Perspectives on a Looming Decline in Bar Exam Passage Rates

As rumblings grow over the possibility of another summer of poor bar exam results, yesterday's New York Times ran this "Room For Debate" feature on declining bar exam passage rates. There were several notable contributions to the discussion regarding the notable fall in pass rates across the country which began in July 2014. 

To sum up each contribution with one (greatly simplified) sentence each: Deborah Merritt argues that the National Conference of Bar Examiners (NCBE) has too much control over access to the practice of law and is overly hasty in blaming law students' credentials for decreased passage rates; Linda Greene writes that law schools have a duty to help students better prepare for the bar exam and should identify and support those students who are most at risk to fail; Jerome Organ argues that law students' declining credentials are to blame for decreased bar passage rates and that this trend will continue; Brooklyn Law School Dean Nicholas Allard argues that the bar exam is outdated and in need of drastic overhaul; and Diane Downs notes that in an era of declining law school applicants, those who choose to attend have made a more deliberate, meaningful decision to become lawyers.

I think that each of the authors raises some good points, although, as I have noted before, I think that Dean Allard's criticism places too much blame for declining pass rates on the NCBE.  As Greene notes, law schools have a duty to better prepare their students for the bar exam. Dean Allard's criticism avoids acknowledging the legal teaching profession's responsibility to adapt to the disturbing trend of poor bar exam performance in a world where, like it or not, the bar exam exists. 

That's not to say that I don't think the bar exam could, and should, change. The exam could certainly be run more efficiently (two days, please), and results should be processed in a timely fashion (compare the date of this post to this post). But as for subject matter and format, it is easy to criticize a written, standardized exam. But I am at a lost when asked to think up any practical alternative. And those who know me know that I'm certainly not a supporter of dropping the test entirely.

As for law students and prospective law students taking all of this in, while proposals for change and criticisms of the exam may circulate, I suspect that the bureaucratic nature of the bar exam will make change a slow and painful process. My best advice for those considering law school now is don't count it out, but do carefully consider the realities of the field before making a hasty decision, and realize that tomorrow's bar exam will probably still look a lot like today's.

For previous posts on falling bar exam pass rates, see here, here, and here.

One-Armed Piano Players Do Not Need to Play For Free in Iowa

This is a second post in which I identify a rumored law and research whether it exists. In an earlier post, I researched rumors that Iowa law prohibits mustached men from kissing women in public and concluded that no such law exist. Here, I investigate the rumor that Iowa law requires one-armed piano players to perform for free.

There are several phrasings of this supposed law. The most commonly shared version is "One-armed piano players must perform for free." Websites, books, and articles proclaiming this law's existence may be found here, here, here, here, here, here, here, and here. None of these websites cite any statutes or cases.

One book quotes the supposed Iowa law as stating, "A one-armed piano player may be seen, but not if admission is charged to view his performance." This looks pretty authoritative because it is in quotation marks and sounds a bit more like it comes from a law or case. And it's in a book, not just the Internet.  But, for what it's worth, websites sharing similar versions of this phrasing are here and here.

After searching through the Iowa Code and Iowa cases, I was unable to find any law or case that prohibits one-armed piano players from charging admission for their performances. The quoted, second version of the law appears in only one other website.

Based on my research of statutes and cases, I have concluded that there is no Iowa law that prohibits one-armed piano players from charging admission for their performances. As a caveat: my search was limited to the Iowa Code and Iowa case law. I did not search any municipal codes because all websites referencing this law claim that it is a state law, rather than a particular city ordinance.

If you, the reader, happen to find a particular case or statute prohibiting one-armed piano players from charging admission to their performances, I welcome you to share the citation in this post's comments. But I strongly suspect that searching for such a citation is an endeavor that is destined to fail.

Sunstein on Academic Legal Writing

Through the TaxProf Blog, I learned of this recent essay by Cass Sunstein, In Praise of Law Reviews (And Jargon-Filled, Academic Writing). Here is the abstract:

Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”

I have long been of the opinion that a great deal of criticism of academic legal writing consists of the recycling of the same tired arguments every few years. I try not to be dismissive of this criticism -- but it just seems that there are some instances of classic criticism and dozens of dreary echoes.

