Bray: "On Legal Doctrines That Do Many Things"

Through Lawrence Solum's Legal Theory Blog, I learned of this excellent essay that Samuel Bray recently posted on SSRN. Its title is On Doctrines That Do Many Things. Here is the abstract:

Every kitchen has two kinds of tools. Some of these tools do many things well, like a chef’s knife. Other tools do only one thing, but they are meant to do that one thing exceedingly well, like a garlic press. This distinction also appears in legal doctrines. Some do one thing and are meant to do it very well. Other doctrines do many different things. They serve multiple functions, though perhaps all imperfectly. Indeed, this is often a basis for criticism. Scholars have criticized many legal doctrines -- from the constructive trust to the Erie doctrine, from the irreparable injury rule to the standing requirement, from the collateral source doctrine to strict scrutiny -- on the grounds that they serve multiple purposes and are therefore incoherent. By contrast, judges seem to prefer these multi-function doctrines. They resist the scholarly projects of deconstruction and specialization. This Essay considers that contrast in perspective, and it explores the differences between single-function and multi-function doctrines. These differences include the type of decisions that must be made, the possibility of expertise, adaptability over time, and the relative burdens on the designer and the user.

Bray's essay is approachable, interesting, and enlightening. It is only nine pages long. I'm posting this on the eve of a holiday weekend. You have no excuse not to read the whole thing.

Shoplifting: Proposition 47's Strange Addition to California's Law of Theft

California's Proposition 47 (Prop 47) reduces a number of California felonies to misdemeanors. I have already blogged that one of Prop 47's most extensive provisions, Penal Code section 490.2, reduces many forms of felony grand theft to misdemeanor petty theft. In that post, I purposefully avoided discussing shoplifting out of considerations of space. In this post, I hope to address Prop 47 shoplifting in the depth it deserves.

Proposition 47 adds the crime of "shoplifting" to the California Penal Code. This crime is now enumerated at Penal Code section 459.5, which states:

(a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170. 

(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.

Prop 47 enacted this section in order to reduce most cases of commercial burglary from felony status to the level of misdemeanors. Before Prop 47, entering a commercial establishment with the intent to commit larceny was second degree burglary. This crime was a "wobbler" under Penal Code section 461, meaning that it could be charged as either a misdemeanor or a felony.

With the arrival of Penal Code section 459.1, however, many cases of second degree burglary are now shoplifting, rather than burglary. Section 459.1(a) requires shoplifting to be charged as a misdemeanor unless the defendant is a registered sex offender or has one of several specific, extremely severe prior convictions.

While the stated purpose of Prop 47 is to reduce the severity of punishment for certain crimes, and while the new shoplifting statute will certainly have that effect on many instances of burglary, section 459.5 is worded and structured in a way that leaves significant questions regarding how it is to be applied. Moreover, in light of the notably restrictive language of section 459.5(b), it is unlikely that prosecutors would ever charge a defendant with the crime of shoplifting.

Who is to Blame for Declining Bar Exam Passage Rates?

Derek Muller argues in this post that the National Council of Bar Examiners (NCBE) may be more to blame than they are willing to admit. From his post:

Despite protests from the National Council of Bar Examiners to the contrary (PDF), it increasingly appears that the NCBE had some role in the decline of Multistate Bar Exam scores and, accordingly, the decline in bar passage rates around the country.

Muller points out declines across the country to support this claim, and notes that even though the students taking the July 2014 bar exam had slightly lower credentials than students in prior years, that does not seem to adequately explain the shifts in scores and pass rates.

Muller's post is worth reading in its entirety, as he addresses many of the explanations that have been offered so far. He ultimately concludes that more information is necessary for an adequate explanation for the decline in scores. I hope that the NCBE takes his (and others') concerns to heart in evaluating their testing methodology.

The bar exam is hard enough as it is, and failing to pass can be a very difficult setback. As more data is released, hopefully an explanation for the decline in scores and pass rates will become clear. And if the NCBE indeed is to blame for even some of this decline, they will hopefully take steps to remedy whatever went wrong during the July 2014 exam.

