Under Mr. McConnell’s plan, Congress would pass legislation authorizing the president to request a total $2.5 trillion debt-limit increase in three stages—$700 billion by Aug. 2 followed later in the year by two $900 billion installments. The increases could take effect without congressional approval, but Congress could block it with a resolution of disapproval.

In general, under McConnell’s plan: (1) the President is required to propose the debt-limit increase; (2) Congress can respond with a “resolution of disapproval,” which requires a vote of a majority of each house; (3) the President can veto that resolution, which presumably he would; and (4) Congress can attempt to override that veto with a 2/3 supermajority in both houses.  The purpose of the plan is that Republicans can place the blame (some individuals find raising the debt ceiling unpopular) for raising the debt ceiling on the President, because there is no chance that 2/3 of both houses would vote against raising the debt ceiling.

Such a plan is likely unconstitutional under the Supreme Court’s decision in I.N.S. v. Chadha, 462 U.S. 919 (1983).

A. Chadha

In Chadha, Congress passed an Act which allowed the Immigration and Naturalization Service (INS) to suspend deportations of illegal aliens.  However, the Act further specified that Congress could reject the INS’s decision to suspend deportation, and that, to do so, either house of Congress merely needed to pass a resolution of disapproval, with a majority vote.

After Congress passed such a resolution of disapproval, the resolution, and Act, were challenged and eventually were reviewed by the Supreme Court.  The Court held that the Act was unconstitutional.

The Court wrote that, when one of the three branches of the government acts, it must act according to the procedures set forth in the Constitution. Importantly, the Constitution sets forth a specific procedure Congress must follow when it takes a legislative act, meaning doing something like passing a bill, but not simply making internal Congressional rules.

Specifically, when taking a legislative act, except in limited circumstances spelled out in the Constitution (such as impeachment), the Constitution only allows Congress to act through “bicameralism” and “presentment.”  “Bicameralism” means passage by both houses, and “presentment” means presenting the passed bill to the President for signature or veto.

In Chadha’s case, the Act allowed Congress to take a legislative act (passing a resolution of disapproval) without bicameralism or presentment, because either house could pass the resolution of disapproval, and the President didn’t get to sign or veto the resolution.  Thus, the Act was unconstitutional.

To dispel any argument that such a ruling would cause inefficiencies, the court explained, in one of my favorite Supreme Court lines of all time:

The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked. There is no support in the Constitution or decisions of this Court for the proposition that the cumbersomeness and delays often encountered in complying with explicit Constitutional standards may be avoided, either by the Congress or by the President. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.

I.N.S. v. Chadha, 462 U.S. 919, 959 (1983).

B. McConnell’s Plan

McConnell’s plan is slightly different than that in Chadha.  Unlike Chadha, it does not authorize a single house to take “legislative action.”  However, it does allow the President, as opposed to Congress, to take legislative action, and allows Congress to effectively have a veto power over the President.  Thus, Chadha, as well as the Constitution, suggests that McConnell’s plan is unconstitutional.

First, Article 1, Section 8, lists Congress’ powers, and Clause 1 of that Section states that “[t]he Congress shall have Power . . . . to pay the Debts . . . .”  It is Congress’ role to “pay the Debts,” which, throughout our nation’s history, has meant that Congress proposes the plan to pay the debts, and the President signs or vetoes, and then Congress can override a veto.  In other words, to “pay the Debts,” bicameralism and presentment must be followed.

However, under McConnell’s plan, the roles of Congress and the President are flipped.  The President is the one who must propose “legislation,” and then Congress effectively gets veto power over the proposal.  To pass this “legislation” (i.e. raise the debt), Congress would not need a vote from both houses (bicameralism) – rather, they would only need one house NOT to pass a resolution of disapproval (because if both houses don’t vote to disapprove, the debt increase occurs).  If both houses passed such a resolution, and the President then vetoed it, then only one-third of one house could ensure that the debt ceiling would be passed, because the only way to stop the debt ceiling increase at that point would be to have 2/3 of each house vote against the debt ceiling increase (to override the President’s “veto”).

In other words, under McConnell’s plan, there is no ordinary bicameralism and presentment process.  Instead, Congress simply abdicates its power under the Constitution to “pay the Debts.”  Hence, McConnell’s plan is unconstitutional.

C. Aside: Political Accountability

As an aside, one of the main checks against the power of Congress and the President is accountability to the people.  The purpose of McConnell’s plan is to avoid accountability, by making the President appear to be the only one responsible for debt ceiling increases, when, for all practical purposes, Congress forces the President to increase the debt ceiling.  Such avoidance of accountability is not unconstitutional, per se, but certainly raises doubts as to its desirability.