In his essay, Sunstein takes on the classics. I have expressed my appreciation (or at least, good-humored enjoyment) of Fred Roddell's, Goodbye to Law Reviews in previous posts. But Sunstein has none of it -- arguing that Roddell's approach is "smug" and filled with contempt. And in responding to Roddell's criticism of law reviews, Sunstein makes one of his central points:

Rodell seemed to hold up general interest magazines as the standard, but rigor is not exactly their stock-in-trade. It should be unnecessary to say that the arguments that can be found there are often attention-grabbing, glib, result-oriented, and careless (and a little ridiculous). As for people, so too for genres: Their vices are a product of their virtues. What Rodell deplored as unnecessary formality, and a kind of incomprehensibility, is the dark side of the effort to avoid superficiality and glibness. Notably, some contemporary law professors seem strongly, drawn to more popular outlets, producing blog posts or online columns, where significant numbers of readers might be found, and where publication is essentially immediate. But a great deal is lost by writing of this kind, which tends not to be rigorous, and which does not really develop an argument or add to the stock of human knowledge.

I find this argument interesting, and I think that it is worth considering, especially in light of trends towards the media of blogs and Twitter in producing legal commentary and arguments. Published articles, at least, have no shortage of references for the points they make, and it may be harder to get unsupported assertions around journal editors.

But I don't think that Sunstein's argument will have much of an impact on the critics of law journals. True, an article in a law journal may be more rigorous than a blog post or an article in The Atlantic. But law journals are published and edited by law students, and critics argue that these articles are less-rigorous than that which is typically published in other fields. Sunstein would likely note that those professors who eschew law journals for popular articles also tend to shy away from more rigorously-edited publications. But the criticism still remains.

I am left with two main questions after reading Sunstein's essay. I would like to know how he would respond to the criticism that law reviews are not rigorous enough compared to other academic publications. And in a different vein, I would like to know what Sunstein thinks about online supplements to law reviews, which produce shorter, less-footnoted, and more quickly published pieces than printed law reviews. Are these online supplements akin to the general interest articles that lack rigor? Are they simply shorter versions of the over-footnoted, dry, and difficult law review articles? Or are they a possible middle ground where both rigor and readability can be achieved?

California Governor Vetoes Drone Trespass Bill

So reports the LA Times:

Gov. Jerry Brown on Wednesday vetoed legislation to restrict the use of drones over private property.

The legislation would have made flying a drone lower than 350 feet above private property without consent a trespass violation.

"Drone technology certainly raises novel issues that merit careful examination," Brown wrote in his veto message. "This bill, however, while well-intentioned, could expose the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation and new causes of action.

Additional reporting on the bill (SB 142) and the veto is available here, here, and here.

The California bill was proposed in light of privacy concerns raised by low-flying drones. Supporters argue that drones may be equipped with cameras and by flying low over private property, they may capture invasive images or video of people on that property. Opponents of the bill note that the bill is difficult to enforce and may curtail people's freedom to operate drone technology.

A notable impact of this bill's veto is that law enforcement agencies will not be curtailed in their use of drones. As I blogged previously, Governor Brown vetoed a bill that would have required warrants for law enforcement drone use back in 2014. In vetoing that bill, Governor Brown noted that the bill's protections went beyond Fourth Amendment restrictions on government searches and surveillance -- a justification that does not really mean much, since if the bill had not gone beyond Fourth Amendment protections, the bill would not have added anything to the legal landscape of government drone use.

The most recent drone trespass bill would have effectively limited government drone use had it been passed. Under United States v. Jones, the government carries out a Fourth Amendment search when it trespasses on somebody's property. Had SB 142 passed, it would have been trespass for drones to fly less than 350 feet above private property without the consent of the property owner. Law enforcement agencies would therefore be restricted from flying drones in such a manner, because the resulting trespass would constitute a Fourth Amendment search. Gregory McNeal advocates a similar approach for restricting law enforcement drone use in this paper.

