So...Jenski had this going on at her blog, and since I'm usually a sucker for this sort of thing, I'll do it, too. I don't know who came up with these ninety-nine items, but they're neat in their variety and it's cool to see just how much you and your friends have done. Items I have accomplished are italicized in bold, with notes below.
1. Started your own blog
2. Slept under the stars
3. Played in a band
4. Visited Hawaii
5. Watched a meteor shower
6. Given more than you can afford to charity
7. Been to Disneyland/world
8. Climbed a mountain
9. Held a praying mantis
10. Sang a solo
11. Bungee jumped
12. Visited Paris
13. Watched a lightning storm at sea
14. Taught yourself an art from scratch
15. Adopted a child
16. Had food poisoning
17. Walked to the top of the Statue of Liberty
18. Grown your own vegetables
19. Seen the Mona Lisa in France
20. Slept on an overnight train
21. Had a pillow fight
22. Hitch hiked
23. Taken a sick day when you’re not ill
24. Built a snow fort
25. Held a lamb
26. Gone skinny dipping
27. Run a Marathon
28. Ridden in a gondola in Venice
29. Seen a total eclipse
30. Watched a sunrise or sunset
31. Hit a home run
32. Been on a cruise
33. Seen Niagara Falls in person
34. Visited the birthplace of your ancestors
35. Seen an Amish community
36. Taught yourself a new language
37. Had enough money to be truly satisfied
38. Seen the Leaning Tower of Pisa in person
39. Gone rock climbing
40. Seen Michelangelo’s David
41. Sung karaoke
42. Seen Old Faithful geyser erupt
43. Bought a stranger a meal at a restaurant
44. Visited Africa
45. Walked on a beach by moonlight
46. Been transported in an ambulance
47. Had your portrait painted
48. Gone deep sea fishing
49. Seen the Sistine Chapel in person
50. Been to the top of the Eiffel Tower in Paris
51. Gone scuba diving or snorkeling
52. Kissed in the rain
53. Played in the mud
54. Gone to a drive-in theater
55. Been in a movie
56. Visited the Great Wall of China
57. Started a business
58. Taken a martial arts class
59. Visited Russia
60. Served at a soup kitchen
61. Sold Girl Scout Cookies
62. Gone whale watching
63. Got flowers for no reason
64. Donated blood, platelets or plasma
65. Gone sky diving
66. Visited a Nazi Concentration Camp
67. Bounced a check
68. Flown in a helicopter
69. Saved a favorite childhood toy
70. Visited the Lincoln Memorial
71. Eaten Caviar
72. Pieced a quilt
73. Stood in Times Square
74. Toured the Everglades
75. Been fired from a job
76. Seen the Changing of the Guards in London
77. Broken a bone
78. Been on a speeding motorcycle
79. Seen the Grand Canyon in person
80. Published a book
81. Visited the Vatican
82. Bought a brand new car
83. Walked in Jerusalem
84. Had your picture in the newspaper
85. Read the entire Bible
86. Visited the White House
87. Killed and prepared an animal for eating
88. Had chickenpox
89. Saved someone’s life
90. Sat on a jury
91. Met someone famous
92. Joined a book club
93. Lost a loved one
94. Had a baby
95. Seen the Alamo in person
96. Swam in the Great Salt Lake
97. Been involved in a law suit
98. Owned a cell phone
99. Been stung by a bee
The only note I feel is worth making is 97. I myself never have been party to a lawsuit, but since I've worked on a few, I think that counts as being involved.
Read entire post...
Showing posts with label long. Show all posts
Showing posts with label long. Show all posts
Sunday, November 30, 2008
Thursday, July 31, 2008
Waiting game
And now, I wait.
When the head proctor called time this afternoon, the entire room broke into applause, and even our normally stoic proctor had to crack a smile. She let us blow off a little steam, then continued with her closing instructions. A few moments later, I was free to go.
Those first few moments after the exam I was so overwhelmed I didn't even know it. I was drained and exhausted - too spent even to realize that I was done. When I called my mother, she kept trying to get me to say I felt good about it, but I wouldn't, couldn't commit. It's all out of my hands, but neither do I want to tempt fate.
