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Messages - scoundrel

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Current Law Students / Re: Admin Law and Agency?
« on: May 21, 2009, 02:06:37 PM »
As to whether or not to take Admin, ask yourself some of the following.  D/p on how many you get right/wrong, reconsider not taking it.  For my money, Admin should be a req.

1.  How many claims/defenses center around administrative exhaustion of remedies?
2.  How likely is it your client will have to survive at the agency level before getting to court?
3.  How likely is it that your client will survive at the agency level?
4.  Was the agency rule promulgated ultra vires with respect to its organic statute?
5.  Was the agency rule validly issued per n+c? Or did it require full trial-type procedures?
6.  Is your client Londoner or Bi-Metallic?
7.  If the agency rule was not promulgated by at least n+c, did it need to be? Or does an exception apply? What are the exceptions?
8.  Is the evidentiary standard for agency findings of fact on judicial review really different for formal and informal proceedings?
9.  Is State Farm still good law regarding "hard look" Judicial Review after FCC v. Fox Television (a few weeks ago)?
10. If you have to ask what "hard look" review of Agency decisions is, skip the rest of these questions and sign up for Admin.
11. What is the difference between a procedural rule and a general policy statement? When is the difference important?
12. When is due process required with respect to an Agency's termination of a benefit? What amount of process is due?
13. What's the distinction between Chevron deference and Skidmore deference? Does it still matter? Why?
14. What is the logical outgrowth doctrine?
15. If the D.C. Circuit remands to the Agency for a clearer statement of basis/purpose, does it violate Vermont Yankee?
16. Can an agency proceed by adjudication in the first instance to articulate a rule? Always?
17. Are formal or informal proceedings the default for agency rulemaking? What about adjudication?
18. One of the questions in Q17 is settled law, one is still unresolved. Which is which?
19. What must Congress provide an agency in order for a power grant to survive the non-delegation doctrine?
20. What is a Chenery remand?

You need to know the answers to all the above questions, and several dozen more, to practice law.  If you take Admin you'll get a barely-adequate intro to all this, which is still better than nothing.  Or you can practice on your first few clients.

Current Law Students / Re: Is issue-spotting a skill that can be learned?
« on: January 14, 2009, 11:04:16 PM »
I sucked my 1L first semester. My GPA over the next 5 semesters was equivalent to summa, and I graduated magna.

I read a book about law exams that explained it this way: your job is to set 100 placesettings at a picnic, 10 each at 10 tables (the 100 points or so available on an exam). You have just enough time to clean up the site (spot issues, outline the question into a framework of analysis, etc., before writing), staple paper tablecloths to each wooden table, and lay out chinette paper plates, paper cups, plastic cutlery, napkins, etc. Another person across the picnic ground from you has the same job for his 100 guests. If, when your guests arrive, you're polishing fine china and silver goblets at the first table, and the other 9 tables haven't been set, you get a C. If the guy on the other side of the picnicground has a paper plate, paper cup, and plastic cutlery for all 100 guests, he gets an A+.

You can't bullsh!t law professors with the type of verbiage a tenured English Lit professor, explicating Finnegans Wake for native Martian speakers, would use. Over the course of the semester, you're not just learning rules, you're fitting them into a logical framework of analysis. The professor is proud of writing an ambiguous hypo with no clear answer for any one issue, encompassing most/all of what you talked about during the semester. You're going to piss him/her off if you write "Clearly, the parol evidence rule requires...", or "Clearly, X's act implicates negligence per se", or "Clearly ANYTHING, so I don't have to analyze the legal alternative."

ALL the Note cases illustrate some elucidation of or exception to the rules/analysis from the principal case. They're ALL part of the exam. You can't polish a silver goblet on the philosophy of consideration or Learned Hand's duty formula. You have to engage EACH and EVERY fact in the hypo, affix to it a rule of law, and analyze accordingly. A short paragraph for each. Each side of the question. Nothing is CLEAR. Everything is ambiguous and double-sided and requires you to know and briefly hit on each side.

My 1L first semester exams in CivPro and Ks and Torts were 20+ page C and B- conclusory pieces of crap. My 3L A+ exams in Labor Arb and Admin and Corporations were 6-8 page, "brevity is the soul of wit" engagements of the facts of the hypo with the rules of law and analysis discussed in class and the casebook, with brief hits on alternatives from the note cases and on policy rationales, etc.

You can do the same thing. Everybody has their own advice. I would leave you with 3 words: framework of analysis. The logical structer of rule/analysis triggered by a given nugget of fact. "X will say that Y's conduct in (engage fact here) violated the statute passed by the state and was negligence per se. (Analysis, policy rationale, all on the surface, no goblet-polishing). Y will say, because of (engage ambiguous second fact here), the harm done was not that targeted by the statute, so it is not negligence per se (analysis, etc.)." ALL without getting BOGGED DOWN. Your professor is testing everything, or almos everything, you talked about for 3 1/2 months. It's all there in the convoluted hypo. That's why you HAVE to spend a good amount of time preparing to type: reading/re-reading the hypo an call, extracting issues from the fact pattern, fitting the issues into the analsis framework you've developed, etc.

Current Law Students / Re: First Assignments
« on: August 14, 2008, 12:21:26 AM »
Anyone else get a new client this week (and the statute of limitations is about to run on their claim) and discover you have a ton of research, reading, writing, and general lawyering to do in a week? It gets me frustrated that clients don't come in to the office earlier, and that courts don't adjust the statute of limitations to make it more convenient when clients sleep on their rights.