Sen. Dianne Feinstein (D, Calif.) said in a statement that she had reached an agreement with Sens. Amy Klobuchar (D, Minn.) and John Thune (R, S.D.) under which a 45-cent-a-gallon tax credit for blending ethanol into gasoline would expire on July 31. A 54-cent-a-gallon tax on imported ethanol would also expire at the end of the month.

Some $1.33 billion in savings would be used to reduce the $14.29 trillion U.S. debt. A third of the savings—an estimated $668 million—would be used to extend tax credits, such as those for alternative-fueling infrastructure like ethanol pipelines that some producers hope to build.

Despite the fact that politicians almost uniformly agree that the nation has a debt problem, and thus needs to either decrease spending, increase taxes, or both, the measure failed, because there were not enough votes to overcome a filibuster.

There are two sources of blame for this.  First are the Democrats, who overwhelmingly voted against the bill.  Supposedly one of the major reasons was because Harry Reid whipped against the bill due to alleged procedural problems.  Though I think the more likely answer is so that Democrats can attempt to grandstand about creating or preserving jobs, no matter how worthless the jobs are.  (For example, President Obama recently remarked on the Today Show, that “there were ‘structural issues with the economy. . . . You see it when you go to a bank you use the ATM, you don’t go to a bank teller.’”)  It’s true that subsidizing ethanol will preserve jobs in the ethanol industry.  Though of course if those jobs are worthless, then the government might as well be paying people to dig holes and then fill them up again.  It is inexcusable that Democrats would overwhelmingly continue to support ethanol subsidies when the evidence simply shows that they do more harm than good.

But the more surprising source of blame are a select group of Republicans, led by Grover Norquist (not a senator), the founder of the Americans for Tax Reform.  The ATR members have signed a pledge that they refuse to raise taxes for any reason except for economic growth.  Norquist ordered the members of the ATR to withhold support for the anti-ethanol bill because eliminating the ethanol subsidy, to Norquist, would be tantamount to raising taxes.

I disagree with the rationale for Norquist’s order on two grounds.  First, tax subsidies are spending just as much as they are tax increases.  If the government agrees to give me $10 at tax time (spending) or agrees to give me a $10 decrease in tax liability at tax time (subsidy), the net effect is the same: the government transfers $10 of wealth to me.  Likewise, the tax subsidies that the ethanol industry receives are a transfer of wealth from the government to private businesses.  Whether they are characterized as a tax increase or spending cut is immaterial.  The key question we should be asking is whether the costs of this tax subsidy exceed the benefits.

That leads me to the next objection I have to Norquist’s order, specifically, that Norquist unequivocally refuses to consider the merits of legislation that “raises taxes,” simply because he believes that it “raises taxes.”  Norquist refuses to consider the costs and benefits of what he thinks are a tax increase, even if they benefits would vastly exceed the costs.  This of course will impede bargaining with any politician who believes that solving the federal debt problem requires a combination of spending reduction and tax increases.  And this problem is exacerbated by the fact that Norquist’s definition of “raise taxes,” is much far too broad.

On July 28, 2010, at around 5:00 p.m., I walked out of Roanoke Civic Center a happy man.  I had just spent approximately sixteen hours—over the course of two days—in a gigantic room with strangers.  We had frantically typed away at our laptops and meticulously filled in bubbles on a scantron sheet.  We had to wear suits despite the sweltering temperatures in Roanoke.  Mechanical pencils were banned.  On top of all of this, the months leading up to the bar exam required quite a bit of studying, too.  Ah, it was good to be done with the Virginia Bar Exam.

I am writing this post to try to provide some guidance to future bar exam takers, whether taking the bar in Virginia or in other states, and to share my experiences about the bar exam.  I hope this post is useful and will help its readers have a realistic view of what the bar exam and the studying prior to the bar exam will be like.

BACKGROUND

First, a little background about myself so that readers realize that neither Albert Einstein nor Pee Wee Herman is writing this.  In 2010, I graduated from a state law school (top 50 in US News, but not much better than top 50).  As far as grades go, I did well in law school.  I am clerking for a federal district judge, and I have a job at a firm after that.  I consider myself to be a pretty conscientious student.  However, I’m not some supergenius that can pass the bar after studying for a week.  I didn’t pass law school due to brilliance, just a lot of hard work.  I did not work during law school, and I entered law school immediately after college.  I had a girlfriend/fiancee throughout law school as well as during bar prep.  Now she is my wife.  OK, enough about me.

To prepare for the bar, I signed up for Barbri as well as the PMBR three day prep course.  I have heard that other bar courses are fine, too, but my firm was willing to foot the bill for these two courses, so I took them.  If you’re paying for bar courses on your own, I’d recommend signing up for Barbri and skipping PMBR.  More on these later.

