor Maureen Johnson

This op-ed originally appeared in the Los Angeles Daily Journal

Just over two weeks ago, the House of Representatives — with bipartisan support — rejected an amendment to a defense spending bill that would have denied medical coverage for gender transition costs for members of the U.S. military. More particularly, 24 Republican representatives joined with Democrats to shut down the amendment. Notably, CNN reported that Defense Secretary James Mattis privately lobbied against the amendment through direct conversations with the bill’s author, Missouri Rep. Vicky Hartzler, as well as with other Republican representatives.

President Donald Trump’s response? There’s more than one way to skin a cat: If you can’t eliminate medical coverage for transgender-related services, simply eliminate transgender service members from the military.

Last Wednesday, Trump tweeted that he will prohibit transgender people from serving in “any capacity” in our military. To be clear, a series of three tweets in the early morning hours of July 26 proclaimed that the United States military would not “accept or allow” transgender people to serve, presumably meaning that even those transgender members currently serving — which early estimates suggested may be as many as 15,000 — will be summarily discharged, without any regard or respect for their valor or the contributions they already have made to our country.

Tuesday, July 25, 2017

Civil Suit Against the Trump Campaign Just Might Succeed

By Professor John T. Nockleby

This op-ed originally appeared in the San Francisco Chronicle.

Three American voters have filed a civil lawsuit against the Trump campaign and onetime campaign adviser Roger Stone that has the potential to transform the investigations of Trump’s connections to Russian hackers during the 2016 presidential election. This lawsuit might succeed where others have not in exposing the Trump campaign’s alleged involvement in disseminating the emails stolen from the servers of the Democratic National Committee.

The lawsuit alleges what amounts to a quid pro quo agreement between the Trump campaign and the Russian government to secure Trump’s election in exchange for upending U.S. policy toward Russia.

While the U.S. Department of Justice and Congress are also investigating Russia’s interference in our election and potential Trump campaign or associate involvement, there are a number of critical differences between the FBI’s criminal investigation and the conspiracy lawsuit.

First, because it is a civil conspiracy as opposed to a criminal case, there will be a lower standard of proof to show agreement between the Russians and the Trump team. The plaintiffs would generally try to show this agreement through circumstantial evidence.

Read the complete op-ed.

Wednesday, July 5, 2017

Trump Can Make 'Buy American' More Than A Slogan. Just Enforce A 1980 Law

By Professor Justin Hughes
Hon. William Matthew Byrne, Jr. Chair

This op-ed originally appeared in the July 3, 2017 edition of USA Today

China is not manipulating its currency to our detriment, and NAFTA is a good thing for the U.S. economy. But Donald Trump has been right in his basic observation — as both candidate and president — that we need to do more to address our country’s trade deficit, how other countries "game" international trade, and how American jobs move offshore. Trump may not realize it but he could advance his “Buy American and Hire American” goals by activating a policy tool already buried in U.S. patent law.

Year in and year out, the federal government has spent tens of billions of dollars supporting scientific and technological research —­ for example, more than $131 billion in 2015 alone. Before 1980, federal agencies had different policies on inventions resulting from this federally funded research, with most of them reserving any patent rights to the federal government. That meant there was a vast trove of inventions collecting dust in government files: As of 1980, there were 28,000 patents held by the government this way — and fewer than 4% had been licensed for commercial use. While many of those were patents on military technology — and shouldn’t be licensed — there was clearly underutilization of a vast technological portfolio.

Read the full op-ed here >>

Monday, July 3, 2017

On Independence Day, Professor Sees Hope in Constitution

By Professor Gary C. Williams
Johnnie L. Cochran, Jr. Chair in Civil Rights

As Independence Day approaches I am apprehensive. Terms such as “Muslim ban” and “fake news” are bandied about with impunity. The concepts of “extreme vetting” and building a wall alarm me. At the same time I am grateful. Three essential building blocks in the foundation of this nation - freedom of the press, the right to petition the government for redress of grievances, and the right of free speech - are at the forefront as we confront today’s challenges.

The press has been courageous in fulfilling its role under the first block. It has reported truthfully the actions of politicians of all stripes. It is reporting on, and investigating, Russian interference with our elections. And despite presidential claims that the press is “the enemy of the people,”[1] it has persisted in reporting on the actions and misrepresentations of our government and its leaders.

Our profession has seen some of its finest moments helping the defenseless utilize the second building block – the right to petition the courts for redress of grievances. Lawyers volunteered to represent people caught in the dragnet cast by the “Muslim ban.” Lawyers toiled from dawn to midnight crafting briefs challenging the worst aspects of that ban. And our courts have, thus far, remained steadfast in enforcing the principles of equal protection and freedom of religion - holding that a ban based upon religious affiliation violates the basic tenets of the Bill of Rights.

Dr. Martin Luther King once declared: “Every person of humane convictions must decide on the protest that best suits his [and her] convictions, but we must all protest.”[2] The ability to protest is protected by the third building block, the right of free speech. Americans have exercised that right by showing up at airports to protest the “Muslim ban.” And Americans poured out in unprecedented numbers to protest the political acceptance of sexist language and behavior.[3]

Our nation is not perfect. The Constitution that contains those building blocks at one time condoned slavery and denied women the right to vote. During World War II it allowed American citizens of Japanese descent to be imprisoned solely because of their race. But those building blocks made it possible to correct those errors. Today I see hope for our future.

[1] Trump Embraces ‘Enemy of the People,’ a Phrase With a Fraught History, New York Times, ANDREW HIGGINS, February 26, 2017
[2] Dr. Martin Luther King, 1967
[3] More than 500,000 in Washington D.C., and 400,00 in New York city alone. Women’s March Highlights as Huge Crowds Protest Trump: ‘We’re Not Going Away,’ ANEMONA HARTOCOLLIS and YAMICHE ALCINDOR, New York Times, January 21, 2017