Governor Brown's veto message noted his wish to avoid unnecessary causes of action against hobbyists. While the focus of much of the debate over this bill has been on private actors, it is worth noting that a significant restriction on government drone use has just been vetoed as well.

UPDATE: 9/11/2015: Title of post edited to correct misspelling.

A Perfect Storm of Terrible Legal Writing

From the ABA Journal, I learned about the resignation of Professor William Bradford of West Point. Bradford resigned after publishing a notably awful article entitled Trahison Des Professeurs: The Critical Law of Armed Conflict Academy as an Islamist Fifth Column. Bradford also is alleged to have "misrepresenting his military and academic credentials," as reported in this Guardian article. The Guardian notes:

Bradford had represented himself in academic papers as an “assistant professor” at the Defense Department-run National Defense University. But he was not a professor there, nor even a staff employee, according to NDU representatives. He is said to have worked for a Waynesboro, Virginia-based translations and business consultant, Translang, which had a contract with the university.

And as for that article it can be found here. The abstract reads:

Islamist extremists allege law of war violations against the U.S. to undermine American legitimacy, convince Americans that the U.S. is an evil regime fighting an illegal and immoral war against Islam, and destroy the political will of the American people. Yet Islamists’ own capacity to substantiate these claims is inferior to a critical cadre of American law of armed conflict academics whose scholarship and advocacy constitute information warfare that tilts the battlefield against U.S. forces by arguing — against evidence and reason — that the Islamist jihadis a response to valid grievances against U.S. foreign policy, that civilian casualties and Abu Ghraib prove the injustice of the U.S. cause, that military action is an aggressive over-reaction, and that the U.S. is engaged in war crimes that breed terrorists, threaten the rule-of-law, and make us less safe. Rather than lending their prodigious talents to the service of their nation, these legal academics, for reasons ranging from the benign to the malignant, have mustered into the Islamist order of battle to direct their legal expertise against American military forces and American political will. This psychological warfare by American elites against their own people is celebrated by Islamists as a portent of U.S. weakness and the coming triumph of Islamism over the West. 

This Article defends these claims and then calls for a paradigmatic shift in our thoughts about the objects and purposes of the law of armed conflict and about the duties that law professors bear in conjunction with the rights they claim under academic freedom. It then examines the consequences of suffering this trahison des professeurs to exist and sketches key recommendations to attenuate its influence of this, shore up American political will, and achieve victory over ISIS and Islamist extremism more broadly.

Bradford's difficult-to-follow (and 185 page!) article reveals that he is not above name calling:

Most pointedly, this charge is aimed at a clique of about forty contemptuously critical LOACA [Law of Armed Conflict Academy] scholars (“CLOACA”) who, by proposing that LOAC restrictions on Islamists be waived to provide unilateral advantage, that Western states face more rigorous compliance standards, and that captured Islamist militants be restored to the battlefield, effectively tilt the battlefield against U.S. forces, contribute to timorousness and lethargy in U.S. military commanders, constrain U.S. military power, enhance the danger to U.S. troops, and potentiate the cognitive effects of Islamist military operations. Moreover, CLOACA, rather than make good-faith legal arguments as to what LOAC does, does not, should, and should not require, offers up politicized arguments—against evidence and reason—that the Islamist jihad is a reaction to valid grievances against U.S. foreign policy, that civilian casualties and Abu Ghraib prove the injustice of the Western cause, that law enforcement suffices and military action is a gross over-reaction, that U.S.-led interventions in Iraq and Afghanistan are illegal aggression per se, that the United States is engaged in a pattern of war crimes à la Nazi Germany, that U.S. criminality breeds more terrorists and threatens the rule of law, that U.S. leaders should be prosecuted for crimes that make Americans less safe, and that dissenters merit professional condemnation and prosecution to shame or compel them into silence.