I Have Passed the California Bar Exam!

This, of course, changes nothing in my disclaimers (although once I am sworn in, I will be changing that remark about not being a licensed attorney).

But it is a good day.

UPDATE

Based on statistics recently posted by Derek Muller, it appears that the odds were not in my favor.

Amar and Allard on Reevaluating the Bar Exam

At Justia's Verdict, Vikram Amar has this article discussing the decline in performance of the July 2014 bar examinees relative to other years. Amar also addresses the National Conference of Bar Examiners' [NCBE's] response to this performance decline which was laid out in this memo by Erica Moeser, the president of the organization.

I've blogged about this year's decline in performance yesterday. There, I described the unpleasant situation of California bar examinees who have to read about the nationwide drop in bar exam performance before they have even received word of whether they have passed. 

Here is an excerpt from Moeser's memo where she addresses this decline:

Beyond checking and rechecking our equating, we have looked at other indicators to challenge the results. All point to the fact that the group that sat in July 2014 was less able than the group that sat in July 2013. In July 2013 we marked the highest number of [Multistate Bar Exam, or] MBE test-takers. This year the number of MBE test-takers fell by five percent. This was not unanticipated: figures from the American Bar Association indicate that first-year law school enrollment fell 7% between Fall 2010 (the 2013 graduating class) and Fall 2011 (the 2014 class.) We have been expecting a dip in bar examination numbers as declining law school applications and enrollments worked their way to the law school graduation stage, but the question of the performance of the 2014 graduates was of course an unknown.

Amar argues that Moeser's claim that the July 2014 examinees were "less able" than other groups of students who took the exam was likely a mistake of wording and that a mere decline in law school enrollment cannot adequately explain the drop in exam performance. From Amar's article:

For that reason, Ms. Moeser probably erred (putting aside her choice of language) in trying to offer any explanation for the lower performance; her diagnosis of a “less able” group of takers seems to be, at most, a (limited) diagnosis of (partial) exclusion. In other words, what she knows—or should be able to know—is confined to the fact that the MBE test that was given in 2014 was reliable as compared to prior year tests. Even if this year’s test was no different in substance or administration, Ms. Moeser really has no way of accounting for the lower performance. Certainly her vague implication—that a decrease in the volume of law school applications and graduating students explained the lower score—is open to question. Indeed, a seven-percent reduction in the number of starting law students in the fall of 2011 might suggest that law schools shrank in size rather than lowered their admissions standards. And the comparison of seven-percent fewer incoming students and five-percent fewer MBE takers wouldn’t, without more data, say much. So Ms. Moeser should have said no more than that the test has been examined and validated, and that we need to look elsewhere for an explanation. 

In this regard, [Brooklyn Law School] Dean [Nicholas] Allard is correct that the rest of us deserve to know more details about MBE’s “quality control” processes, to use Ms. Moeser’s term. It’s hard to see why more transparency about the internal test-validating data and techniques that the MBE-makers use would not be a good thing.

Amar is referring to this letter by Dean Allard that responded to Moeser's memo. In that letter, Dean Allard pointed out that graduating from an accredited law school takes a great deal of intelligence and work, that it "defies common sense" that students who have completed three years of law school need to spend even more money on a bar exam preparation course, and that "in short, it is not the students, it's the test."

I have some disagreements with some of Amar's and Dean Allard's remarks. Regarding Amar's article, I don't think that it is possible to interpret Moeser's use of the "less able" label to simply denote that students performed poorly on the Multistate Bar Exam. Moeser clearly refers to the "less able" description as an explanation for the poor performance, so it would not make sense to interpret her explanation in this diplomatic way.

But unlike Amar and Dean Allard, I don't find the "less able" description to be necessarily offensive. Faced with a decline in performance of students across the nation, an obvious potential explanation is that those taking the July 2014 bar exam were less prepared for the bar exam than students in other years. This could mean a number of things -- for example: that they were less intelligent, that their law school education was poor preparation, or that they had less time or intellectual energy to devote to preparing to the bar exam (perhaps because they were simultaneously searching for jobs that are increasingly difficult to find).