Prior to taking the bar, I’d heard widely divergent stories from prior bar takers.  Some people told me that they only studied for two weeks and passed.  Many told me that they didn’t do anything except go to bar prep classes until July 4, and then started studying.  Others told me they studied like crazy for two months and failed.  Some graduates who finished near the bottom of their class passed.  Some near the top failed.  Some got up during the bar exam and ran out, never to be heard from again.  And more.

I tried to extract some commonalities from all of this “bar-lore.”  First, most people started studying much harder on July 4 than they did prior to this date.  Second, most went to all of their bar prep classes (or watched them online).  Third, most took Barbri as their bar prep course.  Fourth, everyone studies in different ways.  Fifth, the month of July, whether you studied hard in June or not, is pretty miserable, but June is not.  Sixth, in general, if you take the bar exam seriously, you will pass.

BAR PREP COURSES AND MULTISTATE VERSUS STATE EXAMS

The first step in preparing for the bar is deciding whether you want to take a bar preparation course.  I strongly advise doing so.  Let me explain.

The choice between taking a bar prep course and not doing so is not like deciding whether to use a commercial outline for a course in law school.  While you could decide not to use a commercial outline and get a high grade in a course (perhaps higher than if you used the commercial outline), that is because the amount of material you need to learn for a course is far smaller than what you need to know for the bar exam.  The bar exam, at least in Virginia as well as a number of other states, will test you on a broad number of topics.  For example, Virginia tests something like 22 areas of law on the bar exam.  While you might remember your criminal procedure class from law school, do you know any Virginia law on the issue?  Do you know anything about Virginia wills or domestic relations law?  If you don’t, are you just going to read Virginia treatises and try to determine what is testable and study that?  Are you going to study it all?

The bottom line is, it would be overwhelming for all but the smartest bar-takers to just learn all the law on your own.  A bar exam prep course will help you by determining the law that is frequently tested or is testable on the exam and will teach you that.  You’ll know that important information well, and you won’t be bogged down in stuff that is rarely going to appear on the exam.  While there is of course a chance that something unusual could appear, since bar exams are curved, it’s not going to hurt you much not to know the answer to a totally random question.

If you decide to go without taking a bar prep course, you should, at the very least, buy some old Barbri books on eBay or from a friend.  These books will likely contain all of the information you need to pass the bar exam, so long as they are not more than a year or two old (cutting edge law rarely makes its way onto the bar exam).  Just remember that buying the books is not enough – you need to put in the time and learn the material from them — be disciplined!

As for which bar prep course to take, I can’t say I’m an expert on the topic.  Most people—myself included—take Barbri.  One advantage of taking Barbri is that you’ll learn the same material as a large percentage of test-takers in the state.  Since in Virginia, for instance, the pass rate is around 70% for summer bar takers, so long as you learn most of what Barbri teaches you, you should finish in that top 70% threshold.  In other words, Barbri provides you safety in numbers.  While Barbri is pretty expensive, failing the bar and potentially being unemployed for months while you study again is pretty expensive, too.

Some people also supplement Barbri with PMBR.  Basically, the word on the streets is that PMBR is better at teaching the “multistate” portion of the bar exam than Barbri.  After taking the three-day version of PMBR, which consists of one sample multistate exam and two days of video review (I only took the exam on the first day and reviewed on my own, which I recommend if you do PMBR), I did not find PMBR to be critical to my bar study.  Personally, if my firm didn’t pay for it, I would not have signed up for it.

Speaking of “multistate,” let me quickly mention the difference between the multistate and state portions of the bar exam.  In most states, such as Virginia, there are two portions of the bar exam.  The first day is generally the state testing day, in which state law is tested in essay and/or short answer form.  In Virginia, the first day includes two three hour blocks, separated by a lunch break.  In the first block of time you have to answer five essay questions.  In the second block of time you have to answer four essay questions and twenty short answer questions.  You can take this part of the exam on a laptop (which I highly recommend).  The second day is generally the multistate testing day, where you have two three hour periods to take a 200 question multiple choice exam on multistate law (generally this means the majority rule in most jurisdictions) on the following topics: torts, contracts, constitutional law, criminal law/procedure, and real property.

BEGINNINGS

My law school graduation was in mid-May, just two days after I turned in my last final exam.  Freedom – for a short while.  However, according to Barbri, I was supposed to start studying for the bar exam two days after graduation.

Barbri (as well as most other bar courses) assigns students a study program that tells them what they should be studying at certain times during the summer.  Barbri calls this the “Paced Program.”  I don’t think it is necessary to follow the Paced Program exactly, though it is useful to follow most of it.  For example, the Paced Program may ask you to write four sample essays and take two multiple choice tests on a given day as well as outline your previous day’s notes.  If I became too busy with other stuff (e.g. COA clerkship applications), I would shorten this by only taking one of the multiple choice tests and only two or three of the sample essays.