In the meantime, a few reflections from my week here in Oakland:
1. Bad fashion knows no bounds. I understand that we are taking an excruciating exam and that we are stuck in a convention center, cattle-style, for six hours a day. Still, I find that no excuse to wear velour sweatsuits, even if they do say "Juicy" on the butt. Even if someone spent hundreds of dollars on her velour outfit, she's still wearing sweatpants. In public. People can, and should, do better than that.
2. Oakland is the city in which to take the bar. The convention center is located downtown, right in the middle of plenty of places to eat and places to stay. When I took the BarBri MBE in Boston, the test was at the Boston World Trade Center, which is located next to nothing. Nothing. The Massachusetts bar at least permits its applicants to bring food into the exam (California's does not), but if given the option, I'd want to get away from test site during lunch. And get away I would, if only to sit in my hotel room for an hour and a half to veg. At dinner I'd collect with my friends in the lobby of my hotel and walk to one of any number of fun places to eat. (Tonight, Thai. YUM.) I even found the time to run (are you surprised?), and the hotel staff directed me to a lovely lake just a five minutes' run away. So if you're taking the California bar, and you want to use your laptop, take it in Oakland. (There's even a grocery store next to the test site. I got a fridge for my room and stocked it full of fresh veggies.)
3. There's value to registering early. I registered not four hours after registration was available, and as a result I was seated in the very front row. I took the test in a 48,000 sq.-ft. room with what must have been 1,000 other applicants, but for all I knew I had only a Marine on my right and a Boaltie on my left. Never was I distracted by applicants who cut out of the MBE twenty minutes early, never was I bothered by the doofus who'd neglected to download the exam from SofTest and was subsequently running around the 48,000 sq.-ft. room looking for a wireless signal. Didn't see any of that.
4. Post-it flags aren't on the list of items permitted into the test site, but highlighters are, so who's to say that highlighters that come with post-it flags shouldn't be allowed into the test site? I found the flags to be indispensable during the performance tests. Since I was sitting in the very front row, right where the proctors could see me, I doubt that my post-it flags truly were contraband. But just in case, I removed the flags from my test booklet when I handed everything in, and no one was the wiser.
5. The California bar takes its water seriously. We aren't allowed water in the testing room, but the bar examiners sprang for an endless supply of cooler water that sat right outside the doors. The gaggle of applicants on water breaks did lend to a feeling of collective nursing, but at least we didn't have to wait in line to drink sludge from the water fountain.
6. Take the test with a buddy, if you can. I was supremely fortunate to have both the Captain and Good Neighbor along with me in Oakland. I didn't need much, so two buddies were enough, if only to blow off steam at the end of the day and talk about how the Sox traded Manny this afternoon.
7. When it's over, let it go. We'll see just how good at that I am.
Til next time. Which I hope will not come along.
Read entire post...
When the head proctor called time this afternoon, the entire room broke into applause, and even our normally stoic proctor had to crack a smile. She let us blow off a little steam, then continued with her closing instructions. A few moments later, I was free to go.
Those first few moments after the exam I was so overwhelmed I didn't even know it. I was drained and exhausted - too spent even to realize that I was done. When I called my mother, she kept trying to get me to say I felt good about it, but I wouldn't, couldn't commit. It's all out of my hands, but neither do I want to tempt fate.
In the meantime, a few reflections from my week here in Oakland:
1. Bad fashion knows no bounds. I understand that we are taking an excruciating exam and that we are stuck in a convention center, cattle-style, for six hours a day. Still, I find that no excuse to wear velour sweatsuits, even if they do say "Juicy" on the butt. Even if someone spent hundreds of dollars on her velour outfit, she's still wearing sweatpants. In public. People can, and should, do better than that.
2. Oakland is the city in which to take the bar. The convention center is located downtown, right in the middle of plenty of places to eat and places to stay. When I took the BarBri MBE in Boston, the test was at the Boston World Trade Center, which is located next to nothing. Nothing. The Massachusetts bar at least permits its applicants to bring food into the exam (California's does not), but if given the option, I'd want to get away from test site during lunch. And get away I would, if only to sit in my hotel room for an hour and a half to veg. At dinner I'd collect with my friends in the lobby of my hotel and walk to one of any number of fun places to eat. (Tonight, Thai. YUM.) I even found the time to run (are you surprised?), and the hotel staff directed me to a lovely lake just a five minutes' run away. So if you're taking the California bar, and you want to use your laptop, take it in Oakland. (There's even a grocery store next to the test site. I got a fridge for my room and stocked it full of fresh veggies.)