Take my opinion with a grain of salt, since I am one of these "less able" students, but I think Dean Allard was overly hasty in taking offense. I agree with Amar and Dean Allard that more research into the issue is necessary, and that Moeser may not be able to conclusively claim that the students are the reason for the poor performance on the exam.

But I think that Dean Allard's response opens itself up to criticism -- especially when he points out that students spend thousands of dollars on bar exam prep courses after taking three years of law school courses. This remark highlights a problem with law school, rather than the bar exam: if law school adequately prepared students for the bar exam, then they would not need to take the bar exam prep course. While I have many good things to say about legal education, and while I acknowledge that the situation is indeed a complex one, I think that Dean Allard's response needed to be more measured in order for it to be more credible.

I agree with Amar that more research into the issue is necessary, but I don't think that Moeser was relying solely on the number of students taking the exam in reaching her conclusions. The NCBE tests its MBE questions by including unscored experimental questions on its exams in preparation for following years' exams. I imagine that the questions used on the July 2014 exam were tested and performed comparably to previous years' questions -- which is one reply the NCBE will certainly be able to make to those criticizing its methods.

There is, however, one feature of this year's exam that may count against Moeser's claim that students were the reason for their own poor performance. Moeser mentioned in her memo that civil procedure will be an MBE exam topic starting in February. During my bar exam preparation course, one of the instructors mentioned that the July 2014 MBE may include test questions for civil procedure in light of its inclusion in future exams. While these questions would be unscored, they would be clearly different from other MBE categories. And if students were not adequately warned about the inclusion of civil procedure test questions in a year where civil procedure was not an MBE topic, these test questions could confound students and lead them to waste time and energy on trying to figure out what MBE category the civil procedure questions fit into. I don't know if it is possible to examine how adequately students were prepared for the possibility of the MBE including civil procedure test questions. But if many students were not prepared, this could be one explanation for the July 2014 exam being an outlier.

One might point out that as somebody who took the July 2014 bar exam, I am in a position to potentially confirm whether civil procedure questions were on the MBE. But while you might think that, I couldn't possibly comment due to the dozens of confidentiality agreements I signed before taking that exam. As far as my own experiences with the MBE are concerned, I'm going to remain silent.

In any event, law school enrollment has continued to decline, so the next several years will bring more opportunities to see whether this declining enrollment is indeed the explanation for falling performance on bar exams. More research is necessary, and the data for that research will gradually become available.

Bloomberg Businessweek Decides to Traumatize California Bar Examinees...

...by publishing this article, titled Why Did So Many People Flunk the Bar Exam This Year?

It begins:

The most recent bar exam test results are in, and they are ugly. In several states, people who took the bar in July were more likely to fail than those who took it last year, and scores on one portion of the test dropped to their lowest point in 10 years. 

Are America’s law graduates really getting dumber? The people who put together the bar exam seem to think so.

Thanks are due to Paul Caron of the TaxProf Blog for sharing this inspiring piece. It follows other depressing posts on the subject, including this one by Derek Muller on the surprisingly horrible performance of this year's examinees on the Multistate Bar Examination

Back in July, thousands of people took bar exams across the country. I (somehow) documented my own experiences in a series of posts here, here, here, and here. It's a good thing I did, because I have repressed almost all of my memories of those three days. Were it not for those posts, I might have doubts as to whether I even took the bar exam in the first place. By rereading my posts, I feel a little more confident that I am not lying to my coworkers when I tell them that I did indeed take the exam and that it was less than pleasant.

Since July, many state bar associations have already reported the results of their states' bar exams. I suspect that this is how the folks at Bloomberg Business Week are able to compile information on states' passage rates. I have not systematically studied which states have already released results, but based on a survey of status announcements of non-California people I know on Facebook, it seems to me that 49 states have notified students about whether they have passed the bar.

That leaves California, which announces bar exam results tomorrow.

