Author Archives: Michael Froomkin

ABA Proposes Bar Pass Rate Standard

Posted on July 31, 2007 by Michael Froomkin

Pushed by the U.S. Department of Education to demonstrate that it has standards that actually mean something — without which it risks losing the privilege of accrediting law schools — the American Bar Association (ABA) has proposed bright-line bar pass rate standards.

The short version is in a press release, ABA Legal Education Section Publishes Proposed Interpretation of Bar Passage Standard for Approval of Law Schools, or you could go straight to the full text of proposed new interpretation 301-6.

Here's the key part of the summary:

For established schools undergoing periodic review, the proposed interpretation offers two alternatives to satisfy the standard.

Under the first option, a school would have to show that in three or more of the most recent five years, in the jurisdiction in which the largest proportion of the school's graduates take the bar exam for the first time, they pass the exam above, at or no more than 10 points below the first-time bar passage rates for graduates of ABA-approved law schools taking the bar examination in that jurisdiction during the relevant year. For schools from which more than 20 percent of graduates take their first bar examination in a jurisdiction other than the primary one, the schools also would be required to demonstrate that at least 70 percent of those students passed their bar examination over the two most recent bar exams.

Schools unable to satisfy the first alternative still could comply by demonstrating that 80 percent of all their graduates who take a bar examination anywhere in the country pass a bar examination within three sittings of the exam within three years of graduation.

My very preliminary thoughts on this proposal is that the new rules are (1) slightly odd, (2) will undoubtedly make it harder for law schools to take risks on students and risk creating other unfortunate incentives, (3) threaten to put some schools out of business, and (4) are certain to generate enormous controversy.

I flesh out each of these assertions below. I'd be very grateful for comments and corrections.

Continue reading →

Posted in Law School | 3 Comments

A Promise Likely to Be Broken

Posted on July 30, 2007 by Michael Froomkin

It sounds like a great idea. But there's a little problem.

Richardson vows Cabinet preview: Democratic presidential hopeful Bill Richardson said he would give voters a preview of his Cabinet before they pick the next president.

“I would announce my Cabinet before the election. If I'm the nominee, I would tell you who my team would be,” the New Mexico governor told a Service Employees International Union conference at Dartmouth College in Hanover.

“It would have independents, Republicans and Democrats. Don't worry, I won't overdo the Republicans,” Richardson said, drawing laughter. “It would be taken from America, not from the Beltway.”

Forget for a minute that Richardson isn't going to be the nominee. Even if he were, this is one promise that he's going to have to break. As I explained in Why Kerry Will NOT Appoint a 'Shadow Cabinet', there's a legal obstacle: 18 USC § 599.

Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both.

It ought to be legal for Presidential candidates to outline who will be in their cabinet, but with law on the books, it's just too risky — Richardson won't do it, nor will anyone else. And the fact that he and his team don't do their homework before making promises like this is one more reason among many why Richardson, a man of intelligence, achievement, demographic and geographic balance, nonetheless shouldn't be the Democratic nominee — or even the Veep.

(He would, however, make a great special envoy to those foreign leaders we Don't Talk To.)

Posted in Politics: US: 2008 Elections | 2 Comments

A Simple Way to Improve Constitutional Literacy

Posted on July 30, 2007 by Michael Froomkin

I have a modest proposal that will go a long way to stopping idiocies like this and this, in which Congresspersons and reporters covering national politics demonstrate a basic ignorance of the Constitution.

Please don't laugh, because I am serious about this: the full text of the Constitution should be printed in every US passport.

The US Passport was recently re-designed. What had once had a certain classic simplicity was tarted up with moderately kitschy pictures of “American Icons” and embellished with “inspirational quotes”:

The new passport comes with its own name: “American Icon.” It’s hard to think of one that was left out.

The inside cover sports an engraving of the battle scene that inspired “The Star Spangled Banner.” A couple of lines of the anthem, starting with, “O say, does that star-spangled banner yet wave,” are scrawled in what the State Department says is Francis Scott Key’s own cursive.

The short, 28-page version of the passport comes with 13 inspirational quotes, including six from United States presidents and one from a Mohawk Thanksgiving speech. The pages, done in a pink-grey-blue palate, are rife with portraits of Americana ranging from a clipper ship to Mount Rushmore to a long-horn cattle drive.

You can see an animation of the whole design at the State Department's website.

My plan is simple: remove the kitsch, replace it with the Declaration of Independence and the Constitution. (Or, as a fallback, keep the kitsch and at least add the Declaration and the Constitution.)

Travel these days involves a great deal of waiting in line, not least at security and immigration, times when a passport is often in hand and Americans might find themselves studying the Constitution if they have nothing else to read.

In the Constitution they might find all sorts of concealed gems, ranging from the clause providing for the impeachment of all “civil officers,” to the (long) list of Congressional powers and the (much shorter) list of Presidential powers, to that interesting Fourth Amendment — good reading while you are waiting to be frisked at the airport.

More than 74 million Americans have a passport, and the number grows every year. The passport is a great opportunity for a real civics lesson based on the things that make this country great — our real American Icons: the Declaration of Independence and the Constitution of the United States of America.

Posted in Law: Constitutional Law | 5 Comments

Emergent Comments

Posted on July 30, 2007 by Michael Froomkin

I may have mentioned this before, but I continue to be amazed and bemused by the emergence of one comment thread on this blog, Type 1 Diabetes Cure?, as a sort of clearinghouse for diabetes patients to exchange their stories and seek advice.

I assume this has happened because Google has put that page high on the results list for 'Type1 Diabetes Cure'. I usually close comments threads after a few weeks in order to keep down the robotic advertising attacks, but I intend to keep this one open as long as it has an audience.

Posted in Discourse.net | 3 Comments

Yahoo!’s Veracity Challenged

Posted on July 30, 2007 by Michael Froomkin

Does Yahoo! have more in common with Gonzales than is good for them? You may recall the cause celbre of Yahoo! giving up email records to the Chinese government which were then used to jail a dissident. According to Yahoo! at the time the issue hit the fan, the story was that when Yahoo! had been asked for the email records Yahoo! didn't know this was a political rather than ordinary criminal matter.

Now, however, there's evidence that at all relevant times Yahoo! knew or should have known that this was a political case. The case is made out by Rebecca MacKinnon at RConversation: Shi Tao's case: Yahoo! knew more than they claimed.

Posted in Internet, Politics: International | 1 Comment

Snarky, Yes — But How Is It Wrong?

Posted on July 29, 2007 by Michael Froomkin

Jim Henley knows how to upset me. In It Takes a Pillage he asks one of tough questions about Hillary Clinton (the other one would be about K Street, I think).

Go visit: it's not long, and I'll wait.

Now, what's the answer?

Posted in Politics: US: 2008 Elections | 2 Comments