Archer Memo

Posted in Uncategorized on September 22nd, 2010 by bl1y

If you’re a 1L at NYU School of Law, you should be having the Archer project coming up (unless they’ve changed the curriculum since I was there).  If you find yourself having trouble with the research, or struggling to put your memo together, you’re in luck!  I wrote the book on Archer.  Literally.

Well, kinda.

I worked as a research assistant and did a major rewrite of the “bench memo” (aka: teachers’ edition) and still have my copy.

I won’t just give you my copy of the memo.  After all, I may need to hire one of you some day, and I’d prefer to you learned the basics of legal research and writing.  But, I also know that many professors phone it in and don’t give much guidance, and that’s not going to result in a skilled lawyer either.

I’m not going to do the work for you, but if you need help, I don’t really have anything else better to do with my time.  Either post your questions in the comments, or send them to nycbl1y@gmail.com and I’ll do my best to make your first semester suck a little less.

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Reason Not to Go to Fucking NYU #1

Posted in Reasons Not to Go to Law School on June 4th, 2010 by bl1y

On or about April 17th I sent a request to the NYU records office to have them mail a degree certification form to the Alabama State Bar.  It took them until yesterday to mail it.

On Wednesday the Alabama Bar sent me a notice that I had until next Saturday to get the certificate in.  Final deadline.  No fucking around.  Miss it and I get to apply for the February 2011 bar exam.

Mother fucking NYU, you dirty fucking whores.

[Also, NYU is over priced and doesn't teach you anything, and Peggy Cooper Davis has publicly lied about the contents and quality of the NYU Lawyering Program.]

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ICWA Tip: Southwest Voter Registration Educ. Project v. Shelly

Posted in Uncategorized on March 23rd, 2010 by bl1y

Time again to help out the tired, poor, huddled masses in the NYU Lawyering program.

If you’re having trouble with the substantial likelihood of success section of your memo, check out Southwest Voter Registration Educ. Project v. Shelly, 344 F.3d 914 (9th Cir. 2003).

In a nutshell, plaintiffs argue that the alleged disparate impact of punch-card ballots on minority voters violated Section 2 of the Act, 42 U.S.C. § 1973. Plaintiffs allege that minority voters disproportionately reside in punch-card counties and that, even within those counties, punch-card machines discard minority votes at a higher rate. To establish a Section 2 violation, plaintiffs need only demonstrate “a causal connection between the challenged voting practice and [a] prohibited discriminatory result.” Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 586, 595 (9th Cir.1997) (internal quotation marks omitted). There is significant dispute in the record, however, as to the degree and significance of the disparity. Thus, although plaintiffs have shown a possibility of success on the merits, we cannot say that at this stage they have shown a strong likelihood.

Here we basically have a discussion where success on the merits would have been pretty easy.  Plaintiff only needed to show a casual connection between voting practice and a discriminatory result, which they seemed to have evidence of.  However, “significant dispute” in the record was enough to take the plaintiffs down to a mere possibility of success, not a strong likelihood.

This should be a sort of no-brainer for the State.  Just make a good faith showing that you have some reasonably chance of winning on the merits and this precedent will take you far.  As for the Tribe, I don’t know.  Just be prepared for another hurdle.

Go State! Beat Tribe!

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ICWA FML FTW

Posted in Uncategorized on March 10th, 2010 by bl1y

Since posting my offer to help NYU students with their ICWA assignments just 6 days ago, I’ve already had 4 students e-mail me asking for help.  Over 20 people have come across my site while specifically looking for help with the assignment.  (I can tell they didn’t stumble upon while doing regular research, because the searches contain terms like “NYU” and “memo.”)

I imagine in the next few weeks, I’ll be getting some more requests for help, so I’m going to go ahead and post some of the general advice here.  When you kids are further along in your writing, feel free to send me a draft of your brief and I’ll look over it and get back to you.  And, you can always just e-mail me questions if you have an issue that I didn’t address here.

If you’re wondering about my qualifications to give you advice, you’re on the wrong train of thought.  You can get my advice and then exercise your own judgment.  If you mindlessly follow whatever I say, you’re a moron.  But, having said that, I wrote a substantial section of one of the “model answers” for one of the larger lawyering projects (I won’t say which one, because that could jeopardize my anonymity).  And on top of that, I’ve been through the damn ICWA exercise, and won…as the mother-freaking Tribe.  Also, I’m collecting old briefs from some of my classmates, and stitching together a master brief, so you’re getting more than just my experience.

