lukegilman.com : The Blawgraphy

Life of a Law Student, University of Houston Law Center

‘Tis the Season… law students return, fattened on turkey and swelled with holiday cheer… well, at least to the extent they weren’t holed up outlining the whole time. This is about the time when law students can lose it – develop nervous tics and strange analogies, attack armed robbers, lay the smackdown on home invaders, sometimes just disappear. David Lat at Above the Law hosted Anonymous Law Professor for a even-keeled, calming All You Ever Wanted To Know About Law School Exams post that is generally calculated to make already manic 1Ls feel a little bit more self-assured, at least until it got to this part -

I’m always terrified that I will lose exams. Bill Clinton, when he was a young adjunct law professor at the University of Arkansas, lost all of his Con Law finals.

I’m sorry, I must have misread that….so not only did Arkansas Law have an adjunct teaching Con Law (albeit a future President)… he LOST the finals? all of them? This is an event so horrifying that the internet dares not contemplate it, at least not in quotation marks. It’s also the point in the story where non-law-students will have a hard time empathizing – Why not just retake it? Why not give everyone an A? or change the course to pass/fail? That may sound rational to the normals, but this is law school. The curve must have its sacrifice.

There are precious few verifiable statements of fact out there on the internets to back this up, but a commenter on the Volokh conspiracy relates:

I can’t speak to Obama, but I do know people who were taught by the Clintons (as well as professors that worked with them) when they taught at The University of Arkansas Law School in the 70′s.

Bill Clinton rather infamously “lost” an entire classes finals at one point, allegedly resulting in everyone in the class being given a B- for the semester.

THAT is the solution?!?! give everyone a B minus? because a B would be too good for students who foolishly entrusted their own professor with their exams? I would like to tell myself this would never happen today – the exam software keeps a copy on your laptop, the professor’s secretary might run off a quick copy before sending it home with the absent-minded con law professor and yet…. My sole consolation is that Bill the Con Law Prof finally got his comeuppance. According to the Anonymous Law Professor, God heard the cries and lamentations of his Arkansas law students:

One of his students was Susan Webber, who went on to become Judge Susan Webber Wright, the judge assigned to the Paula Jones case. That’s a situation I want to avoid in its entirety.

There is a gradual but eerie transition in law school in which your circle of friends transforms from gaggle of law students to bevy of lawyers. While obvious and expected, it’s still strange to see the people you remember bombing on panel in con law or going down in flames in the mandatory 1L moot court argument now clerking for a federal judge, keeping people out of prison or getting paid several hundred dollars an hour to flail around in the case law on some obscure cause of action. The problems and stresses of law school now seem laughable. As one of the partners told a friend who recently passed the bar “Congratulations on becoming sanctionable!”

One of my frequent reads in law school, the pseudonymous Butterflyfish makes the transition clear with my old nemesis, property, in her recent post I own Blackacre:

Currently, I am reading about topics covered in first year real property. Fee simple subject to shifting executory limitations, that kind of thing. Its like studying for the bar exam again, except now it really matters that I get it right and there are no multiple choices. I spent an hour today combing through the first restatement of property. Tomorrow, I am going to read some more restatement and then I am going to go through more real property treatises. So armed, I will then delve into the case precedent, most of which will probably date from the turn of the century. I am pretty sure I am going to get to drop a footnote regarding the rule against perpetuities.

Don’t let anyone tell you that you don’t need to know this shit in the real world, kids.

So as the ‘left behind’ in law school gear up for finals, let us re-remind ourselves that we may have a client, sooner than we think, depending on our ability to master the subject. I am now outlining with all deliberate speed. Read the rest of this entry »

James Grimmelmann‘s excellent Laboratorium included the following text in the post Texting, Telegraph Style:

t scetus tdy dodd 5 pw f potus dz n xtd to t pips, ogt all pst cgsl xgn q sj is uxl.

Before cracking open your handy desk reference The Code: Basics for Texting and Instant Messaging (which a retired FBI agent calls “a valuable asset to families who are in the dark about what their children are involved with on the internet”), consider that this cryptic message was sent not in the 21st century but early in the 20th. It translates:

The Supreme Court of the United States today decided that the power of the President of the United States does not extend to the Philippines, on the ground that all past Congressional legislation on the subject is unconstitutional.

It’s cited in Douglas Baird‘s chapter in Intellectual Property Stories on International News Service v. Associated Press, 248 U.S. 215 (1918).