3. There's value to registering early. I registered not four hours after registration was available, and as a result I was seated in the very front row. I took the test in a 48,000 sq.-ft. room with what must have been 1,000 other applicants, but for all I knew I had only a Marine on my right and a Boaltie on my left. Never was I distracted by applicants who cut out of the MBE twenty minutes early, never was I bothered by the doofus who'd neglected to download the exam from SofTest and was subsequently running around the 48,000 sq.-ft. room looking for a wireless signal. Didn't see any of that.
4. Post-it flags aren't on the list of items permitted into the test site, but highlighters are, so who's to say that highlighters that come with post-it flags shouldn't be allowed into the test site? I found the flags to be indispensable during the performance tests. Since I was sitting in the very front row, right where the proctors could see me, I doubt that my post-it flags truly were contraband. But just in case, I removed the flags from my test booklet when I handed everything in, and no one was the wiser.
5. The California bar takes its water seriously. We aren't allowed water in the testing room, but the bar examiners sprang for an endless supply of cooler water that sat right outside the doors. The gaggle of applicants on water breaks did lend to a feeling of collective nursing, but at least we didn't have to wait in line to drink sludge from the water fountain.
6. Take the test with a buddy, if you can. I was supremely fortunate to have both the Captain and Good Neighbor along with me in Oakland. I didn't need much, so two buddies were enough, if only to blow off steam at the end of the day and talk about how the Sox traded Manny this afternoon.
7. When it's over, let it go. We'll see just how good at that I am.
Til next time. Which I hope will not come along.
Read entire post...
Monday, July 21, 2008
I shall not be moved
My senior year of high school, I was a peer group leader. Why I tried out for an activity usually reserved for the professionally popular (jocks, cheerleaders - i.e., NON-orchestra geeks) I don't know. But somehow I made the roster and found myself on a weekend training retreat somewhere in the woods of New Jersey. With the professionally popular.
One of our workshops was designed to show us how positive reinforcement can yield different results from negative reinforcement. (We were about to be trusted with fourteen year-olds - the school didn't want us making them cry.) The workshop leaders lay down a line of masking tape along the length of a room, and everyone else took a seat along the line, except for two volunteers. The volunteers took turns donning blindfolds and walking down the room, while trying to keep as close to the line on the floor as possible. For the first guy, everyone shouted words of encouragement, no matter if he was actually on the line or veering off into oblivion. For the second guy, the group shouted insults and words of...well, let's just say frustration.
As you probably have figured out, I was one of those brilliant, blindfolded volunteers. And as you also probably have figured out, I volunteered to be insulted. By the professionally popular. But even though I knew I was going to be insulted and that nobody actually meant all the horrible things they shouted at me, I still remember being confused and hurt as I walked down the room. But I also remember a tiny, tiny laser beam pointing me in the right direction, and an even tinier voice telling me to ignore the very loud yelling. And so I walked.
When I reached the end of the line, I took off my blindfold and was told that I had just beaten the positively reinforced volunteer by eleven steps (out of a total of thirteen). So not only did I totally frustrate the workshop, I also gave a big, imaginary middle finger to the professionally popular.
I remain proud.
But I still remember how conflicted I was as I walked down the line. Every bone in my body was telling me to give in and to give up, and that's exactly what I would have liked to have done. Instead I kept on walking. It was very confusing, this internal tug-of-war.
So as the days wind down to the bar, and as I grow more and more tired and sad, I'll have to remember that tiny little voice. I shall not be moved. Read entire post...
One of our workshops was designed to show us how positive reinforcement can yield different results from negative reinforcement. (We were about to be trusted with fourteen year-olds - the school didn't want us making them cry.) The workshop leaders lay down a line of masking tape along the length of a room, and everyone else took a seat along the line, except for two volunteers. The volunteers took turns donning blindfolds and walking down the room, while trying to keep as close to the line on the floor as possible. For the first guy, everyone shouted words of encouragement, no matter if he was actually on the line or veering off into oblivion. For the second guy, the group shouted insults and words of...well, let's just say frustration.
