Settlement in Examsoft "Barmaggedon" Lawsuit

So reports the National Law Journal:

Aspiring lawyers who sat for the July 2014 bar examination are eligible for $90 each from software company ExamSoft Worldwide Inc. under a class action settlement. 

ExamSoft has agreed to pay $2.1 million to bar takers who ran into technical problems while trying to upload their exam responses last year. Ten bar takers in numerous states filed five separate lawsuits following the exam, which became known on the Internet as “Barmaggedon.” 

The cases were consolidated into one class action in the U.S. District Court for the Southern District of Florida, and Judge Ursula Ungaro granted preliminary approval of the settlement on Tuesday. The parties reached the agreement through mediation. The settlement includes up to $600,000 in attorney fees for the plaintiffs lawyers. 

According to the agreement, ExamSoft’s technical problems affected bar takers in 43 states. They had paid between $100 and $150 to use the software, which blocks test takers from the Internet or class notes during the essay portion of the bar exam. 

But many takers faced long delays when trying to upload their answers, causing examiners in some jurisdictions to extend deadlines at the last minute. The situation was stressful, particularly because it occurred on the first day of the two-day exam, according to the agreement.

The website describing the settlement and giving information on filing a claim is here.

I described Examsoft's technical problems as I experienced them in this post I wrote after the first day of the bar exam, and this post which I wrote after the second day. I noted on the third day that the technical problems had subsided since few states other than California had three days of testing. Additionally, it is worth noting that the event's "Barghazi" label has apparently been upgraded to "Barmaggedon."

XKCD on Drone Regulation

Regular readers of this blog should know that I am interested in state and federal regulation of drones. It therefore shouldn't be a surprise that I am particularly amused by XKCD's take on drone regulation, which a friend shared with me earlier today:

This proposal is notable because it has the potential to please both those who are concerned about the privacy implications of widespread drone use and those who oppose increased government regulation of drones.

Justice Scalia on "Snookering" the Supreme Court into Granting Certiorari

The Supreme Court just issued its opinion in City and County of San Francisco v. Sheehan. The questions presented in that case were: 

(1) Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody; and (2) whether it was clearly established that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable under the Fourth Amendment by reason of the anticipated resistance of an armed and violent suspect within. (Breyer, J., recused.)

Due to San Francisco's refusal to brief or argue the first question, that question was dismissed as improvidently granted. The majority of the Court went on to decide the second question, holding that the officers were entitled to qualified immunity.

But in a separate opinion concurring in part and dissenting in part, Justice Scalia (joined by Justice Kagan) argued that both questions should have been dismissed. Justice Scalia did not hold back in expressing his disapproval of the petitioner's strategy:

Why, one might ask, would a petitioner take a position on a Circuit split that it had no intention of arguing, or at least was so little keen to argue that it cast the argument aside uninvited? The answer is simple. Petitioners included that issue to induce us to grant certiorari. As the Court rightly observes, there are numerous reasons why we would not have agreed to hear petitioners’ first QP if their petition for certiorari presented it in the same form that it was argued on the merits. See ante, at 7–10. 

. . .

I would not reward such bait-and-switch tactics by proceeding to decide the independently “uncertworthy” second question. And make no mistake about it: Today’s judgment is a reward. It gives the individual petitioners all that they seek, and spares San Francisco the significant expense of defending the suit, and satisfying any judgment, against the individual petitioners. I would not encourage future litigants to seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court’s docket, we will consider whatever workaday arguments they choose to present in their merits briefs.

There is no injustice in my vote to dismiss both questions as improvidently granted. To be sure, ex post—after the Court has improvidently decided the uncertworthy question—it appears that refusal to reverse the judgment below would have left a wrong unrighted. Ex ante, however—before we considered and deliberated upon the second QP but after petitioners’ principal brief made clear that they would not address the Circuit conflict presented by the first QP—we had no more assurance that this question was decided incorrectly than we do for the thousands of other uncertworthy questions we refuse to hear each Term. Many of them have undoubtedly been decided wrongly, but we are not, and for well over a century have not been, a court of error correction. The fair course—the just course—is to treat this now-nakedly uncertworthy question the way we treat all others: by declining to decide it. In fact, there is in this case an even greater reason to decline: to avoid being snookered, and to deter future snookering.