Anyway, right after graduation, Barbri told me that I was supposed to spend five days studying on my own, with each day taking a practice test (without studying for it) and then watching a video about the practice test.  The idea of this week was to help prepare students for the types of questions they would see on the multistate portion of the bar exam and to give them a benchmark of where they would stand without studying.  I figured that would only take a few hours per day, so I decided to do it.  While taking the practice tests and reviewing my answers was helpful, watching videos where a professor discussed every single question and answer possibility was not, in my opinion, worth my time.  So I took the practice tests and ignored the videos.  On the sixth day, Barbri told me to take a practice 1/2 day of the multistate exam.  I took the practice exam and reviewed my answers.  That was the end of my first week of studying.

Overall, I’d say that it’s not critical to follow Barbri’s plan for the first week of studying on your own.  While it provides some exposure to multistate questions, you’re going to get plenty of exposure over the next two months.  So if you have time to do some studying that week, go for it.  If not, it’s not a huge deal.  You’ll be taking plenty of multistate practice questions over the next couple of months.

INTO THE CLASSROOM

One week after graduation, Barbri classes began.  While law school classes, in my opinion, were both fun but often confusing, Barbri classes are super-boring (with some exceptions) but far from confusing.  To put it another way, law school professors often hide the ball, whereas Barbri professors spoon-feed you the law.

Bar prep classes such as Barbri teach you all of the subjects you’ll need to know for the bar exam—both the state and multistate portions.  However, while you’ll learn something about all of the subjects on the bar exam, the quality of the professors is not consistent.  Some professors are clearly better than others at teaching the testable material.  However, despite the fact that some professors are not so good, I do not recommend supplementing your Barbri (or whatever course you’re taking) with outside material.

Why shouldn’t you supplement what you learn in Barbri with outside material?  There is certainly a temptation to try to learn as much as you can before the bar exam.  In law school, if you know more about the tested materials than anyone else, you’ll get a higher grade.  Why not the same rationale for the bar?  Well, first, the bar is a minimal competency exam.  Your goal is to show the bar examiners that you are a reasonably competent lawyer, not show them that you know tons and tons of trivia about the law.  In other words, you write the four-part test that you learned, you analyze it, and you move on.  Don’t give legislative history, don’t explain why the rule is coherent with legal theory, don’t throw in extra stuff.  Second, the bar is pseudo-curved, as I mentioned before.  If you learn all of the stuff that Barbri teaches you as well as the average person that took Barbri, then you’ll pass the bar, since so many people take Barbri.  In fact, if a lot of people miss a question on the multistate exam, the examiners will often throw out the question so you get no credit for it whether you got it correct or incorrect.  Thus, if you just answer the questions in the way the average Barbri student would answer, you’ll likely get sufficient credit for your response.  Third, you are going to have to memorize a ton of information to pass the bar exam.  If you try to cram extra stuff in your head, it’s going to be even more difficult to memorize the information that is frequently tested.  In short, don’t supplement your bar prep course materials (unless you’re taking a really sketchy bar prep course… but if you are, that’s another problem).

Should you go to (or watch online) all of your bar prep course’s classes?  In my opinion, yes.  While not all of the professors for Barbri (or other bar prep courses) are of high quality, hearing the information presented to you in class will help you start the memorization process.  And if you can’t make it to the classroom for the course, Barbri, along with many other bar prep courses, allow you to watch the lectures online.  During 2010, Barbri posted videos online for students to view at noon on the day they were to play in class.  I’m sure this schedule might differ upon the state that you have Barbri, but that was how it worked in Virginia.

Also, if you’re watching a professor that really sucks, there is a trick you can use if you are on a Windows computer.  According to this Abovethelaw post, you can watch lectures at 1.5x speed if you do the following:

1. Start the lecture.

2. Double click on the video to make it full-screen.

3. Hold down control + shift + G, and it will play at a faster speed. To put it back to normal speed, hit control + shift + N.

Although I have a Mac, I did use Boot Camp to run Windows for this trick on two particular lecturers whom I found to be less than effective.

UPDATE: In 2011, some have reported the Barbri 1.5x speed-up trick as stated above does not work.  As I am no longer studying for the bar, I don’t know whether this is true or false.  If you happen to know more about this issue, or how to fix it, please post a comment below.

STUDYING (MEMORIZING)

In law school, I spent 1 to 1.5 hours after each class outlining the material from class so that I could comprehend how everything fit together and so I could really understand the law.  The two main purposes of outlining, to me, were to deeply comprehend the material and to memorize the material (and, for open book exams, as a reference for the exam).  However, in law school, when I really needed to memorize material, I made flash cards to drill the information into my brain.

For the bar exam, Barbri suggests that each student outline the material after each class.  I don’t think that is a great idea, so I didn’t do it.  This is because the material really isn’t hard to learn; as I mentioned before, it’s spoon-fed to you.  Moreover, Barbri provides you with two outlines for each area of law, a long outline and a condensed outline, and for some subjects, a super-condensed outline.  As a result, the main thing that you need to do for the bar is memorize the material.  Thus, I went straight to making flashcards.