As you probably have figured out, I was one of those brilliant, blindfolded volunteers. And as you also probably have figured out, I volunteered to be insulted. By the professionally popular. But even though I knew I was going to be insulted and that nobody actually meant all the horrible things they shouted at me, I still remember being confused and hurt as I walked down the room. But I also remember a tiny, tiny laser beam pointing me in the right direction, and an even tinier voice telling me to ignore the very loud yelling. And so I walked.
When I reached the end of the line, I took off my blindfold and was told that I had just beaten the positively reinforced volunteer by eleven steps (out of a total of thirteen). So not only did I totally frustrate the workshop, I also gave a big, imaginary middle finger to the professionally popular.
I remain proud.
But I still remember how conflicted I was as I walked down the line. Every bone in my body was telling me to give in and to give up, and that's exactly what I would have liked to have done. Instead I kept on walking. It was very confusing, this internal tug-of-war.
So as the days wind down to the bar, and as I grow more and more tired and sad, I'll have to remember that tiny little voice. I shall not be moved. Read entire post...
Wednesday, July 16, 2008
Nuts and Bolts
Per Mrs. Priest's request, here is a summary of what the bar exam is:
The exam is held twice a year in February and July, and it is held the same week across all fifty states. This year the July administration is 7/29-31/08. The exam varies in length between two and three days, but the vast majority of states have two days of testing. The first day is six hours of multiple choice questions (100 mults in the morning, 100 in the afternoon) which cover law that is common to the majority of the fifty states. Every state gives the same exact set of multiple choice questions. The second day is essays, the number of which varies from state to state. The essays cover state-specific law. (States also vary on which they give first, the essays or the mults, but more on that later.)
California, however, has decided to throw in a third day. Day One is three hours of essays in the morning, then three hours of what they call the Performance Test in the afternoon. The performance test does not test any substantive knowledge. Rather, the PT tests your ability to follow directions. This sounds easier than it is. You're given an assignment ranging from anything to "write a memo" to "draft a will" to submit to a fictitious supervising attorney. You're also given a set of facts and fictitious law to shape your answer. This can be tricky because the fictitious law you're given is not necessarily what the law is in the real world. So you could know a real rule but be told that it's the opposite rule on the PT. On the PT, you apply the fake rule despite what you've learned in law school and despite what you've filled your head with studying for the bar. What's even trickier is that very, very few law school graduates ever have done the things asked for on the PT. I, for one, never have had to draft an affidavit or a business contract, but the PT doesn't care. If affidavits are what they want, then affidavits are what I'll give, even though I've never even seen one. To date, California is the only state in the union that has a three-hour PT. Thirty other states also have a PT, but theirs are only 90 minutes each. Massachusetts does not have a PT, and I like to remind my MA friends about that.[FN1]
Anyway, back to the schedule. CA's Day One is essays and the PT, Day Two is the multiple choice, and Day Three is essays and the PT, just like Day One. What's interesting about Day Two is that every other state in the country is ALSO giving their multiple choice exams that very same day. Why? Because some people want to take two exams at once. (People do this. Really.) They can do this if the two states they've picked 1) give two-day exams, and 2) have test schedules such that the state-specific essay days don't coincide.
Here's an example: Start in NY, where you take the NY essays on the first day and the national mults on the second day. The night of the second day, drive to MA so you can take the MA essays on the third day. (Since you've already taken the national multiple choice questions in NY, you don't have to take them again in MA.) Again, this works out only if the two states you've picked don't hold their essay days on the same day. NY and MA do not hold their essays on the same day because, well, we have lots of crazy people up in here. MA and NJ do hold their essays on the same day, however, so if you want to practice in both states, you'll have to wait until the next time the test is held to take the exam.
Oddly enough, you would think this works only when the states are contiguous, too. Nuh-uh. Ms. J has told me of a student in her class who is taking the Florida essays on Day 1 and the national mults on Day 2, then flying up to Massachusetts for the MA essays on Day 3. I suppose some people just don't want to have to study for the bar more than once.
I respect that.
---------
FN1. MA does have to hand-write their exams, though. CA gets to type. Thank God. Read entire post...