How to Structure The Damn Thing

Factual Background

First, give a really short introduction so the reader has some context.  Then, give a bit of the history leading up to ICWA.  Finally, give the specific facts for this case; explain who is moving for what and why.

Legal Standard

State the four parts of a preliminary injunction.

Analysis

One by one, explain how the facts relate to each of the preliminary injunction requirements.  Even though this is a hearing before a judge, the question is largely a factual one, so think more in terms of the factual argument you would present to a jury.

Whenever possible, add in relevant precedent.  There are basically two types.  The first gives legal standards.  If a court has defined what “irreparable harm” means, state it.

The second type of precedent is factual.  Look for cases where the party on the opposite side from your should have won, but lost.  Then argue that if the party lost in that case, your opponent must lose in this one.

For example, if you’re the state and there is a case where a party moving for a preliminary injunction said that if the injunction isn’t granted a bomb will blow them up, and the court didn’t think that was irreparable, then there’s no way the harm the tribe is claiming is irreparable.

Conclusion

This is probably the least important part of the memo, it just makes things fit together.  If you’re the tribe, argue that you met all four requirements.  If you’re the state argue that the tribe failed all four requirements, and that they only need to fail one.

State Strategy

The state has two basic themes it wants to run with: burden of proof, and best interests of the child.

The tribe is the moving party, the burden of proof is on them, and if they fail on just one of the preliminary injunction requirements, the whole thing fails.  Play to those strict rules as much as possible.

Also, harp upon how the state is protecting the best interests of the child, while the tribe is fighting for the best interests of the tribe.  The better this argument is, the more likely the judge is to find the tribe failed to meet its burden of proof.

Tribe Strategy

The tribe’s strategy revolves around best interests of the child, and the status quo.

The tribe has to rely on the poor track record the state has in how it treats Indian children.  Use this to undercut the state’s claim that it is acting in the best interests of the child.  Paint them as bumbling government bureaucrats, wrecking lives just to follow a misguided law.

Then, argue the status quo.  Even though you are moving for a preliminary injunction, what you’re really arguing is that everything stay where it is until trial.  The state is the party trying to get its way before the hearing.  This argument is completely bogus legally, it does not at all change the legal burdens on the tribe.  But, it should soften the judge and make him more likely to find you’ve met your burden.

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ICWA FML

Posted in Uncategorized on March 4th, 2010 by bl1y

[Update: Go here for my revised ICWA help.]

It’s ICWA time again at NYU School of Law.  ICWA is the Indian Child Welfare Act, which is the main statute involved in the NYU lawyering program’s largest project of the year, a brief on a pre-trial motion along with an oral argument before a judge or attorney playing a judge.

I was reminded that it’s that time of year again when I looked at the search engine queries that have brought people to this site.  A search for “icwa nyu” is almost certainly from someone trying to find a lawyering program alumnus who has posted their old memo or other useful information.

If that’s you and you’d like some help, simply e-mail me at nycbl1y@gmail.com and I’ll be more than happy to give some advice.  I promise not to turn you in, and you can create a gmail account with a fake name if you’re worried.  It’s been a while since I did the ICWA project, but there are some things I remember learning from my judge that were incredibly important, and which my lawyering professor never mentioned or even appeared aware of.

Think this is cheating?  Meh.  Lawyering is ungraded, so your doing better does not hurt anyone else.  I’m not going to write your memo for you, I’m just going to give you tips that will help you write a better memo.  Basically, all you’re doing is learning how to be a more effective advocate, which is exactly what lawyering is supposed to teach you.

[Earlier: Check out this hilarious e-mail exchange between a lawyering teaching assistant and two students about how the class wasn't giving ICWA or lawyering the kind of respect they deserve.]

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Reason Not to Go to Law School #28

Posted in Reasons Not to Go to Law School on February 4th, 2010 by bl1y

Weird professors.

In addition to being lazy, ignorant, boring, and ripping you off, your law professors are downright weird sometimes.  I was digging around my old law school e-mail account looking for something else and stumbled upon these two messages I’d completely forgotten about.  I’ve edited some of the identifying information, but here’s the messages:

Subject: Urgent research request

Hi BL1Y,

Can you do a small research project this afternoon or tonite?
It involves finding ethical rules on 3 discrete topics.
If you can, please call my colleague Phil Goldman ASAP and leave him a message.
xxx-xxx-xxxx.
Leave him a number to reach you, I don’t have one.

Thank you.

Becky

Nevermind that Becky was my lawyering professor and had contact information from the entire class, so she did indeed have my cell phone number.  A few minutes later I got an e-mail from Phil, giving his cell phone number.  I guess he really needed me to get ahold of him right away and wasn’t going to be in his office.