OP: I agree with everybody else that you're off the mark comparing Harvard sub-median grads with Pace sub-median.

Still, I'll offer my own story as encouragement, if that's what you're looking for. I just graduated from a T50 located somewhere between the Rockies and the Mississippi. My 1L first semester, I didn't do well. Right around median. (It sunk me as far as 1L Spring OCI, but I'm getting ahead of myself). I didn't read any "how to beat law school" books or "how to write law exam" books, like a fool. I didn't use any study aids. I was the idiot who figured I didn't need those things.

So, got my head straight for 1L Spring semester. I was at exactly 20% for that term, and it nudged me just barely into the top 33% for the end of my 1L year. I even booked Property.

Next fall, I was watching with envy while everybody with top 1L grades landed all the week 1 and week 2 OCI interviews with the top firms. You know how it goes. I actually managed to get a summer gig through 2L Fall OCI, but it was at a less-than-prestigious firm (not that that matters). It was only for a half-summer, and didn't pay all that well.

Meanwhile, I seriously applied myself 2L year.  I didn't journal, didn't even try to write on. But I did do moot court, and did quite well. Runner-up for best brief in one competition. I also was in the top 12.5% for my 2L year, which brought me into the top 20% overall. I booked a couple more classes.

I was back in the OCI interview pool the next fall as a 3L. Ended up getting an offer from a Pacific Rim regional that pays market and is strong in my desired practice area. I didn't slack off then either. I did a little better my 3L year than 2L, just under 10% for the year. That brought me under 15% overall, and I graduated Magna just barely.

So, I started at just below median, feeling like sh!t. I didn't quit, finished very strong, and got a great offer. When I pass the Cali bar 3 weeks from now, I'll be ready to start the next stage.

So, for me, 2L year was more "important" than 1L, in the sense that it determined the offer I got, and dug me out of a hole. My story is the exception, I know, but it proves it can still happen.

You completed a 1L year at an Anglophone law school, including a mandatory Property survey class, and didn't discuss the ROP? You should sue. Get a partial refund.

Except it dawns on me that I'm a little slow on the uptake, and you're just kidding. Right?

RE OP's predicament: sounds like you made your own bed, brother. You're pulling all Bs as a self-admitted slacker, which means with any application at all you could probably be a B+/A- student. Then a random D from a vengeful Prof wouldn't have cost you your scholarship. Maybe she did screw you, and maybe your school's admin is circling the wagons. Life is for real. The magnitude of the effect on you has a lot to do with you treating a professional school like a UG pub crawl.

Go ahead and open both barrels on me, I don't care. You know, and have already considered this in the wee morning hours you've tossed and turned over this, that a good part of what I'm saying is true.

Current Law Students / Re: Mostly A's...How much will a C hurt?
« on: May 15, 2008, 05:32:09 PM »
I agree with those who say, wait and see, you may get a better grade than you think. This has happened to me enough in 4 semesters that I shouldn't be surprised by it anymore, but I was when it happened again this past semester.

I've got two grades back so far out of five, and I got an A on an essay exam I thought I bombed bad enough for a C, and got a B+ on a multiple choice exam that I thought I nailed, I was 100% confident in all but one answer, and 95% confident in that one.

So, one more time: the exam that was tough for you, was tough for everybody. The exam that was easy for you, was easy for everybody. The curve, accordingly, will reflect this.

Good luck on that exam, btw.

Current Law Students / Re: Post Your Grades as you get them!
« on: January 28, 2008, 07:12:09 PM »
Am Jur'd?

Well the American Jurisprudence award at many schools is given to people who get the highest grade in a class.
My friend got the highest grade in four of our five classes.

That's odd, first time I'm hearing of this. Is this at all related to the CALI awards? At my school you get a certificate and get it published online at But so far as I know no Am Jur Award.

Everybody has those feelings. You CAN'T let them affect your performance! Instead of one "off" exam (assuming it was off, which you don't know), you can have 4. You're probably on a forced curve, so how you did gradewise depends on how everybody else did. If you prepared you did all you could do anyway.

I remember, way back 1L year, my property final was 100% objective questions, I think 50 or so. It was HARD! I went in thinking I knew property back and forth, and after that exam I had full confidence in maybe 10-15 answers. I spent the whole Christmas break thinking about how I was going to get an F on property. I got an A, with only around 80% correct. And on my Crim final, where I was sure I spotted every issue, argument and defense, and was patting myself on the back for a sure-fire A, I got a B+ (was still happy with that, you can do alot worse at my school). The property exam was hard for EVERYBODY, and the Crim exam was straightforward for just about EVERYBODY.

So let yourself off the hook, and for goodness' sake don't screw up the rest of your exams by worrying too much about one that's ALREADY OVER anyway.

Good luck.

Current Law Students / Re: Hey how important is spotting ALL the issues?
« on: December 12, 2007, 06:55:03 AM »
In my complex litigation exam, I didn't say one word about MDL, which our professor spent a decent portion of class time on, and which she DEFINITELY wrote into the hypo. I got an A- in a class top-heavy with 3Ls and Law Reviews, and where the Prof was tightfisted with As and A-s.

During the period b/f grades are announced, you always see everything you did wrong. Did that hypo really raise (forum non conveniens, CISG, defective incorporation, whatever)or was it a red herring? I didn't say enough about this, I said too much about that.

Try to let it go.

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