The exam is held twice a year in February and July, and it is held the same week across all fifty states. This year the July administration is 7/29-31/08. The exam varies in length between two and three days, but the vast majority of states have two days of testing. The first day is six hours of multiple choice questions (100 mults in the morning, 100 in the afternoon) which cover law that is common to the majority of the fifty states. Every state gives the same exact set of multiple choice questions. The second day is essays, the number of which varies from state to state. The essays cover state-specific law. (States also vary on which they give first, the essays or the mults, but more on that later.)
California, however, has decided to throw in a third day. Day One is three hours of essays in the morning, then three hours of what they call the Performance Test in the afternoon. The performance test does not test any substantive knowledge. Rather, the PT tests your ability to follow directions. This sounds easier than it is. You're given an assignment ranging from anything to "write a memo" to "draft a will" to submit to a fictitious supervising attorney. You're also given a set of facts and fictitious law to shape your answer. This can be tricky because the fictitious law you're given is not necessarily what the law is in the real world. So you could know a real rule but be told that it's the opposite rule on the PT. On the PT, you apply the fake rule despite what you've learned in law school and despite what you've filled your head with studying for the bar. What's even trickier is that very, very few law school graduates ever have done the things asked for on the PT. I, for one, never have had to draft an affidavit or a business contract, but the PT doesn't care. If affidavits are what they want, then affidavits are what I'll give, even though I've never even seen one. To date, California is the only state in the union that has a three-hour PT. Thirty other states also have a PT, but theirs are only 90 minutes each. Massachusetts does not have a PT, and I like to remind my MA friends about that.[FN1]
Anyway, back to the schedule. CA's Day One is essays and the PT, Day Two is the multiple choice, and Day Three is essays and the PT, just like Day One. What's interesting about Day Two is that every other state in the country is ALSO giving their multiple choice exams that very same day. Why? Because some people want to take two exams at once. (People do this. Really.) They can do this if the two states they've picked 1) give two-day exams, and 2) have test schedules such that the state-specific essay days don't coincide.
Here's an example: Start in NY, where you take the NY essays on the first day and the national mults on the second day. The night of the second day, drive to MA so you can take the MA essays on the third day. (Since you've already taken the national multiple choice questions in NY, you don't have to take them again in MA.) Again, this works out only if the two states you've picked don't hold their essay days on the same day. NY and MA do not hold their essays on the same day because, well, we have lots of crazy people up in here. MA and NJ do hold their essays on the same day, however, so if you want to practice in both states, you'll have to wait until the next time the test is held to take the exam.
Oddly enough, you would think this works only when the states are contiguous, too. Nuh-uh. Ms. J has told me of a student in her class who is taking the Florida essays on Day 1 and the national mults on Day 2, then flying up to Massachusetts for the MA essays on Day 3. I suppose some people just don't want to have to study for the bar more than once.
I respect that.
---------
FN1. MA does have to hand-write their exams, though. CA gets to type. Thank God. Read entire post...
Monday, July 14, 2008
Genius
Not too long ago, when BarBri canceled a class because of a bomb threat, the Captain wrote this devastating satire of a BarBri essay. It's finally up now that the Chronic Dabbler has helped me fiddle with the format. Thanks, Chronic Dabbler! Click on the link to read the entire post.
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Whether the cancellation of a BarBri session violates bar applicants' Constitutional rights.
BY THE CAPTAIN
Standing
In order to establish standing, plaintiff BarBri students must establish a cause in controversy, meaning there must be injury, causation, and redressability. Here, there is no issue of third party standing, generalized grievance, or mootness. Additionally, there is no issue of ripeness because the plaintiffs do not assert pre-enforcement review.
Rather, the BarBri student plaintiffs have standing because they have alleged an injury, namely prohibition from attending BarBri class, which will adversely impact their ability to pass the bar exam. Secondly, this injury is incontrovertibly caused by BarBri, which cancelled the class. Finally, there is redressability, because the court can order BarBri to reinstate the class. Thus, the plaintiffs have standing.
