Jul 31
8:43 AM

It Could Be Worse

Bar exam takers in 17 states were unable to upload their answers to ExamSoft by the July 29 deadline for the first day of testing. Although the states extended the deadlines, many students reported trying for hours without success and missing much-needed sleep before the next two days of testing. From Inside Higher Ed:

One law blogger, Josh Blackman, wondered what would happen if failure rates are higher this year. He explained: “And for crying out loud, this is serious business. Failing the bar in this economy is a 6-month sentence of unemployment. Somewhere, a plaintiff’s lawyer is putting together a class-action suit for those who used ExamSoft and failed.”


Jul 29
7:53 AM
Jul 21
10:29 AM

Predatory Practices by Companies Offering Help with Student Loan Repayment

“Debt settlement companies, which offer to help borrowers lower their monthly loan payments for a hefty upfront fee, have long been fraught with problems. But federal and state regulators are spotting new instances of abuse as the companies shift away from their traditional targets — credit card and mortgage debt — to zero in on student loans. The companies are coming under fire for potentially questionable tactics.

“Illinois is … the first state to bring legal action against debt settlement companies in connection with their student loan practices, contending in two separate lawsuits that Broadsword Student Advantage and First American Tax Defense duped vulnerable borrowers into paying for help that never arrived.”

For the complete story, see the New York Times article Companies That Offer Help With Student Loans Are Often Predatory, Officials Say.

For the Illinois attorney general’s press release about the cases, click here.


Jul 18
7:28 AM
Jul 16
1:29 PM

Affirmative Action Seesaw in Texas

In a case that has seesawed back and forth between the Supreme Court and lower courts, the latest swing has the Fifth Circuit upholding the affirmative action program at the University of Texas. The court notes that “the Supreme Court faulted … this Court’s review of UT Austin’s means to achieve the permissible goal of diversity—whether UT Austin’s efforts were narrowly tailored to achieve the end of a diverse student body. Our charge is to give exacting scrutiny to these efforts.” Applying a strict scrutiny review, the court concludes, “[T]he backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of race towards a critical mass. We have hewed this line here, persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race, faithful to the content given to it by the Supreme Court.”

No doubt, the last has not been heard of the case Fisher v. Univ. of Texas at Austin. In anticipation of further litigation, the reader may wish to consult the procedural history laid out in today’s Chronicle of Higher Education.


Jul 11
8:07 AM

Are You Starting a New Job (or Hoping To) Soon?

… Then it’s time to start taking free or inexpensive legal research seriously. No longer can you hop on an expensive legal database without thinking about it because the costs are included in your tuition fees. Even if your employer has a flat-fee contract with Westlaw or Lexis, that flat fee is based on usage, and you will be held accountable for excessive usage that leads to fee increases.

Soooooooooo, take a look at Google Scholar.


Note the button under the search box that allows you to search case law. Under that, you have the option to select your jurisdiction. The Google Scholar database, which like the regular Google search function is available for free, includes cases from the United States Supreme Court (since 1791), the United States Courts of Appeals and United States District Courts (since 1923), and supreme court and intermediate appellate courts from all states (since 1950). Although it does not include statutes, you can find the official versions of statutes on government web sites (watch for a future post), also for free. If you select the articles button on Google Scholar, you can find law review articles on your legal research topic.

To find out more about Google Scholar and its advantages and limitations for legal research, read Reduce Legal Research Costs with Google Scholar by Eric Voigt.


Jul 1
1:32 PM

Prof. Rappaport Cited Heavily by Scalia

In National Labor Relations Board v. Noel Canning, No. 12-1281, slip op.  (S. Ct. June 26, 2014), the Court invalidated Pres. Obama’s three recess appointments to the NLRB. In their concurrence, at page 10 [of the concurrence] Justices Scalia, Thomas and Alito take exception to the majority’s understanding of the terms “recess” and “session” in the constitutional allocation of recess appointment power and examine an interpretation developed by USD law professor Michael Rappaport in his 2005 UCLA Law Review article , The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1569 (also relied upon in the Brief of Constitutional Law Scholars as Amici Curiae for Respondent).

The concurrence notes that Rappaport suggests a colloquial interpretation “that the recess-appointment power would be activated during any temporary suspension of Senate proceedings, but appointments made pursuant to that power would last only until the beginning of the next suspension (which would end the next colloquial session).” While Scalia finds this approach more “linguistically defensible” than that of the majority opinion, it still  “leaves the recess-appointment power without a textually grounded principle limiting the time of its exercise.” In his ensuing lengthy discussion of this point, Scalia refers to Prof. Rappaport’s article three more times and also cites a manuscript of another paper by Prof Rappaport, Why Nonoriginalism Does Not Justify Departing from the Original Meaning of the Recess Appointments Clause .

Recognition of scholarly work by Supreme Court justices is reserved for a relatively elite echelon of law professors, and USD is well represented by Prof. Rappaport in this group.