I came across this article and had to share.  The Cleveland Browns offered Andrew Sweat of Ohio State the opportunity to play in the NFL, but Mr. Sweat (nice name for a football player I must say) turned down the offer to instead attend law school.  His decision was also made in large part because of the multiple concussions he’s sustained throughout his football career and the risk to his health should he pursue a professional career.

I wish Andrew Sweat the best of luck in law school; however, I would like to offer some friendly advice.  While I may have never played football or any other contact sport, I can assure Mr. Sweat that he’s in for some more headaches in law school and afterwards.  A few headache-inducing memories quickly come to mind:

-          My first legal writing assignment that I assumed I nailed, only to find out I bombed

-          Contracts class—every single minute of it

-          The Rule Against Perpetuities

-          Gunners

-          FINALS

-          Law Review editing

Since I graduated a little over a year ago, I’d also like to warn Mr. Sweat about the headaches after law school:

-          The Bar exam

-          Clients who believe you can work miracles in 25 minutes

-          Senior partner who believes you can work miracles in 25 minutes

-          Clients who believe the law can solve all of their personal problems

-          CLE sessions where the speaker references “additional reading material” numerous times during his presentation yet fails to provide any meaningful discussion for any of it

The above lists aren’t meant to imply that Mr. Sweat is making the wrong decision.  I just want to let him know that while yes, his concussion days are behind him, the headaches have only begun.

Just last week, Judge Jessica Recksiedler who is presiding over the Trayvon Martin case stepped down from the case, citing a conflict of interest.  The potential conflict was that a law partner of Judge Recksiedler’s husband is under contract with CNN to provide details surrounding the case.  Confused?  Yes, it’s a bit a web, but aren’t all conflicts of interest? 

This recusal is a prime example of how small the legal world can be at times—especially when a judge’s spouse is also an attorney.  This recusal also raises a lot of questions about how many conflicts of interest are never actually brought to the surface.   If you look hard enough, it’s likely that judges in most cases have possible conflicts.  In the short time that I’ve practiced (admitted baby lawyer speaking here), I’ve seen the common jump many state court judges make from prosecutor’s office to the judge’s bench.  While I’m not assuming that this jump infers nefarious conduct, if I were a defendant, I’d want to know that the judge who is deciding my fate used to share an office with the prosecutor who is now bringing the case against me.  

Are these conflicts truly concerning or just a part of the reality of the legal community?

In 2009, a small group of Harvard Law School students noticed an absurd monopoly in the bar prep space, held by an unchallenged leader with a non-evolving product. In response, these students teamed up with Harvard Law alumni to launch BarMax on January 14, 2010.

The mission: democratize bar prep by embracing new technologies to provide the very best  Since then, with the encouragement of thousands of students and an unwavering commitment to their success, BarMax has established itself as a comprehensive alternative to the stagnant, over-priced status quo.

If you are a law student who believes that there is something fundamentally wrong with being forced to take out yet another loan to pay for a $4,000 bar exam prep course, you are not alone.  Here are BarMax's guiding principles.

Guiding Principles

1. A bar exam prep course should be affordable and bar loans should not be the norm.

2. An MPRE course should be free. No deposit. No strings attached.

3. Public interest work matters and should be encouraged.

4. The best way to prepare for any standardized exam, including the bar exam, is by practicing on real questions.

5. Pass rates speak louder than words.

6. As many successful students of our system can attest, law schools should allow their students to choose the best bar exam prep option available.

7. Popularity is not an indicator of quality.

8. We are BarMax. We are not sheep.

If you decide to take the BarMax course, please let us know your thoughts.

Can you imagine being one of the attorneys arguing the Affordable Care Act before the Supreme Court?  Imagine the stress!  First, the entire world is watching your every move, and thanks to audio recordings, your every “um” and long pause will go down in history.  Second, it’s the Supreme Court, so you’re already probably already red in the face, perhaps slightly blotchy on the neck.  And finally, the Court scheduled the arguments to last 3 days.  That hasn’t happened since the 1960s.  This 3 day argument schedule is the lawyer’s equivalent of a 3 day Olympic contest. 

I remember preparing for my first Moot Court arguments.  I prepared, studied, and practiced, and after my baby 20-minute argument was over (which was heard before a panel of local attorneys, NOT Supreme Court Justices), I was exhausted and glad it was over.  I cannot fathom having to keep up that type of stamina—times a million—for 3 days in front of the Supreme Court.  I wonder if the attorneys have sequestered themselves in a local hotel with zero contact with the outside world.  I mean, no offense to any of the spouses of these attorneys, but can you imagine carrying on a small talk conversation over the phone at the end of your day?  I imagine it would go something like this:

     Attorney:  Hi, [insert term of endearment of your choice]. How was your day?