Plaintiffs' Case
Attending BarBri Class Is a First Amendment Right
The First Amendment protects the right to peacably assemble. Here, we have a group of bar applicants who seek to peacably assemble and discourse re: California bar exam essay techniques. The ability to gather and engage in such academic discourse is squarely within this First Amendment protection. Thus, any infringement of this right by a state actor is a violation of the BarBri students' rights.
BarBri is a State Actor
The protections of the First Amendment apply to the federal government and, through incorporation by the 14th Amendment, to the states. This includes certain private organizations that have become inextricably entangled with the government so as to provide a traditional government function. Here, BarBri is such state actor, entangled with the government, insofar as BarBri is the preeminent, and only, comprehensive bar examination preparation service. Because membership in the bar is a prerequisite to certain governmental functions, such as judge, prosecutor, Department of Justice Attorney, Attorney General, and the like, completion of the BarBri course is essentially a prerequisite to access for these necessary governmental functions. This is further bolstered by the extremely low bar passage rates among those applicants not taking BarBri, compared to the extremely high passage rates among those that do. Furthermore, BarBri has conceded that its classes set the standard of performance for passage of bar exams. Thus, BarBri has established itself as a state actor, likened to governmentally proffered civil servant exam training, because attendance at BarBri classes is a prerequisite for access to necessary government positions.
Cancelling BarBri Classes Infringes on Students' First Amendment Rights
BarBri Must Staisfy Intermediate Scrutiny
Having established that attendance at BarBri class falls under First Amendment protections, and that BarBri is a state actor prevented from infringing on these rights, it must be determined whether cancelling BarBri class infringes on these rights. In order to be constitutional, any infringement of the BarBri students' fundamental First Amendment rights must meet with intermediate scrutiny. This is because BarBri's cancelling of classes is essentially a content neutral time, place, and manner restriction in a limited public forum (BarBri did not ban a particular type of speech, but rather all speech, making the law content neutral. Futhermore, because BarBri controls the venue, and is a government actor, the Harvard campus is arguably a limited public forum). Therefore, intermediate scrutiny applies, and BarBri bears the burden of proof. Cancelling classes must therefore be substantially related to an important government purpose, and it must be narrowly tailored to meet the government's purpose.
Cancelling Classes in the Face of a Bomb Threat is an Important Government Purpose
Given the potential harm students would face from a terrorist act, BarBri has clearly sought to maintain students' safety by cancelling classes and removing them from potential harm. Protecting citizens from terrorist attack is clearly an important government purpose, and satisfies the first prong of intermediate scrutiny.
Cancelling Classes is Insufficiently Narrowly Tailored
BarBri is an enormously wealthy company with nearly unlimited means at its disposal. It controls every room of every law school campus in the nation from mid-May to mid-July. When it has advance notice of a terrorist threat against these facilities, it is easily able to reschedule classes at one of dozens of different locations, all easily accessible by the BarBri students. Thus, a blanket cancelling of classes is too broad. BarBri could, and should, have merely rescheduled the class, rather than infringing on the Plaintiffs' First Amendment rights. BarBri has therefore failed to meet the second prong of intermediate scrutiny, and its cancelling of classes is an unconstitutional infringement of Plaintiff's First Amendment rights.
BarBri Has Infringed on Plaintiff's First Amendment Rights
BarBri, through its actions, has infringed on the plaintiff's rights, because its actions do not meet with intermediate scrutiny.
Potential Other Causes of Action
Plaintiffs could consider an action for breach of contract. However, insofar as only one class was cancelled, BarBri would be able to raise the defense of substantial performance. Plaintiffs would have difficulty proving that missing one class in a series of essay preparation lectures amounts to anything other than substantial performance. Additionally, any damages beyond restitution for class tuition, such as lost future wages due to failing the bar exam, would be speculative and hard to prove, because Plaintiffs would have to demonstrate that missing the particular essay class actually caused them to fail the bar. Read entire post...
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Whether the cancellation of a BarBri session violates bar applicants' Constitutional rights.
BY THE CAPTAIN
Standing
In order to establish standing, plaintiff BarBri students must establish a cause in controversy, meaning there must be injury, causation, and redressability. Here, there is no issue of third party standing, generalized grievance, or mootness. Additionally, there is no issue of ripeness because the plaintiffs do not assert pre-enforcement review.