It should be available in response to all variants of questions like Will text messaging destroy the English language? and Is the use of “texting language” harming job prospects?

As reported in the Houston Chronicle, Houston criminal defense lawyer Lloyd Oliver has been accused of barratry (i.e. generally, the “vexatious incitement to litigation, esp. by soliciting potential legal clients.” Black’s 8th 2004). According to the Chronicle:

Lloyd Oliver said he befriended a homeless man named Perry Mason, who sells individual cigarettes and bottles of water on the sidewalk outside of the jail at 21 San Jacinto. Oliver said he bought Mason lunch, a pair of shoes and gave him $20 when they first met, a few years ago. Oliver said he also gave him a stack of his business cards and said, “Send me a client sometime.” Since then, Oliver said, Mason has been handing them out and referring people to the lawyer
…..
“Maybe that’s barratry. I’m not sure. I don’t think it is,” Oliver said. “But if you strictly interpret the barratry statute, we’re all guilty of some form of barratry. If I buy you a cup of coffee or give you a pen with my name on it and you refer a client to me, that would be barratry.”

The statute in all its glory appears below. After conducting my own polling of law students and recent grads, I suspect the great majority have no idea what barratry is, much less under what circumstances it could lead to criminal charges or disbarment. Caveat lawyer.

Tex. Penal Code § 38.12. Barratry and Solicitation of Professional Employment

(a) A person commits an offense if, with intent to obtain an economic benefit the person:

(1) knowingly institutes a suit or claim that the person has not been authorized to pursue;

(2) solicits employment, either in person or by telephone, for himself or for another;

(3) pays, gives, or advances or offers to pay, give, or advance to a prospective client money or anything of value to obtain employment as a professional from the prospective client;

(4) pays or gives or offers to pay or give a person money or anything of value to solicit employment;

(5) pays or gives or offers to pay or give a family member of a prospective client money or anything of value to solicit employment; or

(6) accepts or agrees to accept money or anything of value to solicit employment.

(b) A person commits an offense if the person:

(1) knowingly finances the commission of an offense under Subsection (a);

(2) invests funds the person knows or believes are intended to further the commission of an offense under Subsection (a); or

(3) is a professional who knowingly accepts employment within the scope of the person’s license, registration, or certification that results from the solicitation of employment in violation of Subsection (a).

(c) It is an exception to prosecution under Subsection (a) or (b) that the person’s conduct is authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court.

(d) A person commits an offense if the person:

(1) is an attorney, chiropractor, physician, surgeon, or private investigator licensed to practice in this state or any person licensed, certified, or registered by a health care regulatory agency of this state; and

(2) with the intent to obtain professional employment for the person or for another, provides or knowingly permits to be provided to an individual who has not sought the person’s employment, legal representation, advice, or care a written communication or a solicitation, including a solicitation in person or by telephone, that:

(A) concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication or solicitation is provided or a relative of that person and that was provided before the 31st day after the date on which the accident or disaster occurred;

(B) concerns a specific matter and relates to legal representation and the person knows or reasonably should know that the person to whom the communication or solicitation is directed is represented by a lawyer in the matter;

(C) concerns an arrest of or issuance of a summons to the person to whom the communication or solicitation is provided or a relative of that person and that was provided before the 31st day after the date on which the arrest or issuance of the summons occurred;

(D) concerns a lawsuit of any kind, including an action for divorce, in which the person to whom the communication or solicitation is provided is a defendant or a relative of that person, unless the lawsuit in which the person is named as a defendant has been on file for more than 31 days before the date on which the communication or solicitation was provided;

(E) is provided or permitted to be provided by a person who knows or reasonably should know that the injured person or relative of the injured person has indicated a desire not to be contacted by or receive communications or solicitations concerning employment;

(F) involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; or

(G) contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.

(e) For purposes of Subsection (d)(2)(E), a desire not to be contacted is presumed if an accident report reflects that such an indication has been made by an injured person or that person’s relative.

(f) An offense under Subsection (a) or (b) is a felony of the third degree.

(g) Except as provided by Subsection (h), an offense under Subsection (d) is a Class A misdemeanor.

(h) An offense under Subsection (d) is a felony of the third degree if it is shown on the trial of the offense that the defendant has previously been convicted under Subsection (d).

(i) Final conviction of felony barratry is a serious crime for all purposes and acts, specifically including the State Bar Rules and the Texas Rules of Disciplinary Procedure.