I've put together a report for a family meeting to choose our next car. We want a compact SUV that can be flat towed behind our Itasca Navion motorhome. When various other filters are applied we ended up with four choices: Chevrolet Equinox, GMC Terrain, Jeep Cherokee, and Jeep Wrangler. This report provides an overview of the pros and cons of the various choices.
A motion for a TRO will be reviewed under the standard for a motion for preliminary injunction if a more developed record is presented to the court, but in any event, a mandatory injunction requires a much greater showing than a typical status quo injunction. Neither standard was satisfied in this case.
Advance notice bylaws are commonplace and will only be enjoined due to inequitable circumstances, not evident in this case. A review of Delaware cases where such bylaws were upheld, and those in which such bylaws were stricken, provide a useful guide for future reference.
Over at his blog Excess of Democracy, Derek Muller (Pepperdine) has a provacative post titled "NCBE Has Data To Prove Class of 2014 Was Worst in a Decade, And It's Likely Going to Get Worse." Derek recounts that the overall bar passage rate across the country for the July 2014 sitting was down as compared to previous years, and he posits that the lower results were caused by "student quality and law school decisionmaking." He believes that the data suggests that lower quality students, and educational decisions of law schools, are producing graduating classes that are less qualified overall, in turn resulting in lower bar passage rates.
In essence, students come into law school having done worse on the LSAT, and they leave law school doing worse on the bar exam.
Apropos of which, Paul Caron has the latest California bar passage data:
First time test takers from ABA-aproved law schools: down 6.5 percentage points
All test takers: down 7.1 percentage points
These declines are concentrated in the lowest ranked schools:
First time test takers at the 5 highest ranked schools: down 1.5 percentage points
First time test takers at the 5 lowest tanked schols: down 12.3 percentage points
This is not unique to California. Bar passage rates have been dropping nationally. In Illinois, for example:
The state’s overall passing rate has declined in the past five years, from 89 percent in 2009 down to 80.9 percent this year.
One might reasonably infer that the slump in law school applications has meant that all schools are taking in students today that they would not have taken 10 years ago, but that the bottom tier schools have been disproportionately affected by this trend, which makes sense. As Brian Tamanaha has noted:
A sharp decline in applicants inevitably leads to a decline in the quality of law students, manifested in declining LSAT/GPA medians and rising acceptance rates. A decade ago, for the entering class of 2003, only 4 law schools accepted 50% or more of their applicants (the highest at 55.4%). Jump forward to 2011: 42 law schools accepted 50% or more of their applicants, broken down as follows: 29 schools accepted between 50% and 59%; 7 schools accepted between 60% and 69%; 5 schools accepted between 70% and 79%; one law school accepted 80.1%.
Here is another comparison to put the decline in perspective: A little more than half of the applicants who applied to law school in 2004 were accepted somewhere; in 2013, around seventy-five (and perhaps eighty) percent of the people who apply will be admitted somewhere. As law schools reach ever deeper into the applicant pool, they will admit students who should not be in law school. Applicants with low LSAT/GPA scores, in particular, have a higher risk of failing out and a higher risk of not passing the bar exam.
The bottom tier schools now are truly scraping the bottom of the barrel, which is reflected in their bar passage rates.
When a government agency regulates people and businesses, it must comply with the Administrative Procedure Act (APA) and various other federal statutes that limit government power. It has four basic purposes:
1. To require agencies to keep the public currently informed of their organization, procedures and rules (sec. 3).
2. To provide for public participation in the rule making process (sec. 4).
3. To prescribe uniform standards for the conduct of formal rule making (sec. 4 (b)) and adjudicatory proceedings (sec. 5), i.e., proceedings which are required by statute to be made on the record after opportunity for an agency hearing (secs. 7 and 8).
4. To restate the law of judicial review (sec. 10).
Note carefully the requirement for transparency (#1) and public participation (#2).