Bradford's article led to this notable response from the National Security Law Journal, which published Bradford's article this spring. From the response:

Moving forward, the current Editorial Board is committed to generating legitimate scholarly debate, representing all points of view, in the area of national security law. However, we have learned from this experience, and we recognize the responsibility that attends our publication decisions. The process of selecting articles is one our Editorial Board takes very seriously, and we are re-examining our selection process to ensure that we publish high quality scholarly articles.

I haven't seen many retractions like this. But I wouldn't be surprised to see one forthcoming from the University of Melbourne's Media and Arts Law Review, which recently published this abomination on arbitration, trial by combat, and Game of Thrones.

Varriale v. State: DNA Submitted Without Express Limitation on Consent Can be Used to Investigate Other Crimes

So holds Maryland's Court of Appeals (the state's court of last resort), in Varriale v. State. The opinion can be found here. Here is the abstract of the case provided by the Court:

The use of a buccal swab inside a person’s cheek to obtain DNA samples for testing is a search. Generally, a DNA sample may be obtained from an individual for testing by consent, pursuant to a warrant, or other court order. If a person’s DNA profile created from a DNA sample is in the lawful possession of the police for examination by consent and does not exceed the scope of the consent given to conduct the search, there is no Fourth Amendment violation. Moreover, the subsequent examination and use of the DNA in an unrelated investigation is not a search. Here, the defendant did not expressly limit the testing and/or use of his DNA. Any legitimate expectation of privacy that Varriale had in the identifying information contained in his DNA obtained from his cheek cells and penile area evaporated when his DNA was lawfully seized; it did not reappear when law enforcement officers compared his DNA sample to other samples and obtained a match.

Spencer Hsu at the Washington Post covers the case here. Additional coverage from the Baltimore Sun is available here.

To summarize the facts of the case: officers investigating a reported rape learned that George Varriale had been located near the scene of the crime. They asked for his consent to collect DNA evidence from his person, and Varriale agreed. While Varriale's DNA did not implicate him in the rape, his DNA ended up matching a sample collected in 2008 in a burglary. Varriale was charged with the 2008 burglary and after his motion to suppress the DNA evidence was denied, he entered a conditional guilty plea which preserved his rights to appeal.

Varriale is one of several recent cases that illustrate how evolving technologies can strain the acceptability of long-established concepts in Fourth Amendment law. An example of an earlier one of these cases is the 2014 U.S. Supreme Court case, Riley v. California, which involved officers searching the cell phone of an arrestee. Under the long-established concept of searches incident to arrest, officers are permitted to search the person, and immediate surroundings of an arrestee, including containers within that area. In Riley, however, the Court held that this doctrine does not extend to the contents of a cell phone. Noting the wealth of information cell phones contain, the Court held that the search incident to arrest doctrine did not justify the search.

In Varriale, the concept being tested is consent. Well-established Fourth Amendment doctrine states that police officers may search somebody's person, vehicle, or house as long as the person voluntarily consents to the search. Officers are not required to inform the person that he or she has the right to refuse consent. Officers' searches, however, are limited based on the scope of the person's consent. For example, if a suspect consents to a search of her car, that does not mean that officers may search her house -- they would be required to ask that suspect's consent to extend the scope of the search to her house.

Varriale illustrates a broad approach to consent in the DNA context. Mr. Varriale signed a written consent form for the collection of DNA evidence which included the following clause:

I realize that if I do consent to a body search, that any evidence found to be involved in this investigation, being conducted by the Anne Arundel County Police Department can be used in any future criminal prosecution.

Varriale argued that the phrase "any evidence found to be involved in this investigation" limited the scope of the permissible search to the investigation into the suspected rape. The prosecution argued that the phrase "can be used in any future criminal prosecution" indicated that the officers' use of the DNA was not limited to the rape investigation.