California bar examinees have waited for almost four months to learn whether they have passed the bar exam. As they wait, outlets like Bloomberg Business Week publish articles on the woeful state of bar examination results following the July 2014 exam. Friends from other states joyfully announce their success, while those in the state with the most difficult bar exam anxiously watch the clock tick down.

Best of luck to those who have yet to learn of their bar exam results. And while these well wishes may seem a little self-serving, I give them anyway, since I want all the good luck I can get.

NTSB Rules that FAA Regulations Apply to Drones

The National Transportation Safety Board (NTSB) ruled yesterday that the Federal Aviation Administration's (FAA's) aircraft regulations apply to drones. Bill Chappell from NPR has the story here. Additional reporting from The Hill is available here. The full NTSB ruling is available here.

Specifically, the NTSB ruled that a regulation prohibiting the reckless operation of aircraft (14 C.F.R. § 91.13(a)) applies to the operation of drones -- despite the FAA's release of circulars and other notices specifically discussing model aircraft operation.

This opinion overturns an earlier administrative law judge's ruling that the FAA's regulations do not apply to drones. That earlier decision is available here. I blogged about the previous decision here.

From the NTSB's ruling:

[T]he Administrator’s application of § 91.13(a) to respondent’s aircraft is reasonable. Section 91.13(a) states, “Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” As discussed above, neither the plain language of § 91.13(a) nor the definitions of “aircraft” applicable to regulations in 14 C.F.R. part 91 exclude unmanned aircraft. The Administrator’s interpretation of this text—that it applies to respondent’s operation of his Zephyr to prohibit careless or reckless operations—is reasonable, given the broad language of the section. In addition, the Administrator’s preamble text in its Notices of Proposed Rulemaking, published in the Federal Register under the Administrative Procedure Act for promulgation of § 91.13(a), do not contain any language indicating its application of § 91.13(a) to respondent’s aircraft is an unreasonable reading of the regulation’s text and purpose. The Board has affirmed the Administrator’s application of § 91.13(a) as an alleged independent violation in other cases in which, presumably, no other regulation would have explicitly prohibited the alleged conduct. (footnotes omitted).

And as to whether the FAA's 1981 Advisory Circular on "model aircraft" operation exclude these aircraft from other regulations:

Nothing in Advisory Circular 91-57, on its face, reflects any intent on the part of the FAA to exempt operators of unmanned or “model aircraft” from the prohibition on careless or reckless operation in § 91.13(a). At most, we discern in the advisory circular a recognition on the Administrator’s part that certain provisions of the FARs may not be logically applicable to model aircraft flown for recreational purposes. But nothing in the text of the document disclaims, implicitly or explicitly, the Administrator’s interest in regulating operations of model aircraft that pose a safety hazard. More importantly, the advisory circular puts the reasonable reader on notice of the Administrator’s intent to ensure the safe operation of model aircraft by appropriate means.

While drones are generally quite different from traditional aircraft, the NTSB's conclusion seems correct, given the broad language of the regulation and the non-exclusive language of the advisory circular.

The NTSB cites statutory and regulatory definitions of "aircraft" as "any contrivance invented, used, or designed to navigate, or fly in, the air" (49 USC § 40102(a)(6)) and as "a device that is used or intended to be used for flight in the air." (14 C.F.R. § 1.1). While this language covers a great many devices (possibly even including paper airplanes or "toy balsa wood gliders" as the administrative law judge's ruling warns), the language is nevertheless clear.

It is worth adding that even though I think the NTSB's reading is correct, that does not mean that I necessarily agree that regulations applying to full-sized, manned aircraft ought to be applied to drones. I think that the administrative law judge was correct to note the broad definition of "aircraft" for purposes of federal law and regulation -- but I don't think that the law's unintuitive breadth is a sufficient reason to disregard the plain meaning of the text.

The NTSB's ruling will almost certainly accentuate the need for specialized drone regulations. And it may have a secondary effect of prompting awareness and criticism of how far a broadly-worded federal law may extend.