Good Luck on the Bar Exam!

Students across the country are taking, or will be taking, the bar exam over the next few days. California's bar exam begins today and will end on Thursday.

To those who are taking the bar exam, good luck!

And to those who will not be taking California's bar exam until a few years down the road -- you are already in luck. Above the Law notes that the California State Bar Board of Trustees has voted to reduce California's three day bar exam to two days. The change is scheduled to take place in 2017, and it will make the California bar exam a far less cumbersome affair than it already is.

California's Fractional Statutes

One interesting phenomenon I have noticed in a few of California's statutes is the numbering of sections with fractions rather than decimal points. I first noticed this when I ran across California's law prohibiting the destruction or defacement of items of archaeological significance. The Penal Code section prohibiting this is section 622 1/2. 

California frequently numbers uses decimal points in numbering its statutes. For instance, California's criminal trespass law is an unwieldy behemoth, commencing at Penal Code section 602. Section 602's intricate, specific, and often inapplicable definitions of trespass consists of subsections and subdivisions of those subsections, going so far as 602(y), which prohibits the avoidance of security screening procedures in courthouses and other public buildings. Beyond section 602, a number of other decimal-pointed 602 sections further define instances of trespass, including the amazing section 602.12 which prohibits entry onto land with the purpose of interfering with research. To see section 602 and the following sections, you can find a list of those statutes here.

But despite California's frequent use of decimal points, there are several examples of fractional statutes and sections. A quick search of Westlaw reveals that California has repealed or renumbered numerous sections that contained fractions rather than decimal points. But several fractional statutes still exist. These mainly appear in California's Water Code Appendix, which contains several fractional sections, including section 28-141 1/2 which specifies the code sections governing claims for money damages against water districts. There is also section 33-281 1/4(o) which deals with the lease and sale of land deeded to water districts as a result of tax delinquency.

California's constitution also contains at least one example of a fractional section. Article 9, Section 6 1/2 states that the California Constitution does not prohibit the formation of school districts in multiple counties or the issuance of bonds by those districts.

I have not looked into the codes of other states to see if the practice of fractional sections is more widespread. But from my cursory investigation into California law, it looks like these sections are holdovers from historic practices of numbering statutes with fractions rather than decimal points. 

I think that the use of letters or decimal points rather than fractions is a better way of organizing statutes. And I am not aware of citation rules for citing fractions. For instance, does there need to be a space between the section number and the fraction? Does the fraction need to be formatted as 1/2 or ½? I am not aware of the answers to these questions. Ultimately, decimal points and letters are easier to work with, and California's fractional statutes remain as a quirky remnant of old drafting practices.

California Penal Code 602.12 and Unlawful Entry Onto Property to Interfere With Research

Consider a couple of hypothetical situations.

Al is a graduate student at UCLA who lives in Los Angeles, California. It is summertime so Al's grading duties are more relaxed than they normally are during the school year. But Al has a dissertation to complete (or to begin) so he is trying to make the most of his less-hectic schedule to get some research done. Al's buddy, Mike, on the other hand, is not a graduate student and therefore is experiencing summer in all of its glory -- free from the shadow cast by research obligations with no clear end in sight. Mike thinks that Al is working too hard on his research and decides to get Al to take an afternoon off and go on a hike. Mike calls Al, and tells him he's coming over to get him to take an afternoon off from research. Mike then walks over to Al's apartment, knocks on the door, and Al lets him in.

Ruth and Jessica are roommates living in Irvine, California. Ruth is an assistant professor finishing up her first year of teaching law school at UC Irvine. Jessica is a third year associate at Tuchman Marsh, an aggressive, uncompromising, and generally unpleasant law firm. Jessica finally has an evening to spare since the deposition she worked all week to prepare for is finally complete. As she drives home from work at the early hour of 8:00 p.m., she decides that tonight she and Ruth should head out for a few drinks. Jessica knows that Ruth is in the thick of researching for her latest research project on historic Bulgarian evidence law, so she figures that Ruth will be more than willing to take a break for some alcohol. Jessica walks into her apartment and tells Ruth that it's time for a girl's night.

Mike and Jessica have both committed misdemeanors.

They have both violated Penal Code section 602.12, which states:

602.12. (a) Any person who enters the residential real property of an academic researcher for the purpose of chilling, preventing the exercise of, or interfering with the researcher's academic freedom is guilty of trespass, a misdemeanor. 