     Spouse: Stressful!  Traffic was horrible on the way to work.  My boss would not get off my back about this work project, and to top it all off, I blew a tire on the way home! 

     Attorney: Wow, that does sound stressful.  I just finished day 1 of 3 before the Supreme Court, arguing a landmark case before the Supreme Court that could determine the        outcome of health care in this country for the next 100 years. 

I listened to a short clip of the audio recording from day 1 on NPR, and the clip focused on a slip of tongue made by the Solicitor General arguing for the government.  The Solicitor’s argument was that the monetary penalty imposed by the law was not a tax so the court was not prohibited from hearing arguments because the tax had yet to be collected.  When questioned by the Justices, the Solicitor slipped and referred to the penalty as a tax.  Justice Breyer caught the slip and gently questioned whether the Solicitor meant to say “penalty.”  Again, I ask, can you imagine?!  I’ve handled a few minor hearings since becoming an attorney, and after each of my hearings I replay the judge’s every word and question my every move.  If I were corrected by Justice Breyer from the bench---even though the correction was almost done in jest—I would probably die right there on the spot.  

It’s ironic that the day before the Supreme Court takes up arguments on the Affordable Care Act, it was announced that former Vice President Dick Cheney had received a heart transplant at the age of 71.  New stories like this one, as well as the debate surrounding the Affordable Care Act, question the role of government in the realm of health care. 

There are approximately 3,100 people waiting for a heart transplant in the U.S. today, yet only about 2,000 heart transplant procedures are performed each year.  These figures beg the question, when supplies are scarce, who should regulate distribution—the market or regulations?  Should regulations keep the elderly from receiving these kinds of life saving transplants in favor of younger patients?  Should regulations require that individuals of all fiscal backgrounds and insurance coverage have access to heart screenings and transplant specialists?  Should the market rule all---whoever can pay receives the transplant?

These aren’t easy questions to answer.  A 71 year-old (let’s forget for a second that this particular 71 year-old is a polarizing political figure), could likely have several quality years ahead.  However, are those years more valuable than say the additional years added to the life of a 50 year-old who may have yet to see his/her children graduate from college or get married?   That type of question is way above my pay grade (and since I do this for free, that's not a high bar).  

There’s obviously a debate here that’s larger than the “new heart for Cheney” going on here.  As a society, I think collectively we’d like to view ourselves as in a positive light as treating every human with worth and value—you know the whole “all men are created equal” thing-- however, the health care system in this country would suggest that we have a long way to go towards reaching that ideal.  

One of the things law school teaches its masses is the idea of learning to argue and understand both sides of an argument.  After my first few weeks of classes, I began using this “skill” in my personal life—arguing just for the sake of arguing.  It was quite a lovely habit, as I’m sure you can imagine.  So while I may look at most issues now in the “gray” realm, seeing both sides, there’s the rare occasion when I simply can’t get past my initial gut reaction.  My gut on this one is “Man Dies + Woman Conceives Through In Vitro = NO Social Security Benefits for Child.”

The United States Supreme Court will hear oral arguments in an interesting case today to determine whether a child born through in vitro fertilization after the death of the parent can qualify for child survivor benefits under the Social Security Act.

There are over 100 similar cases involving this issue before the Social Security Administration, but this particular case being heard before the Court today involves a husband who deposited sperm with a fertility clinic after learning that he would likely die from cancer.  After his death, his wife underwent in vitro fertilization and conceived twins.  The SSA denied the claim for survivor benefits based on the position that applicable state law would not allow a posthumously conceived child to inherit property unless named in a will.  The Court of Appeals reversed the SSA and determined that the children received after death fell with the Act’s definition of child for purposes of survivor benefits. 

Clearly the Court of Appeals is living in “gray land” where every issue has multiple facets and outcomes—which I’m ok with most of the time—but sorry, Court of Appeals, this time I am camp black and white.  These children were not even conceived when the husband died.  Technology has allowed this type of gap to exist, but the law doesn’t have to accommodate it.  In my eyes, the purpose of providing survivor benefits is for support and stability of children upon the unforeseen death of a parent.  Here, the woman obviously had the funds to go through with vitro fertilization—the idea that SSA should have to financially support the wife’s conscious decision to get pregnant after the death of her husband seems crazy to me. 