All of thse protections--public scrutiny, public awareness, cost effectiveness-get tossed out the window, however, when the government regulates by prosecution. To be sure, this is a long tanding problem. Law professor Roberta Karmel wrote a great book Regulation by Prosecution on the problem as far back as 1982. But now the problem is far worse, as an expose by Fortune explains:
If you’re running a Fortune 100 company, there’s a 10% chance you’ve got Justice Department lawyers helping you out.
That’s according to preliminary data compiled by researchers at George Mason University, who studied more than 500 criminal settlements between the Justice Department and public companies between 1984 and 2011. The data, which will be refined and released in a report in early 2015, shows that the Justice Department has drastically increased its use of non-prosecution (NPA) and deferred prosecution agreements (DPA) since 2003.
NPAs and DPAs are agreements between prosecutors at the Justice Department and corporations in which the DOJ grants amnesty from criminal conviction in return for the defendant agreeing to a set of requirements, which range from the payment of fines to submitting to new regulations and the creation of new business plans. ...
Copland points to examples where such agreements have resulted in corporate monitors firing executives and board members and changing sales and marketing plans. He argues that these agreements have led to the creation of a “shadow regulatory state” that has not been sanctioned by Congress or, in some cases, even reviewed by a judge.
If the government is going to persist in using NPAs and DPAs as a de facto substitute for regulation, then the government should be forced to ensure that these agreements are subject to the same transparency, public participation, and cost benefit analysis as regulations.
I had a slip and fall at a restaurant tonight after Christmas Eve dinner. (No. It's not what you're thinking. I had only had two beers. It was dark and the step was hard to see.) The manager freaked and then double freaked when I mentioned I was a lawyer. My first thought was "payday!" Mega-settlement baby.
But my second thought was that it was just a scraped knee and injured pride. And then my third thought was about all those nasty things I've said about trial lawyers over the years. And then my fourth thought was that I'd end up as a story on Walter Olson's Overlawyered blog! And my final thought was I'd never be able to hold my head up around my tort reform pals again!
So I'm just going to put some ice on it and forget about it.
As a conservative and unabashed proponent of democratic capitalism (as the great Michael Novak defined it), you might think I have no problem with the commercialization of Christmas. But you would be wrong. I hate it. It distracts our focus from the child in the manger and the mission for which he became both wholly God and wholly human.
Some years ago Helen and I chose to opt out. We decorate lightly and give gifts to a few close family members. But we stopped giving each other gifts. Instead, we donate the money we used to spend on gifts to Catholic Charities LA and the Los Angeles Mission, both of which do great work for the poor and homeless in our community. It makes the season far less stressful and reminds us annually of what the season is supposed to be about.
You too may find that not buying into the Hallmarkization of Christmas makes it more meaningful.
For years, bossy men’s magazines have been telling us it’s all about plain fronts and narrow silhouettes; basically, they want everyone to dress like Daniel Craig’s butler. Harbaugh does not dress like Daniel Craig’s butler. He has alternated between pleats and flat fronts, but he likes his pants roomy and airy like a McMansion’s wine cellar. Harbaugh’s wife Sarah did a hilarious mock PSA in which she lamented her husband’s condition of “dad pants,” and her description is perfect. It doesn’t matter if you have kids or not—if you wear Jim Harbaugh pants three days in a row, you wind up buying a minivan.
But I loved these khakis. I loved them the second I put them on. Harbaugh is a sartorial genius. You wear these khakis and within two minutes, you forget you’re wearing pants. You’re free, relaxed, comfortable, happy. In Harbaugh pants, I felt like Brando in Tahiti.
I adopted Harbaugh pants (plus golf shirt and sneakers) as my daily uniform several years ago. They're utterly unfashionable, but I love them. Sadly, if my student evaluations are anything to go by, my students do not share my affection for them.
Jim Hamilton has a list of seven "pieces of legislation amending the Dodd-Frank Act passed the House in the 113th Congress by a bi-partisan vote, sometimes an overwhelming bi-partisan vote, but were never taken up the Senate."