The Court held that Varriale's consent to the search was enough to remove any reasonable expectation that officers would not use the DNA to investigate additional crimes. Rather than focusing on the language of the consent form, the Court centered its reasoning around the nature of DNA, and that DNA, like fingerprints, retains the same identifying information over time. The Court held that it was reasonable to expect that officers would retain the DNA sample for future use in investigating other cases, and noted that the defendant did not expressly limit the scope of his consent to the present case. Accordingly, Varriale did not have a reasonable expectation that officers would not use his DNA sample to investigate other crimes.

Officers are not required to tell suspects that they have the right to refuse consent. And Varriale establishes that officers are not required to describe the potential scope of the investigation that may be done into evidence submitted with consent. Instead, it is reasonable for suspects to expect that their DNA may be used for identification purposes in other cases since DNA information provides identification information that remains consistently accurate over time.

Does this broad approach to consent go too far? Suspects who are asked to submit samples of their DNA may be focused on the case at hand, especially if the suspects know that the case involves a crime like rape in which DNA will likely be crucial evidence. These suspects might not realize that state governments and investigating agencies retain DNA databases like fingerprint databases, and therefore may not realize that their consent may implicate them in other matters. Without a statement that the DNA evidence may be retained and used in other cases, suspects may expect that their DNA will be used only in the present investigation.

And while DNA may be analogized to fingerprints, DNA contains more information than fingerprints provide. For example, somebody's DNA may be a close, but not exact, match to another sample. Such a close match might indicate that the person whose DNA was collected is related to the person who provided the other sample. These so-called "familial" matches may be used to investigate crimes as well. For instance, had Varriale's DNA been a close match to a sample in the database, officers may have inquired as to whether Varriale had any close family members and investigated their potential involvement in the 2008 burglary. The wide scope of possible uses for DNA samples requires courts to stretch the assumption that those consenting to the collection of their DNA are truly aware of what their consent entails.

As DNA continues to become a more commonly-used tool to investigate crimes, I would not be surprised to see more cases like Varriale make their way through the courts. It will be interesting to see how other courts address the doctrine of consent in DNA cases, And if courts end up reaching different conclusions, I would not be surprised to see the Supreme Court ultimately take up this issue.

"Bitcoin's Dark Side Could Get Darker"

That's the title of this interesting article by Tom Simonite over at the MIT Technology review. Simonite outlines a myriad of ways that online, "smart-contract" platforms such as Ethereum may be used to facilitate activities that, at best, are difficult to regulate, and at worst, are criminal.

From the article:

In a paper to be released today, Juels, fellow Cornell professor Elaine Shi, and University of Maryland researcher Ahmed Kosba present several examples of what they call “criminal contracts.” They wrote them to work on the recently launched smart-contract platform Ethereum. 

One example is a contract offering a cryptocurrency reward for hacking a particular website. Ethereum’s programming language makes it possible for the contract to control the promised funds. It will release them only to someone who provides proof of having carried out the job, in the form of a cryptographically verifiable string added to the defaced site. 

Contracts with a similar design could be used to commission many kinds of crime, say the researchers. Most provocatively, they outline a version designed to arrange the assassination of a public figure. A person wishing to claim the bounty would have to send information such as the time and place of the killing in advance. The contract would pay out after verifying that those details had appeared in several trusted news sources, such as news wires. A similar approach could be used for lesser physical crimes, such as high-profile vandalism.

Admittedly, not all uses of bitcoin and smart-contract platforms are criminal. But many non-criminal uses may still be very difficult to regulate. The article concludes:

“The potential for Ethereum to alter aspects of society is of significant magnitude,” says Wood. “This is something that would provide a technical basis for all sorts of social changes and I find that exciting.” 

For example, Wood says that Ethereum’s software could be used to create a decentralized version of a service such as Uber, connecting people wanting to go somewhere with someone willing to take them, and handling the payments without the need for a company in the middle. Regulators like those harrying Uber in many places around the world would be left with nothing to target. “You can implement any Web service without there being a legal entity behind it,” he says. “The idea of making certain things impossible to legislate against is really interesting.”