The first two days of class, I made physical flashcards on 3×5 index cards.  That was a mistake.  My wrist really hurt, and I used an entire pen worth of ink in making the flash cards (seriously).  It also took four hours per day to make the flash cards.

After that, I decided to make digital flashcards that I could review on my old 1G iPod Touch.  The program I used was called iFlash.  iFlash works on a Mac and an iPhone or iPod Touch.  I’m sure that there are windows programs and programs that work for Android phones as well.  iFlash cost $14.95, but it was well worth it.

iFlash allows you to type up flashcards on your computer, import them to your iPod Touch or iPhone, and review them on there or on your computer.  iFlash is a gigantic upgrade from making paper flashcards for several reasons: (1) typing is much faster than handwriting, so typing up flashcards saved me over an hour per day; (2) you can share digital flashcards with others easily, so if you decide to study with friends, iFlash makes it easy; (3) digital flashcards are far easier to carry around than the 1,000+ flashcards you’d have to carry around if you made paper cards, and you can review them anywhere; and (4) you can make audio versions of your flashcards to review while you’re in the car if you have them in a digital format.

My recommendation for studying is to basically just try to follow the Barbri paced plan.  Go to class, make flashcards for that class, try to do a couple state essay questions or Multistate Practice Question (“MPQ”) question sets each night.  Then, every weekend, try to review all of your flashcards.  I never actually got through memorizing all of my flashcards in a single weekend.  I was able to scan through them all if I wanted, but if I tried to actually memorize each one, it wasn’t happening, even the week before the bar.  Also, once again, while it’s important to try to follow the paced plan, it’s not necessary.  I didn’t finish all of the assignments on it, but I still passed.

Although I think that reviewing flashcards is the most important part of the bar studying process, I think that reviewing essay questions is important.  Some areas of law are hard to get a good grasp of without actually writing out an answer, so taking a crack at a number of essay questions can be helpful.

CRANKING UP IN JULY

No matter how much you study during the early part of the bar exam process, you’re probably going to be worried about your situation in July.  Some of the sample essay questions you’ll do will include information that you’ve never seen before (that’s normal – learn it but don’t freak out about it), your MPQ scores might not be as high as you’d like, your friends might be freaking you out, whatever.  In any event, July will become a much busier and more stressful month.  While it’s not a bad idea to work harder in July to get ready for the exam, know that everyone is feeling freaked out just like you.  Although you feel like you’re going to fail, it’s not nearly as inevitable as you might think (I wish I could say that you’re not going to fail, but there’s no guarantee everyone will pass the bar, but the chance of failing is not nearly as certain as you’ll think in July).

That said, DON’T PROCRASTINATE.  If you skip a bunch of your classes and try to learn subjects on the bar exam from the ground up the week before the exam, it’s going to freak you out and hurt your studying on other subjects.  At the very least, go to all of your classes or watch them online so that you have exposure to all of the subjects before the last days before the exam.  I know it’s not “cool” to study hard for the bar exam, but it’s also not cool to fail.  Just take it seriously and you’ll be fine.

STAYING SANE

Through the bar study process, in May, June, and even July, you should not give up your life for the bar exam.  Throughout the process, I made sure to keep exercising six days per week for about one hour per day.  I took time off each week to see my then-fiancee and to plan a wedding.  I’d say that during May and June, I really only studied—class included—for about 40-45 hours per week.  Of course, in July, that number increased quite a bit, but on average, I did far less studying than I did in law school.

I think that it’s totally possible to study way less than I did and still pass.  However, that might also be a very good way to lose a lot of nights of sleep prior to the date the bar results come out.  I’m much happier studying harder and being confident of passing than fudging my studying and hoping that everything works out.  That said, I’m glad I didn’t live in the library during the summer.  There’s no reason to put in 80 hour weeks when studying for the bar, unless you overly procrastinate and force yourself to do that.

THE EXAM EXPERIENCE

To be frank, taking the bar exam really sucks.  If you take the Virginia bar exam in July, you’ll take it in Roanoke, Virginia, a town in southwest Virginia that’s not very close to the population centers of Virginia.  It’s about four hours from Northern Virginia, for instance.  Roanoke is not a terrible town, it’s just sort of out of the way.

The exam experience starts by driving to Roanoke.  I advise listening to lots of relaxing or loud music, whatever is best for calming you down.  Don’t just sit in silence or try to listen to audio study tools or anything like that; it will just make you nervous.  I think you should just drive down and try to have the best time you can.