New Florida Law Restricting Private Drone Use

Florida's governor recently signed S.B. 766, a bill that expands and clarifies restrictions on drone use listed in section 934.50, Florida Statutes. The full text of the bill is available here. Reports on the passage of the bill are available here, here, and here. 

Prior to the passage of this bill, section 934.50 contained a wide restriction on government drone use. 934.50 prohibited the use of drones by law enforcement agencies to collect evidence except in cases where a warrant was first obtained, there was a high risk of a terrorist attack, or there was a risk of imminent harm to somebody. Those exceptions still exist after the passage of S.B. 766.

S.B. 766 is notable because of the restrictions it places on private drone use. The bill adds subsection 934.50(3)(b), which states:

(b) A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.

The scope of this restriction is clarified by the new subsection 934.40(2)(e), which defines "surveillance" as:

1. With respect to an owner, tenant, occupant, invitee, or licensee of privately owned real property, the observation of such persons with sufficient visual clarity to be able to obtain information about their identity, habits, conduct, movements, or whereabouts; or

2. With respect to privately owned real property, the observation of such property’s physical improvements with sufficient visual clarity to be able to determine unique identifying features or its occupancy by one or more persons.

A person using a drone violates this law if he or she uses a drone to collect images that are clear enough to identify unique identifying features about a piece of property or people on that property. The incidental collection of such images by a drone that is used for different purposes would not appear to violate the restrictions on private drone use. Additionally, this law does not apply to property that is not fenced-in or vast, since features of this property would likely be observable by somebody on the ground, meaning that the property owner would not have a reasonable expectation of privacy.

The law does not criminalize the use of drones for this sort of surveillance, but it does contain a provision permitting civil lawsuits for those who are subject to drone surveillance that violates the provisions of section 934.50. The prevailing party in such a lawsuit would have the right to obtain attorney's fees, and a person subject to surveillance in violation of this law would have the right to seek punitive damages and/or injunctive relief.

The new provisions in S.B. 766 seem fairly reasonable to me. By requiring an intent to conduct a surveillance and a violation of a reasonable expectation of privacy, Florida's new law permits quite a bit of drone use -- even use that may incidentally capture images of private property. Additionally, the bill does not criminalize private drone use that violates the law's provisions, and instead only provides a civil remedy.

Recent Research on Attorney Happiness and Stress

High levels of stress and depression have plagued the legal community for a long time. I have blogged about this problem previously, and today I want to flag two recent articles regarding the happiness and stress of attorneys.

First is a recently-published article by Lawrence Krieger and Kennon Sheldon in the George Washington Law Review. The full version of the article is available here. The New York Times covers the article here. From the Times' summary:

Researchers who surveyed 6,200 lawyers about their jobs and health found that the factors most frequently associated with success in the legal field, such as high income or a partner-track job at a prestigious firm, had almost zero correlation with happiness and well-being. However, lawyers in public-service jobs who made the least money, like public defenders or Legal Aid attorneys, were most likely to report being happy. 

Lawyers in public-service jobs also drank less alcohol than their higher-income peers. And, despite the large gap in affluence, the two groups reported about equal overall satisfaction with their lives.

The next article I want to highlight is a recently-released report commissioned by the Bar Council in the United Kingdom that explores, among other issues, the prevalence of stress in the legal field. The full report is available here. Legal Cheek provides concise (if not overly-dramatic) coverage here.

Both of these articles provide important contributions. The Krieger and Sheldon article is notable for breaking down various levels of stress in different areas of the legal profession. The Bar Council's report highlights the often-neglected problem of stigma against stress itself. Attorneys' jobs are often stressful, and this stress may be compounded by a culture that stigmatizes those who display stress or who seek counseling and treatment for work-related stress.

Hopefully these articles will help highlight some of the problems facing the legal community, and perhaps provide some insight into how attorneys in the most stressful fields may draw on the experiences of those in other fields in order to combat stress and oppression.

