The Rankings Game

A number of law schools hire their own graduates, some in hourly temp jobs that, as it turns out, coincide with the magical date. Last year, for instance, Georgetown Law sent an e-mail to alums who were “still seeking employment.” It announced three newly created jobs in admissions, paying $20 an hour. The jobs just happened to start on Feb. 1 and lasted six weeks.

While this came as a surprise to some (even some academics) it’s happening everywhere. Why? The rankings game. In 1997 U.S. News& World Reports unrolled a rankings system which measures all accredited law schools in the nation based upon a point system taking into account things like average entry GPA and LSAT, cost, number of students to faculty, percentage of class that graduates, and percentage of graduates working nine months after graduation.

For a long while, the rankings game didn’t really matter and no one paid much attention. Sure someone from Stanford is going to have more job opportunities than say some from the University of Toledo, but it only went so far. Now, everyone’s playing the rankings game. What does this mean for prospective law students? Pedigree matters. And it matters more than ever before.

These days, law schools are doing everything they can to buttress their numbers and that includes handing out temporary, part-time research positions to recent graduates in order to boost employment numbers. Perhaps what is more appropriate is to figure out ways to create more jobs or better yet to not play into the rankings game. What do the rankings say about the quality of education? Nothing. But somehow that’s where we’ve ended up.

From the NYTimes.

July 2010 California Bar Exam by the Numbers

Howard B. Miller, 85th President of the California Committee of Bar Examiners

Number of test takers: 8,562 (6,084 first-timers; 2,478 repeaters)

Number of passers: 4,690 (54.8% of all test takers)

Percentage of first-time takers who passed: 68%

Percentage of repeaters who passed: 22%

Mean scaled MBE score in California: 1,453

Mean scaled MBE score nationwide: 1,436

Via CalBar.

Art Immitates Law

In Yann Martel’s novel of magical realism The Life of Pi, the protagonist finds himself lost at sea in a raft. His only companion, a Bengal tiger named Richard Parker.

“Who is Richard Parker?” you ask.

In 1884, a ship sank off the Cape of Good Hope leaving three men and a boy trapped in a life raft. By the end of the two weeks things were looking desperate. The group had no food, save a sea turtle they caught and ate, and they were in imminent peril of death. One thing led to another and the boy was killed by two of the men and eaten by all three of the men. Four days later, they were rescued by a German merchant ship. The men were returned to Britain where they put forth the famous necessity defense, which failed, and sentenced to death. However, the Queen commuted their death sentence and everyone lived happily ever after.

The name of the boy cannibalized by the men — Richard Parker.

Regina v. Dudley and Stephens, 14 Q.B.D 273 (1884).

Using April Fools’ Day as a Legal Argument (Murder, Rape, and Contract Formation, Oh My!)

When it comes to April Fools’ Day and contract formation, consider the basics. A contract is a legally enforceable agreement. In order to have an enforceable contract, there must be offer and acceptance. An offer is a manifestation of intent of an agreement judged using the test of whether a reasonable person would believe that an offer had been made.  Therefore, if on April Fools’ Day an offer was made which a reasonable person would believe was a legitimate offer and that offer is accepted, a binding contract is created even if the offeror was merely joking. However, if both the offeror and the offeree knew the agreement was a joke, no contract would be formed because there was no mutual assent to the agreement. From Lucy v. Zehmer, 84 SE 2d 516 (1954):

We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention.

See also Keller v. Holderman, 11 Mich. 248 (Mich. 1863).

Action by Holderman against Keller upon a check for $300, drawn by Keller upon a banker at Niles, and not honored. The cause was tried without a jury, and the Circuit Judge found as facts, that the check was given for an old silver watch, worth about $15, which Keller took and kept till the day of trial, when he offered to return it to the plaintiff, who refused to receive it. The whole transaction was a frolic and banter–the plaintiff not expecting to sell, nor the defendant intending to buy the watch at the sum for which the check was drawn. The defendant when he drew the check had no money in the banker’s hands, and had intended to insert a condition in the check that would prevent his being liable upon it; but as he had failed to do so, and had retained the watch, the judge held him liable, and judgment was rendered against him for the amount of the check.

When the court below found as a fact that “the whole transaction between the parties was a frolic and a banter, the plaintiff not expecting to sell, nor the defendant intending to buy the watch at the sum for which the check was drawn,” the conclusion should have been that no contract was ever made by the parties, and the finding should have been that no cause of action existed upon the check to the plaintiff.

Note the digression on the topic regarding collective bargaining in Lewis v. Lowry, 295 F. 2d 197 (4th Cir. 1961).

If negotiators in a collective bargaining session should arrive at a complete agreement on the eve of April Fool’s Day and, out of a perverted sense of humor, should reduce to writing, sign, and distribute a pretensive agreement far from the real agreement they had reached, surely either party could show that the pretensive agreement was in fact pretensive, and the right of each to require that the real agreement be reduced to writing would be preserved.

Some other recent instances:

People v. McMullen, 92 AD 2d 1059 (1983).

Defendant testified at trial that the sexual acts described by complainant were consensual; that she ran naked from the house as part of an April Fool’s Day prank; and that she was injured when he pulled her back to the house so she would not wake his neighbors.