When you get to your hotel / bed and breakfast / etcetera, I recommend getting in, then going for a walk or something.  Don’t sit around and study for the night.  Studying the day before this exam is really just going to freak you out.  I went to dinner with a few friends.  I was too nervous to eat much.  After eating dinner, I went for a short walk.  The walk helped calm my nerves a bit, as did talking on the phone with family and friends.  I tried to stay away from as many law students as I could except for calm ones.  I advise not hanging around students who are going to quiz you on exam topics or be amazed when you haven’t memorized all of page 37 of Barbri’s civil procedure outline.

Try to go to bed early.  You’ll be nervous, so it’s not a bad idea to take sleep medicine or drink some herbal tea if that works for you.  I surprisingly slept very well the night before the first day of the bar exam.

In the morning, do whatever relaxes you.  I went for a 45 minute run and showered.  I tried to eat some breakfast, but could not get much down due to nerves.  Then I drove early to the convention center so I would not have to worry about being late.

Once you get to the convention center, you’ll wait in a gigantic line before being “checked-in” and sent to your seat.  Most people will be in a gigantic room with hundreds of other bar takers.  When you get there, get to your seat, sit down, and get your computer booted up (assuming you’re using your computer to take the exam; I think you’d be a fool not to type it).  Then, await your instructions, and get ready for the test.

The first day of the exam is essay questions.  You’ll have half of the questions in the morning session, then lunch, then half of the questions in the afternoon.  I was most nervous for the essay exam because I feared that there might be questions I knew nothing about.  As it turns out, there was only one question I had never heard of.  For the others, I answered them confidently, just like I had answered my Barbri practice questions.  For the question I knew nothing about, I just made up the law, applied my made-up law, and came to a conclusion.  E.g. “X should prevail in this motion.  In the Commonwealth, to do A, X must satisfy (1) L; (2) M; and (3) N.  Here, X satisfied each element [explanation].  Thus, X will prevail.”  Note: YOU WILL GET POINTS for analysis if you do this.  If you write nothing because you don’t know the law, you will get zero points.  You want points, so if you get stumped, just make something up and provide good analysis.

Another note: Virginia is really proud of the fact that it is the “Commonwealth” of Virginia, not the “State” of Virginia.  Don’t call it a state, refer to it as “the Commonwealth.”  I’ve heard you actually may lose points for using the word “state” instead of “Commonwealth.”

After the first day is over, you will likely be much less nervous.  Have some dinner.  I pigged out a bit after the first day, as I was famished from not eating much in the morning or at lunch.  Feel free to hang out with friends, but I recommend staying away from types that will quiz you on how you did on the essay questions.  That will only shake your confidence and make you worried about how you did on the first day.  Then, go back to wherever you are staying, go for a walk, and do whatever relaxes you, and then go to sleep.

Day two is multiple-choice, multistate questions (the MBE).  Some people prefer the essay questions over the multistate questions.  I’m not sure which I preferred, but I was much less nervous by the time I got to the MBE, so I enjoyed it more.  Like the state essay questions on day one, the MBE is divided into two parts: one in the morning, then lunch, then one part in the afternoon.

The MBE is full of easy questions, and it is also full of trick questions.  The only advice I can give on the MBE is as follows.  First, you’ll likely be fine as long as you drilled lots of sample MBE questions during your study time.  Second, DON’T freak out about missing one or two questions.  You can miss nearly half of the questions and receive a passable score on the MBE.  That means you should KEEP MOVING, and don’t spend lots of time on one question.  Read the question, answer it if you know it, and guess if you don’t.  You can mark your pages to come back and think about hard questions later if you finish early (I finished about 30 minutes early and checked over a number of questions I was uncertain about).

Another thing: lots of people thought it was just swell to leave the exam early.  On the MBE, many people left the exam an hour or more early.  I don’t understand why someone would find this to be a good idea.  You can, and should, spend your extra time checking over your answers (or taking your time on the questions you are answering to avoid trick questions).  Imagine if you fail the exam because you missed a couple of MBE questions that you did not read carefully so that you could leave the exam early.  Are you going to be glad you had an extra hour to drive home?  The bar is really important to pass – it’s worth one final hour of your time.

CONCLUSION

I wish you all the best of luck preparing for the bar exam.  It’s a stressful experience, but so long as you don’t procrastinate, and you take the exam seriously, you will be fine.

From the left:

1. Death of Osama is the greatest thing since sliced bread.  Death of Osama cures cancer, stops climate change, makes everyone in the world love the United States.
2. Death of Osama shows that President Obama is the greatest commander in chief ever; President Bush had absolutely no hand in killing Osama.
3. When a commentator slips and accidentally says “Obama” instead of “Osama,” (I already heard someone slip on NPR this morning) he or she is labeled as a racist.