Subject: Re: Urgent research request

Better yet.  Call me at xxx-xxx-xxxx

Phil Goldman

Anyone who’s worked in a law firm knows that lawyers have a pretty liberal understanding of what “urgent” means.  Law firm urgent usually deals with a partner having forgotten to give you an assignment with a deadline that’s fast approaching, or a client giving the partner an unreasonable demand and instead of the partner talking sense into the client, he just passes the buck to you.

But what the hell is urgent for a law professor?  Their biggest responsibility is grading exams, and I had two professors get their grades out late, so they don’t take it that seriously.  And Goldman was an assistant professor teaching Lawyering, so he didn’t have anything to grade, and didn’t have the publication duties of the regular, full time professors.

Perhaps he went above and beyond the responsibilities of his job (ha) and wrote a paper anyways, hoping to gain a better reputation and move up the academic ladder, and he needed some last minute research for a paper that was about to be published.  But, his current faculty profile doesn’t list any published work, and he specializes in immigration law, not ethics.

So why would an assistant professor need “urgent” research done on legal ethics?

I never found out.  By the time I got ahold of him, the issue was, I suppose, already resolved.  I got one of those vague “don’t worry about it” responses.  So, here’s what I figure happened:

Professor Goldman had some sort of ethics SNAFU, such as trading grades for sex.  But, not your typical quid pro quo, that’s too dangerous.  What you do is find another professor who can hook you up with one of his students, and he’ll inflate her grade, while you reciprocate by sending him one of your students and you fix her grade.

Or maybe he’d just been caught plagiarizing, who knows.  The thing is, since he wanted me to call his cell phone, he wasn’t going to be in his office, which is where most professors do their academic work.  Asking me to call his cell meant that this was more likely a personal problem.

And, like any prototypical American with minimal legal knowledge, he probably thought that the best way to deal with any sort of problem was to get incredibly lawyerly, research a bunch of laws, and throw statutes at your opponent.  But, being an assistant professor, his research skills were obviously sub par.  (Four years later, he’s still a mere assistant professor, and at a less prestigious school.)  So, he turns to a research assistant hoping I can bail him out.

Then, he realizes it might be awkward asking a student to look into whether it violates school policy to hide a dead hooker in the school’s coat check room during the summer when it’s not being used.  So, he tells me there’s nothing to worry about.

Pure conjecture, but it sounds pretty reasonable to me.

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Reason Not to Go to Law School #25

Posted in Reasons Not to Go to Law School on February 3rd, 2010 by bl1y

Asshole Teaching Assistants.

I want to start by saying not all teaching assistants are assholes.  I was a teaching assistant during my senior year of undergrad and like to think I did a pretty decent job.  Many teaching assistants recognize that they are only a few semesters removed from the class they are teaching and approach their position with the appropriate level of humility.

Not quite the case with law school teaching assistants.  Law schools are overrun with massive egos, and so getting good grades, a fat job offer, and a TAship tends to make 3L students think they’re the shit.  They’re not.  They’re simply the biggest tools in the school.

Their entire exposure to legal practice has been a 10 week summer associate gig which typically involves more 2-hour lunches and firm sponsored outings than actual legal research and writing.  And yet, they do a lot of the heavy lifting in legal research and writing classes, or as some schools have begun calling it, “Lawyering” (because they try to add in other lawyerly skills, like bullshitting and complaining about crappy assignments).

So, to demonstrate just how awful the asshole TAs can be, here’s an e-mail that was sent from one of my lawyering TAs to the entire class (but not the professor):

Hey everybody,

After being in class with you all again, I have to say that I was a tad under impressed with the class participation and focus.  More than a few of you were pretty squirrelly today.  I know that Lawyering seems to be less important than your other classes, but this summer you’ll be reassessing those impressions.  I think you’ll realize that writing a memo that is more than simply passable and explaining the law are important assets that you may wish you had developed more.

The ICWA project is a big project and requires serious effort and planning if you are to be satisfied with your product.  It culminates in a real challenge in the form of an oral argument before a judge or practicing attorney.  You will need to know the material as if you’ve lived with it your whole life and you will need to be able to explain it and put it in context so that judges will quickly understand both the situation and your key arguments.  Since there are a lot of materials, it is also important to listen to your classmates’ presentations.  If you don’t, you’ll be doing a lot more research on your own.

The small group atmosphere of Lawyering is designed to allow each person’s voice to be heard, but this isn’t home room.  So whether it’s spring time itches or leftover undergrad energy, please settle down and put some effort into this project.