US v. Mohammad, 53 F. 3d 1426 (7th Cir. 1995).

Defense counsel’s other remarks, such as noting to the jury that the witness had testified before the grand jury on April Fool’s Day, no doubt contributed to the atmosphere in which the court handled the matter.

Winiarz v. State, 820 P. 2d 1317 (NV Sup. Ct. 1991).

On April Fool’s Day, 1984, Consuelo and Jacob Winiarz (to whom Consuelo was ostensibly married by virtue of an invalid marriage ceremony) decided to play a trick on a friend who was visiting them at their home. Consuelo and Jacob staged an argument, whereupon Consuelo pulled a gun on Jacob and fired at him, using blanks. Jacob pretended to die, spilling ketchup over himself to suggest that he was bleeding.

On Easter Day, 1984, a different group of friends was at Consuelo and Jacob’s home. Most of the people present, including Consuelo and Jacob, had been either smoking marijuana or drinking. Consuelo and Jacob appeared to argue and Consuelo shot at Jacob four times. When she allegedly first realized that there were real bullets in the gun and that Jacob had been wounded, Consuelo called an ambulance and went for help. [Jacob subsequently died and Consuelo was charged and convicted of his murder, twice.]

Overheard in Bar Review

A grocer in New Ulm, Minnesota, a predominantly German-speaking town, ordered coffee from a New York seller. When the shipment arrived it became clear that rats had “infiltrated” the packages of coffee while in transit. The grocer then wrote the following letter of complaint:

Schentlemens in New York:

Der last two pecketches ve got from you off koffee was mit rattschidt gemitz. Der Koffee may be gute enuff, but der rattsdurds schbeels the trade. Ve did not see der rattschidt in der sambles vich you sent us for examination. It takes so much time to peck der rattsturds from the koffee. Ve order der kelen koffee and you shop schidt mit der koffee; it vas a mushtake, YA? Ve like you to schipp us der koffee in van sak und der rattschidt in a udder sak. Den ve mix it to suit our kstorner.

Write please if ve shudt shipp der schidt bak and keep der koffee or if ve shudt keep der schidt and schipp der koffee back or ship der whole schidten verks bak. Ve vant to do rite in der madder, but ve don’t like dis rattschidt bizziness.

Mit mutch respeckts,
Karl Brummenschidt

From Professor David Epstein.

Res Ipsa Loquitur

It seems that appellant consumed one plug of his purchase, which measured up to representations, that it was tobacco unmixed with human flesh, but when appellant tackled the second plug it made him sick, but, not suspecting the tobacco, he tried another chew, and still another, until he bit into some foreign substance, which crumbled like dry bread, and caused him to foam at the mouth, while he was getting “sicker and sicker.” Finally, his teeth struck something hard; he could not bite through it. After an examination he discovered a human toe, with flesh and nail intact. We refrain from detailing the further harrowing and nauseating details.

The thing, truly does, speak for itself.

Pillars v. R. J. Reynolds Tobacco Co., 117 Miss. 490 (1918).

io9: Four Fictional Legal Systems Respond to Sentient Androids

Over at io9, an anonymous blogger is asking the tough questions:

People have long imagined automatons for society’s drudge work. The possibility and its implications are among science fiction’s favorite topics. One question that crops up constantly: What is a sentient android’s legal status? Is something that feels still property?

Extending human rights to an android is an interesting proposal. While the author lays out four different instances, starting with Star Trek’s Data, of androids challenging their status as machines, the writer doesn’t go quite far enough. What are the implications of extending human rights to androids? How does the connection between slavery in the U.S. (emancipation to the gradual extension of rights) and androids fit in to this thought experiment? Is there a better system — partial rights — to extend to androids and does that raise a “separate but equal” concern?

Read the entirety at io9.

Names Applied to Actors/Concepts in Law by Academia

Legal academia loves to utilize names as signifiers and placeholders. Aimed at facilitating material to law students, each subject has developed its own set of names and phrases sometimes used as placeholders other times for complex phrases. A few instances below.

Property: Blackacre, Whiteacre, Greenacre, Brownacre.

Dukeminier traces the theories of the use of these terms in his textbook, Property:

One of the earliest law treatises written in English, Coke on Littleton (1628), refers to Blackacre and Whiteacre. The OED suggests the terms indicate lands growing different crops (peas and beans are black, corn and potatoes are white, hay is green). Or ther terms might originally have referred to lands receiving different rents (black rents are payable in produce, white rents in silver).

Community Property & Family Law: Henry and Wilma//Herb and Wanda//Howard and Wendy

As you can imagine these take the place of husband and wife, although it’s not uncommon to see same-sex name pairings come up when studying community property law in California.

Real Estate Law: “The deed is done” and “Bite the dust.”

Apparently, both of these phrases come from old real estate common law. The deed is done means that the obligation securing the piece property has been completed and so the deed of trust will be disposed of.

Evidence: Hearsay

Rather than saying “an out-of-court statement offered for the truth of the matter asserted” lawyers and law students and anyone really can just say heresay. It’s a simple word for a very complex doctrine.

Generally: Paul and Dwayne//Phil and Duke//Peter and David//Pauline and Dawn

As Plaintiff and Defendant make up most law problems students face, they will inevitably encounter some variation on “P” and “D” names.