So what do you all think?  Should I join the Land of Gray on this one?  Are there two sides that I’m missing? What I’d also be interested in discussing is the opinion of individuals who believe that an embryo—pre-implantation—is a human life.  Would these individuals also support full financial support of these kids?

During my first few weeks of Tort class, I felt like I heard a new cause of action every day—intentional infliction of emotional distress, false arrest, invasion of privacy, and the list goes on and on. However, I recently heard about another cause of action, Wrongful Birth.

I came across an interesting article about a couple that sued their health care professionals for failing to discover that the child had Down syndrome while the mother was pregnant despite numerous tests.  The couple argued that had they known about the Down syndrome, they would have terminated the pregnancy.

I have several problems with this ruling.  My initial thought was, wow, how lucky is this kid whose parents have put in writing that they wish the child had never been born.  No amount of “we love our child” or “we are just trying to cover health care costs” is going to detract from the fact that they are suing for WRONGFUL birth. 

Moving past the obvious emotional aspects of the case, I began to consider the legal merits of this claim.  The court found that the doctors had been negligent in their performance by failing to properly analyze and address chromosomal tests that were performed while the mother was pregnant.  I’m no legal scholar (and to be honest I didn’t even get an “A” in Torts), but when I think of negligence, I think about fault and liability for making a situation worse.  Basically, if the liable actor hadn’t been involved, everyone would have been better off.  Think of your common slip and fall scenario--- you have a plaintiff strolling along the grocery store aisle, which has recently been mopped by a grocery store employee without leaving a warning sign. Here’s the classic case where the employee’s actions have made things “worse.”  Had employee never acted, everyone would have been better off. 

Applying this admittedly simple logic to the Wrongful Birth suit here, I have a hard time seeing how these doctors made anything worse.  They did not cause this pregnancy, nor did they cause the Down syndrome condition. 

What do you think about this cause of action for Wrongful Birth?  Did the court get it right?

If you survived your first year of Property law, then you are familiar with the dreaded term “Rule Against Perpetuities.”  So confusing is the law, in fact, that in some states, a lawyer cannot be liable for misapplying this old doctrine. 

After wrapping up my Property law class, I was hopeful I’d never have to think about confusing future interests ever again.  Well, imagine my surprise when last weekend I heard the term out of the mouth of none other than George Clooney.

In the film, The Descendants, Clooney’s character is the trustee for a Hawaiian land trust valued in the multi-millions.  He and his cousins are in the middle of a forced sale of the precious Hawaii land because of the –you guessed it--- the Rule Against Perpetuities!

Unfortunately, during the entire film I couldn’t stop thinking about my Bar review notecards on “RAP.”  I was desperate to piece together how the rule was applying in the situation at hand in the film.  Certain, that once and for all, I could finally understand it! On the way home I even whipped out good ‘ol Wikipedia for more  info.  To make an already pretty pathetic situation worse, I even got in a bit of an argument with my husband after he tried to explain how he thought the rule applied based on the movie.  I was quick to correct my darling husband and assure him that the RAP was incredibly complex, so he shouldn’t even try.  He loved that, I can tell you. 

So once again, Property Law reared its ugly little head back into my life and took away the usual enjoyment that comes from staring at George Clooney on the screen.  Ahem, I mean the enjoyment that comes from watching great cinema. 

Is anyone else surprised the film decided to actually mention the phrase?  I mean how did the screenplay authors even know about it?

The company has been battling rising labor costs and increased competition. More importantly, however, the 87-year-old company has to deal with the health-conscious Americans that favor yogurt and energy bars over the dessert cakes and white bread they consumed 30 years ago. In fact, according to reports, last year 36 percent of Americans ate white bread in their homes, down from 54 percent in 2000. Meanwhile, about 54 percent ate wheat bread, up from 43 percent in 2000. And consumption of healthy snacks is growing too. There just isn’t a whole lot of healthy benefits from Twinkies and Ding Dongs….who knew?

In Hostess' Chapter 11 filing on Wednesday, the company said its rivals have combined and expanded their reach, heightening competition in the snack space. Hostess' competitors range from Bimbo Bakeries, which makes Entenmann's baked goods, and McKee Foods, which make Little Debbie snack cakes. It also faces competition from larger food makers like Sara Lee and Kraft Inc. To make matters more difficult for the company, Hostess employees are unionized while most of its competitors aren't. As a result, Hostess has high pension and medical benefit costs.