Matt

Okay, I know this sounds like a fairly reasonable request to just simmer down, even if Matt (and that is his real name) did go about making it in a somewhat silly way.  But, so you can get a better idea of how out of place this e-mail is, here are two of the responses he was sent:

I agree with the substance of everything that was just said. I wanted to add a note:

Universally, during Orientation, the advice given by 2Ls regarding Lawyering was “it’s pass/fail, and should be treated that way.” I could never have understood, then, how astoundingly correct that assessment was.

The last time I received written feedback on a piece of writing submitted to the Lawyering program was on Dec. 19, two and a half months ago. That, itself, was a cursory set of highly abbreviated comments to a piece of writing (the Archer memo) which had been submitted over five weeks prior. To keep this in perspective, it took almost exactly the same amount of time to read and grade over 100 full-length exams. (Lawyering has a fraction of the students, no grades, and a professor without the publication pressure faced by others.) Was an explanation given for this massive delay? No, of course it was not.

Meanwhile, the class as a whole must endure constant back-handed remarks like “some of you have come a long way.” Exhortations are made to “teach each other” the material, which is attractive when you consider the alternatives, but when folks today attempted to do anything more than recite what was in the printed materials, they were quickly hushed.

We are berated for being delayed a minute or two on the subway even as the exercises have their schedules changed over and over. Materials distributed to the class contain basic errors in typography. The first semester featured what we now know are basic conceptual misunderstandings about tort theory, which have been joined in the second semester by similar errors in civil procedure. I realize it’s not a torts class or a course in civ pro, but it seems that an “atmosphere of professionalism” is best fostered by instructors not holding forth on topics of which they are ignorant.

The worst of it is that this occurs against a backdrop of other students who have valuable, useful Legal Writing/Lawyering classes, at this law school and others. A good friend of mine is a 1L at Fordham, and comparing our experiences has been like night and day. While we are forced to waste our time hearing about the “Narrative of § 1983,” there are people in the world who are actually learning how to research and write, all of whom now enjoy a tremendous advantage over those of us whose primary skill appears to be regular deployment of the phrase “contextual dynamics.” A large portion of the mediation exercise consisted of one paid actor talking to another paid actor.

None of this is personal (unlike remarks about “leftover undergrad energy”). If we seem not to take Lawyering seriously, blame NYU for admitting a group of students smart enough to understand that no one else is taking it seriously, either.

Ike

And, from another student in the class:

Matt,

Thanks for your note. I appreciate your effort to help us, but I think you’re being a little unfair.

Lawyering is pass-fail. Because there’s no measure of how well a student performs that is readily available to employers, students necessarily approach the class with different levels of commitment. (Is a student who’s serious about getting a good job really going to use an unedited Lawyering assignment as a writing sample?)

Your point, which I mostly agree with, is that there is intrinsic pedagogical value to the exercises and that we should therefore work hard on them. But other people have different perceptions of the program’s value. Who are you or I to say that working hard on a memo is more important than studying for a graded class, watching T.V., or going to a bar? If you think it’s important that everyone take Lawyering as seriously as you did, lobby the administration to change the incentives the program creates. Make the class graded, award a prize for the best brief, whatever—but don’t fault students for responding rationally to the message the law school sends by making Lawyering pass-fail.

Moreover, we waste so much time in class that it’s unreasonable to demand serious discussion all of a sudden just because you think a particular exercise is important. Becky comes to class unprepared. The program as a whole systemically focuses on soft issues like “contextual dynamics” and the unattainability of objective truth instead of basic skills that translate into better legal research and writing. Against this background, many students have an expectation that class time will be unproductive; they see coming to class as an at-times amusing chore. You say we’ve turned a corner, that all of a sudden we’re doing work that matters. Maybe so, but could we have advance notice? What does that say about the value of the previous six months?

Lastly, I take issue with your tone. Calling students squirrels, accusing them of suffering from “spring time itches” and having “leftover undergrad energy” is inconsistent with the “atmosphere of professionalism and respect in all Lawyering classes and activities” that the program requires of both students and faculty. I know that you bring important real world know-how to the class, but many of us worked in demanding professions before enrolling in law school. Playing schoolmarm is no way to express your frustration that other people don’t value Lawyering as highly as you do.

Yours,

Dennis

I think those e-mails pretty much make the case for me, so I’m not really going to say much else.  These are the exact e-mails as they were sent, except that I changed the names of the two students who sent them.  The professor and TA names are their real names.

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