(b) For the purposes of this section, the following definitions apply: 

(1) "Academic researcher" means any person lawfully engaged in academic research who is a student, trainee, employee, or affiliated physician of an accredited California community college, a campus of the California State University or the University of California, or a Western Association of Schools and Colleges accredited, degree granting, nonprofit institution. Academic research does not include routine, nonlaboratory coursework or assignments. 

(2) "Academic freedom" means the lawful performance, dissemination, or publication of academic research or instruction. 

(c) This section shall not apply to any person who is lawfully engaged in labor union activities that are protected under state or federal law. 

(d) This section shall not preclude prosecution under any other provision of law.

Aside from California's Maxims of Jurisprudence, this is one of my favorite California laws. It doesn't require proof that the defendant forced his or her way onto the property -- the property owner can let the defendants in and may even share the property with the defendants. It doesn't require proof that the defendant ultimately interfered with any research -- even if Al and Ruth turned down the the invitations to take a break, the initial entry into the property is the crime. This crime is a misdemeanor, so under Penal Code section 19 Mike and Jessica may be punished by six months in jail and/or a fine of one thousand dollars.

Of course, it is not likely that Mike and Jessica will be prosecuted. The crime would need to be reported, or an officer who is aware of this strange provision must be present and aware of the parties' research obligations and intentions to interfere. And a prosecutor who could potentially end up trying this case in front of twelve jurors would need to make a decision on whether to file this charge in the event of a report being filed.

Nevertheless, if you want to avoid breaking the law, make sure that your UC-affiliated friend or family member of yours is taking a break from research before you enter their property.

UPDATE: 8/8/2015

I found this record of the Assembly Bill that added section 602.12 to the Penal Code. It looks like the bill was enacted out of concern of threats against researchers who use animals. While 602.12 would probably criminalize some instances of interference with those researchers, the law's poor drafting extends its scope far beyond that limited purpose.

Concerns Over the California State Bar's Practical Training Proposal

Paul Caron has this post at TaxProf Blog quoting extensively from a (paywalled) article at The National Law Journal. From the quoted portion of the article:

The State Bar of California is pushing forward with a proposal to require candidates for admission to the profession to have completed 15 credit hours of practical training, over objections from deans around the country. 

The idea is to ensure that new lawyers are ready to practice law. But the Association of American Law Schools’ Deans Steering Committee warned the proposed rule would stifle curricular experimentation, limit the flexibility students now enjoy in choosing courses, and create a confusing patchwork of differing state requirements. 

Moreover, the repercussions would be felt well beyond the Golden State, since so may graduates want to practice there, the group said in a written statement.

“The intention comes from a good place, but it would make things difficult for the law schools and the students, operations-wise,” said University of Nebraska College of Law Dean Susan Poser, one of the 15 deans on the steering committee. “We already have an accreditor. It’s the [American Bar Association]. They tell us what we need to teach. To potentially have 50 state bars accrediting us is very complicated.”

The article goes on to note that deans are concerned about students who pursue joint degrees and students who are interested in subjects like tax law which focus more on doctrine than other areas of study.

Beyond these concerns, California's proposal may exacerbate a decline bar exam passage rates. Derek Muller has blogged extensively on the phenomenon of falling bar exam passage rates with examples of such posts here and here. In this December post, Muller highlights the National Counsel of Bar Examiners' (NCBE's) response to declining scores on the Multistate Bar Examination (MBE). The full NCBE report on falling scores is available here.

The NCBE notes that declining scores may be due in part to a rise in experiential learning. From the report:

The rise of experiential learning—a laudable objective—has also ushered in the greater use at some schools of pass/fail grading that may mask the needs of students at risk. Without grades for feedback, students may not realize they are at risk. In addition, the rise of experiential learning may have crowded out time for students to take additional “black-letter” courses that would have strengthened their knowledge of the law and their synthesis of what they learned during the first year

I am of the opinion that experiential learning has value, but it should not take up a substantial amount of students' time in law school. As I have suggested in previous posts, law schools offer the unique opportunity for students to systematically learn the doctrine of particular legal practice areas. While this teaching may veer into overly theoretical realms at times, the knowledge base that students gain allows them to be more thorough and creative when they ultimately apply their knowledge in a practical context.