Who knows if they will emerge from Chapter 11. The move to healthier foods may be too much to overcome. Sad day.

During law school, I sat through my fair share of constitutional law discussions.  In fact, nearly every class I took during law school had some sort of constitutional component, even if it was minor. So imagine my surprise when the headlines for the last couple weeks have discussed a constitutional term that I had never heard of – recess appointments! 

President Obama is receiving criticism from many Republicans for making appointments while Congress is in recess.  The most controversial appointment was naming Richard Cordray as the first director of the Consumer Financial Protection Bureau.  This appointment comes after months of a standoff between the President and the Senate concerning the nomination.  Originally, consumer advocate, Elizabeth Warren, had been considered for the top post at the agency she had a large part in creating; however, because her appointment was unlikely with the current makeup of the Senate, President Obama moved on to Richard Cordray.  (Side note: Senate Republicans clearly didn’t want Elizabeth Warren taking charge of the new consumer agency.  Do you think they’ll be happier with her as a fellow Senate member? Ha.)

In order to finally name Cordray as Director and get the Consumer Financial Protection Bureau up and running, President Obama exercised his power under the recess appointment clause and named Cordray to the post without the Senate.  The recess appointment clause provides that “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” 

The biggest issue with Obama’s recent appointments stems from the Republicans' claim that the Senate was not in recess at the time the appointments were made.  Instead, because the Senate was conducting “pro forma” sessions, there was no recess going on therefore Obama did not have the authority to make the appointments. 

Now, I don’t think you have to graduate from law school to question these pro forma sessions.  Nearly every Senator is out of D.C., gone for the holiday season.  Sure, the Senate may have had a junior Senator strike the gavel to begin the pro forma session, but he did so to an empty chamber. 

I don’t want to belittle any legitimate argument concerning Separation of Powers and the Constitution, but I’d like to wager the guess that the American public does not care about this current debate.  The Consumer Financial Protection Bureau was formed, whether Senate Republicans like it or not, and holding up the appointment of its Director is merely an attempt to repeat history and undo the creation of the agency.  The 2012 election is months away, and those newly elected wouldn’t even take office until January 2013.  Can you honestly believe that you could hold out on appointing Cordray for another year?  Well, for now, Obama’s Justice Department as given the green light to the appointment.  The irony of the whole thing is that even if Senate Republicans were able to stall the appointment past the 2012 election, it’s now possible that Elizabeth Warren could have a seat in the Senate come 2013.  Karma?

Apparently, the woman hopes to turn her appeal into a class action suit, which would allow cinemagoers across the US to sue on similar grounds if they found themselves watching films on the basis of a misleading trailer. Coming as no surprise, both the Emagine cinema in Novi, Michigan, and distributor FilmDistrict are expected to vigorously contest. The cost of the movie ticket is the suit's only demand.

That sound you hear is the collective slap on the foreheads of those that learn of this woman’s “plight.” I’m going to chalk this one up as a “quit wasting our time, lady” type of suit. 

The Lawyerist posted a great article on how to deal with less than steller law school grades.  First year law school grades definitely effect OCI interviews and your ability to find a job after graduation, but there are steps you can take to mitigate the impact of grades on your law school career.

The Lawyerist suggests that during OCI interviews, "There is no need to defend a grade unless they ask. If they do, direct them back to your other strengths. Something like “Yes, I was slightly disappointed in my grades. At the same time, I learned from [prior experience/work experience] that having [these skills] really helped me stand out in [prior experience.]  Lawyers do not remember their grades. If you can get an interview, show them why you would make an excellent clerk, and they may not even ask about your grades."

You can also be proactive and improve your resume in other areas.  The lawyerist says "start networking and find an opportunity to do some real legal work. Depending on the employer, legal experience can be more important then law review. Another good option is to sign up for a law school clinic."

Click here to read the full article.

Also, check out Allie's article, "Grades: How to Bounce Back From First Semester Scores."

A friend of mine showed me this website, and of course I had to pass it along to you all.  Now, fair warning, on Thursdays around LSJ we try and keep it pretty light and easy-going.  The following link is definitely what you'd put in the category of "fun."

If any of you ladies are already fans of the "Hey Girl" Ryan Gosling website, you will be thrilled to know that there is now a law school edition.  The website it complete with Ryan Gosling talking about quit claims, irrevocable trusts, and stare decisis.  Too funny.  I have shared my favorite above.  Check out the site and share away, ladies.  (Sorry, guys!)