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...

Issue spotter

A woman shoved me on the T this evening. I've become so mired in the bar that my first thought wasn't to tell her to keep her hands to herself or even to shove back.

No, my first thought was, "Harmful and offensive contact!"

Sigh.

Next time I'll stick up for myself. You should, too. She was wearing an ill-fitting top and could have used a good trip to the hair salon. And the therapist.

Grammatical dishonesty

I can't, and won't, remember which rules of professional responsibility are "may not" and which rules are "must not."

So I plan to use "cannot" instead, if asked on an essay about professional responsibility.

It's professional responsibility, not linguistic responsibility.

Yes. I. Can.

I like to think Barack's looking down on me in benevolent encouragement.

Si, se puede!

Ungh

I don't know why I do this to myself. Just now I paged through the Boston Globe and read through the weekend section. (It was an aspirational thing.)

I was slapped in the face when the paper reminded me that not one but TWO of my favorite acts are on Cape Cod this weekend. Jenski had alerted me to this before, but I had looked away from her email at the time so as to pretend I'd never saw it. But see it I did. And how.

Despair.

This is what happens when you page through the weekend section. Don't. read. the. weekend. section.

Coping

Once, when I was in my early 20s and couldn't find a job despite my brand-name credentials (and language skills, and gold-plated internships, and ...okay, time to let it go), my father told me I was being too hard on myself. I'll never forget what he said, "You don't need to be doing the best at everything. You just need to survive. Because life is ups and downs, and you need to be able to get through the downs."

And while I don't consider studying for the bar to be a down per se (because failing the bar and then having to retake it would be an unqualified down), I find myself relying on some coping mechanisms nonetheless.

Junk music. Everyday there's a new mainstream, commercial, mass media song on continuous loop. Today, "Beautiful Girls" by Sean Kingston. Why a song about suicide is soothing to me, I don't know, but it is. It also reminds me of last summer, when the San Diego radio stations would play it on near-continuous loop. I hear the chubby Jamaican today and then I'm back in my rental car, driving home from the gym on Friars Rd. (And the weather was perfect, without a drop of humidity, because it was San Diego, but of course I was far away from the Captain...)

Running. Nothing gets me happier than a good work-out and sore quads. Truly.

Farmers' markets. I need to stop, actually. My fridge is overflowing with produce, and try as I might, not even I can eat that much. Because my freezer's starting to burst with frozen leftovers and yes, produce that I have frozen properly myself. (Go big or go home, I always say.)

Blogging. Because I'm just that narcissistic. Seriously, though, I appreciate everyone who reads (all five of you) and I ponder everyday how to make my blog better. Should I dedicate it fully to the bar? If I do, should I write about how I've tried to tackle specific problems, or should I keep to writing about how I tackle my feelings and fears? Or is a themed blog a bad idea to begin with? Should this just be a running diary?

Ah, narcissism. The idea that anybody even cares.

Time for bed.

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EDITED TO ADD:

Likening myself to a vacuum cleaner mogul. James Dyson has a commercial (for his $500 vacuum cleaners) about how his designers and engineers are delighted everytime they fail at something in the laboratory, because that's another thing they've learned. I like to feel the same way every time I do practice questions: just another 18 questions I'll never get wrong again.

Doing my hair in the exact same way everyday. Robert Schumann (or was it Schubert?) once wrote his mother he was so poor he couldn't afford a haircut. I am not that poor, but I am that pressed for time. And as you probably can tell, I find routine comforting. My hair-iform, if you will, has become a long French braid. There is one thing about it, though. Classy though they might look, braids always have signaled 'surrender' to me. As in, the wearer gave up on regular hair maintenance and just decided to braid it. Like me. Whatever.

Joy

There is no joy to the California bar. This I know.

So that is why I take what little joy I can get, wherever I can find it. The web is a good place (oh, not like that) because it reminds me that some people are bold enough to travel around the world and to film themselves dancing in a totally goofy, totally endearing way. I first saw "Dancing 2008" at Mrs. Priest's, but then I read about it today in the Times. Matt Harding might be my new hero.

Next to Joanne Chang, of course. She's my #1 hero. Because the kitchen is another place I find joy - tremendous joy, in fact. Today I took a page from Mark Bittman and made myself cold peanut noodles for dinner. The dish was so simple and so tasty (made with ingredients bought at my local farmers' market!), that I momentarily forgot about my vortex of worry. Fantastic.