Chemerinsky: California Should Adopt the Uniform Bar Exam

Erwin Chemerinsky, noted constitutional law professor and the dean of UC Irvine School of Law, recently wrote this op-ed in the Los Angeles Times. Chemerinsky argues that California should replace its state-specific bar exam with the Uniform Bar Exam used by fifteen states. He writes:

New York's chief judge, Jonathan Lippman, announced last week that the state would adopt the Uniform Bar Exam, a standard licensing test for lawyers. It's the largest state to take this step, which Lippman said could result in a “domino effect.” I hope so, and I hope California will be the next state to fall. The current system, under which each state sets its own requirements and won't recognize out-of-state credentials, is inefficient, burdensome and, frankly, unjustifiable.

Bar exams were rare until the late 19th century. From the late 1880s to the early 1920s, however, the American Bar Assn. waged a successful campaign for states to require a written exam. Traditionally, each state wrote and administered its own test. The purported rationale was to ensure that those admitted to practice law in a given state were sufficiently familiar with its unique laws. 

But the truth is that basic principles of law do not vary from state to state. And lawyers can learn the quirky specifics as they go. Forcing students to memorize detailed, state-specific rules, most of which they will never need to know and which they will promptly forget, does not ensure competence.

Chemerinsky notes the recent move by New York to adopt the Uniform Bar Examination. The New York Times has further reporting on that story here.

In the past, I have implied that bar exams that are not state-specific may not be ideal. There is a push to do away with bar exams in some states, and some of these arguments rely on bar exams not being specific to each state's law. To the extent that uniform bar exams provide fuel for these arguments, I acknowledge that this is one drawback of adopting uniform bar exams, since I am in favor of maintaining some form of a bar exam (although I would be open to considering a national licensing exam, like the one Chemerinksy hints at near the end of his op-ed).

But beyond the minor concern of the Uniform Bar Exam fueling opposition to bar exams in general, I think that Chemerinsky is correct. A great deal of time that I spent studying for the California bar exam involved learning areas of law that were specific to California. I not only reviewed the law of civil procedure, I also reviewed California civil procedure. I not only studied evidence law, I also studied California evidence law. I did not spend time in law school studying California-specific laws, since I did not know whether I would be staying in California after graduation. But had my plans been more set in stone, I likely would have taken some California-specific classes in order to better prepare my self for the California bar exam.

A Uniform Bar Exam would save students time by allowing them to focus only on an area of law, rather than requiring students to also parse out the differences in California's laws. Moving to the Uniform Bar Exam would also save paper. Approximately 70 pages in my commercial outline book for the bar exam were devoted to California Civil Procedure -- a state-specific subject that had never been tested before (and was not tested the summer I took the bar exam). By switching to the Uniform Bar Exam, law graduates would be able to focus their studies more efficiently and not waste time wading through redundancies and exploring areas that have never been tested. Another possible benefit of switching to the Uniform Bar Exam is that such a switch may cut down on the outrageous amount of time grading the exam takes (note the date of July 31 on this post from the third day of the California Bar Exam, and the date of November 21 on the date of this post when the bar exam results were released).

New York's adoption of the Uniform Bar Exam is noteworthy, and I hope that this development will have a ripple effect that reaches the west coast. Even if the California Bar does not want to adopt the Uniform Bar Exam, I hope that it will at least consider taking California's bar exam in a more uniform direction.

Court Convicts Dead Man of Stealing Electricity

Kevin Underhill at Lowering the Bar comments on an unusual case where a Greek court convicted a defendant in absentia for stealing electricity. Despite the defense attorney's request that the trial be continued pending the provision of a death certificate, the court refused.

The court imposed a suspended sentence of six months in jail. As Underhill notes, that jail term wouldn't be imposed unless the defendant violated the law in some other way, so the defendant is "effectively off the hook."

The case raises several interesting questions. For instance, what if the charge were more severe, and this case took place in China? Would a Chinese court impose a suspended death sentence on a deceased defendant? And if a defendant were to fail to report to prison (due to his or her being dead) would the court then impose the suspended death sentence? If so, how?

Moreover, this case touches on a particular interest of mine regarding the law governing the dead and undead. As I have argued in both prior posts and published scholarship, criminal law (unlike tax law) is a particularly effective means of combating the undead in the eventual zombie apocalypse. 

Even if defendants are dead, courts in Greece and Russia will still move forward with prosecution. If When the zombie apocalypse occurs, one can only hope that more courts will follow this trend so that the undead may be effectively tried and prosecuted for the numerous crimes they will inevitably commit.