From the right:

1. Congratulations to President George W. Bush / “our military” while deliberately avoiding mentioning President Obama’s name.
2. The death of Osama could have occurred earlier, but President Obama waited until recently to improve his election prospects.
3. “Killing Osama doesn’t matter.  Who cares?”  (if this happened while GWB were in office, the left would be saying this, obviously).  Or, alternatively, “why are we celebrating someone’s death?  How cruel are we!”

From Donald Trump:

1. That wasn’t Osama.  Where is the birth certificate?

And this poll was conducted on the Wall Street Journal’s website.  The Wall Street Journal is regarded as a very high-quality publication, and the people who read it are considered to be some of the smarter individuals who read newspapers.  I’m not saying it’s true, but I think we can all agree that regular readers of the WSJ are not dummies.  Yet around 28% of WSJ’s readers think this birther movement is legitimate.

Why?  Well in addition to the fact that most WSJ readers are relatively intelligent, the paper also tends to have a large conservative readership.  So my only thought is that these readers are so immersed in being conservative that they ignore facts and vote in the poll in whatever way suits their political interest.

Additionally, Donald Trump is essentially running on a platform of being a birther and nothing else.  But some polls have him LEADING THE 2012 REPUBLICAN NOMINATION RACE RIGHT NOW.  Really?  He’s running during a time of extreme fiscal crisis, yet has a record of personal and business BANKRUPTCY.  What good does he bring to the table?  Holy crap.

And of all the things to criticize someone about, focusing on the citizenship requirement for being a president has to be one of the pettiest.  Yes, it’s a constitutional requirement, and yes, you have to satisfy constitutional requirements to be President.  But do we gain much from prohibiting non-citizens from becoming president?  Many people who are born in the United States take this country for granted.  Many who immigrate to the United States do not, and love their country more than those who have lived here for their entire life.  Is there a valid policy reason for prohibiting non-citizens, perhaps those who love the United States more than anything else, from becoming president?  Do we really have some secret fantasy that “foreigners” will become president and destroy the US in favor of their former country?  Won’t people with evil intent or fake love for the country be rooted out in the extremely-invasive election process?

The same exact thing happens with people on the left attacking people on the right unfairly.  But the birther movement has to be the most crazy recent example.

Pure-Gas.org also has a handy map of the ethanol-free gas stations throughout the United States.  This map shows lots of ethanol-free gas stations in the Southeast.

Why might you want to purchase ethanol-free gas?  For one, ethanol reduces fuel economy by, at least according to the EPA, about 2-3% with a 10% ethanol blend (E10).  Many have criticized these studies as overly optimistic and that fuel economy actually falls by 2 to 7%.  Therefore, you will get more miles per gallon by purchasing ethanol-free gas.

Second, ethanol makes gasoline more corrosive, thus causing more harm to your engine over time than if you had just used gasoline.  In 2009, for example, Toyota had to recall 214,570 Lexus vehicles because of corrosion caused by ethanol.

Additionally—and this is really significant for individuals with older cars—E15 is coming.  The EPA recently decided that it is OK for gas stations to sell gasoline that is contaminated with up to 15% ethanol, which is 5% greater than the current rule of 10%.  While the EPA claims that a mixture of 15% ethanol in gasoline is “safe” for car engines, it recognizes that this is only the case for car engines made after 2001.  If you have a car made in the year 2000, the EPA admits that you shouldn’t be putting this stuff in your tank.  Additionally, even if you have a car that the EPA deems as able to deal with the more-corrosive 15% blend, do you really want to put something in your car that is more corrosive rather than less corrosive?

There are also many concerns about the damage E15 will do to non-car engines, such as lawn mowers and boats.

E15 will also of course reduce fuel economy even more than E10.  So when E15 is here, that is even more reason to find gas stations that sell ethanol-free gasoline.

Finally, buy buying ethanol-free gasoline, you avoid supporting the economic and environmental disaster that is the ethanol industry.  See this post for more details.

Ethanol-free gas might cost slightly more money at the pump (the ethanol-free gas station in Montgomery is about 10 cents per gallon more expensive than other gas stations).  But the reason isn’t because ethanol is cheaper to produce, rather, it’s because ethanol producers get a gigantic subsidy from the federal government.  In any event, the increased cost of ethanol-free fuel is offset, and perhaps subsumed by the benefits of avoiding ethanol, primarily better fuel economy and less damage to your engine.

The iPad, note home button at botton of screen (image from Apple)

There are rumors that the upcoming versions of the Apple iPad and iPhone will rid themselves of one of their few physical buttons: the home button.  See, e.g., The L.A. Times.  The home button was a button located at the bottom of the iPad and iPhone that a user could press to exit out of whatever application that user was in to return to the home screen.  It was sort of like a no-questions-asked, get-me-out-of-here kind of switch that you could press when you needed to, say, check your email or make a phone call.  Analysts have suggested that the home button’s functions will be replaced by a variety of “multi-touch” gestures, which will allow a user to swipe a certain number of fingers across the iPhone or iPad’s screen to return to the home screen, or to switch applications.