Rather, the BarBri student plaintiffs have standing because they have alleged an injury, namely prohibition from attending BarBri class, which will adversely impact their ability to pass the bar exam. Secondly, this injury is incontrovertibly caused by BarBri, which cancelled the class. Finally, there is redressability, because the court can order BarBri to reinstate the class. Thus, the plaintiffs have standing.
Plaintiffs' Case
Attending BarBri Class Is a First Amendment Right
The First Amendment protects the right to peacably assemble. Here, we have a group of bar applicants who seek to peacably assemble and discourse re: California bar exam essay techniques. The ability to gather and engage in such academic discourse is squarely within this First Amendment protection. Thus, any infringement of this right by a state actor is a violation of the BarBri students' rights.
BarBri is a State Actor
The protections of the First Amendment apply to the federal government and, through incorporation by the 14th Amendment, to the states. This includes certain private organizations that have become inextricably entangled with the government so as to provide a traditional government function. Here, BarBri is such state actor, entangled with the government, insofar as BarBri is the preeminent, and only, comprehensive bar examination preparation service. Because membership in the bar is a prerequisite to certain governmental functions, such as judge, prosecutor, Department of Justice Attorney, Attorney General, and the like, completion of the BarBri course is essentially a prerequisite to access for these necessary governmental functions. This is further bolstered by the extremely low bar passage rates among those applicants not taking BarBri, compared to the extremely high passage rates among those that do. Furthermore, BarBri has conceded that its classes set the standard of performance for passage of bar exams. Thus, BarBri has established itself as a state actor, likened to governmentally proffered civil servant exam training, because attendance at BarBri classes is a prerequisite for access to necessary government positions.
Cancelling BarBri Classes Infringes on Students' First Amendment Rights
BarBri Must Staisfy Intermediate Scrutiny
Having established that attendance at BarBri class falls under First Amendment protections, and that BarBri is a state actor prevented from infringing on these rights, it must be determined whether cancelling BarBri class infringes on these rights. In order to be constitutional, any infringement of the BarBri students' fundamental First Amendment rights must meet with intermediate scrutiny. This is because BarBri's cancelling of classes is essentially a content neutral time, place, and manner restriction in a limited public forum (BarBri did not ban a particular type of speech, but rather all speech, making the law content neutral. Futhermore, because BarBri controls the venue, and is a government actor, the Harvard campus is arguably a limited public forum). Therefore, intermediate scrutiny applies, and BarBri bears the burden of proof. Cancelling classes must therefore be substantially related to an important government purpose, and it must be narrowly tailored to meet the government's purpose.
Cancelling Classes in the Face of a Bomb Threat is an Important Government Purpose
Given the potential harm students would face from a terrorist act, BarBri has clearly sought to maintain students' safety by cancelling classes and removing them from potential harm. Protecting citizens from terrorist attack is clearly an important government purpose, and satisfies the first prong of intermediate scrutiny.
Cancelling Classes is Insufficiently Narrowly Tailored
BarBri is an enormously wealthy company with nearly unlimited means at its disposal. It controls every room of every law school campus in the nation from mid-May to mid-July. When it has advance notice of a terrorist threat against these facilities, it is easily able to reschedule classes at one of dozens of different locations, all easily accessible by the BarBri students. Thus, a blanket cancelling of classes is too broad. BarBri could, and should, have merely rescheduled the class, rather than infringing on the Plaintiffs' First Amendment rights. BarBri has therefore failed to meet the second prong of intermediate scrutiny, and its cancelling of classes is an unconstitutional infringement of Plaintiff's First Amendment rights.
BarBri Has Infringed on Plaintiff's First Amendment Rights
BarBri, through its actions, has infringed on the plaintiff's rights, because its actions do not meet with intermediate scrutiny.
Potential Other Causes of Action
Plaintiffs could consider an action for breach of contract. However, insofar as only one class was cancelled, BarBri would be able to raise the defense of substantial performance. Plaintiffs would have difficulty proving that missing one class in a series of essay preparation lectures amounts to anything other than substantial performance. Additionally, any damages beyond restitution for class tuition, such as lost future wages due to failing the bar exam, would be speculative and hard to prove, because Plaintiffs would have to demonstrate that missing the particular essay class actually caused them to fail the bar. Read entire post...
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