My opinions on doctrinal learning aside, the NCBE's report suggests that a shift in focus from doctrinal to experiential learning may indeed have a detrimental effect on students' abilities to pass the bar exam. Even if experiential learning teaches valuable skills, these skills are ultimately of little use if students do not become practicing lawyers.

I hope that the California Supreme Court and Legislature consider the problems the California State Bar's practical skills proposal may create. Several levels of review remain before the proposal becomes reality, and these issues will hopefully be noted as the proposal works its way through the process.

San Diego 'Zombie Walk' Cancelled as Criminal Case and Lawsuit Looms

So reports NBC San Diego and Fox 5. In previous years the "Zombie Walk," has been a popular attraction associated with Comic-Con. In the Zombie Walk, undead enthusiasts dress as zombies and march through the streets of San Diego.

Unfortunately, during last year's Zombie Walk, Matthew Pocci drove through a crowd of participants, injuring one of them. Pocci claims that he became scared by the crowd of zombie walkers around him and tried to speed away after they banged on his car and tried to get inside. Zombie Walk organizers counter that video of the incident did not show any participants near the vehicle before it sped into the crowd. In the aftermath of this incident, a fast-approaching criminal trial date for Pocci, and a lawsuit by the victim against Pocci and the City of San Diego, this year's Zombie Walk has been cancelled.

In the meantime, the OC Register reports that a "Walker Stalker Con" will take place at the same time as Comic-Con. Various stars of AMC's "The Walking Dead" will be present at this parallel event, which celebrates a series centered around the struggle for survival in a post-apocalyptic, zombie-infested world.

While the Comic-Con horde of zombies has been subdued by legal machinations, I suspect that there will be at least several participants at the Walker Stalker Con who don zombie garb in celebration of all things undead. So while the official Zombie Walk has been cancelled, I would not be surprised to see some form of a zombie walk take place during Comic-Con this year.

Baude on the Constitutionality of the Death Penalty

William Baude has this editorial in today's New York Times examining the Supreme Court's recent opinion in Glossip v. Gross. In Glossip, the Court evaluated whether Oklahoma's lethal injection protocol was constitutional and ultimately decided that it was. Baude notes that Glossip was unusual because it prompted four justices to announce their opinions aloud.

Baude contrasts Justice Scalia's opinion favoring the death penalty against Justice Breyer's opinion that the death penalty may well be unconstitutional. Baude warns against Justice Breyer's opinion that the flaws in the death penalty warrant its abandonment, noting that even with the evidence Justice Breyer provided, this claim is a broad proposal for a court to make, and instead may warrant changes to specific aspects of death penalty administration.

Baude's take on Justice Scalia's opinion is particularly worthy of attention. Baude writes:

Let’s start with Justice Scalia, who argues that the Constitution explicitly blesses the death penalty. The Fifth Amendment says that one cannot be “deprived of life … without due process of law,” and that “capital, or otherwise infamous crime” must proceed by grand jury. Justice Scalia contends that these provisions insulate the death penalty from categorical challenge because it is “obvious” that it “is impossible to hold unconstitutional that which the Constitution explicitly contemplates.” 

But this argument ignores the lesson of another constitutional amendment, the Ninth, which is designed to stop precisely the sort of inference that Justice Scalia is making here. The framers worried that codifying individual rights could be dangerous, because identifying specific limits on government power may imply that those are the only limits, with the government otherwise having a free hand. When Congress decided to propose a Bill of Rights nonetheless, James Madison included language to answer this objection — which ultimately became our Ninth Amendment — that warns that no specific right should be taken to preclude other possibly relevant rights. 

Unfortunately, that is what Justice Scalia is doing. He considers the specific right to due process before execution and infers from it that the death penalty can never be a “cruel and unusual punishment,” which the Eighth Amendment prohibits. To be clear, Justice Scalia is surely correct that the framers assumed that the death penalty could be imposed without being cruel and unusual, and their assumption may well turn out to be right. But that is an assumption that has to be tested by interpreting the Eighth Amendment by its own lights.

Glossip will likely inspire a renewed wave of commentary on the constitutionality of the death penalty. While I suspect the split on the Supreme Court is too one-sided to promise any change in the death penalty's constitutionality in the near future, this discussion will nevertheless be worthy of consideration by state courts and legislatures.