Apple’s rumored decision to get rid of this physical button on the iPad and iPhone is not an isolated choice, either by Apple or by other manufacturers.  Apple has eliminated physical buttons for controlling music playback on the most recent version of the iPod Nano.  Motorola’s much-hyped new tablet PC, the Motorola Xoom, has no physical buttons.  But Apple’s rumored decision underscores this movement.

The Motorola Xoom (image from cnet)

While touchscreen interfaces can be extremely useful, and should certainly be featured in devices such as tablet computers and cell phones, I think that the designers of these products must be careful not to forget the utility of physical buttons.  In some situations, the absence of a physical button is not a big deal.  Losing a physical button to change from one song to another on an mp3 player is not really a problem when you can more easily select the songs via a touchscreen interface.

On the other hand, there are some situations where I think that manufacturers get rid of physical buttons in a gimmicky way that takes away more from the product than it adds.  Take, for example, the iPod Nano.  The iPod nano now has no physical buttons for controlling music playback; rather, it is controlled via a touchscreen interface.  Apple markets the Nano as a device that runners will use to listen to music on while they run.  However, if you want to change a song while you run, or pause your iPod, there are no physical buttons that you can quickly tap.  Rather, you need to press a button on the touch screen, which will almost always require looking at the screen and pressing the button.  With a tiny screen, if you are running at a reasonable pace, you are likely going to have to slow down or stop to see what you are doing.  The iPod Nano also has a feature that allows the user to draw “gestures” on the screen to change to different features on the iPod, such as changing from viewing artists to viewing album titles.  Unfortunately, this means that if you are running, and you are trying to press the button to “pause” the music, you might accidentally send yourself into some other screen you don’t want to be in, making it even harder to pause the song you’re listening to.

The iPod Nano (image from Apple)

Another example of poor use of touchscreen-like technology is the Garmin Forerunner 405.  The Forerunner 405 is a GPS running watch.  The 405 is one of a series of Forerunner watch models that records distance and pace run.  However, unlike most of the Forerunner models, many of the Forerunner 405′s in-run controls are accessible not by physical buttons, but by a touchscreen bezel that surrounds the face of watch.  The bezel is like the earlier models of the iPod; you run your finger along it to highlight different options, and then press a physical button to choose the option.  While using a bezel is fine for sitting around on the couch, it’s a pain in the butt to do while you run.  Additionally, some have reported that the Forerunner 405′s bezel does not react well to sweat.  And, well, sweat and running go together like cherries and cherry pie.

The Garmin Forerunner 405 (image from Garmin)

The iPod Nano and the Garmin Forerunner 405 are two examples of where touchscreen and touchscreen-like technology can become a bit gimmicky instead of useful.  To an extent, I see designers thinking of how many “features” they can list on a bullet-point list of product features, as opposed to actually considering what their product is going to be used for, and which features will aid that use.

Will the loss of the home button on the iPad and iPhone be a net gain?  It’s hard to say.  I think that, on the plus side, getting rid of the home button will decrease wasted space on the iPhone and iPad, allowing the screen to cover nearly the entire front of the device.   This could either mean a larger screen or a smaller device.  On the other hand, the loss of the home button takes away a user’s no-questions-asked, get-me-out-of-here button.  If an application slows to a crawl due to a system bug or crash, thus slowing the entire operating system, a user cannot simply press the home button and know that the “quit” command has been transmitted to the operating system.  Instead, the user will have to rely on gestures that he or she will need to draw on the screen, and may not be registered if the device is lethargic and unresponsive.  Moreover, users with little experience at using the operating system will have no button to fall back on when they cannot remember how to do the gesture they need to return to the home screen.  Additionally, if Apple really wants to implement gestures that can allow users to switch applications or return to the home screen without pressing any buttons, Apple can do so while still leaving the home screen button as a “last resort.”

In sum, if Apple is indeed ridding the iPad and iPhone of the home screen button, that choice underscores a trend of many electronics-makers to move toward touch screen interfaces.  While Apple’s rumored choice may turn out to be a net positive, it also could be yet another example of an electronics designer swapping physical buttons for touchscreens as a gimmick.  We’ll see what happens.

For example, every time you use a credit card, unlike a debit card, it costs the merchant you are purchasing from an “interchange fee.”  These interchange fees can add up for the merchant over time.  In fact, credit card issuers were recently hit with an antitrust suit by the DoJ which might change the way these interchange fees work.

Because of these interchange fees, one might want to support a particular merchant by purchasing from them using cash or a debit card to save them money.  One also might feel morally opposed to charging merchants extra for providing the same service to you.  I think these are legitimate reasons to avoid using a credit card.

There are other, legitimate reasons to choose not to use a credit card.  The above is just an example.