the imbroglio

Ed. note: This is an entry I wrote last week while I didn’t have an internet connection. I’m posting it now because. . . why not?

I attended my first Bar/Bri bar review lecture yesterday and, despite being tired, I was delighted to hear Erwin Chemerinsky wax poetic on the subject of constitutional law.

I tried taking notes by hand and for the first hour I didn’t have the handout that included most of Chemerinsky’s outline so I was writing like a fiend. By the time the session was over, I was getting tingling in my hand and had to keep stretching my arm to keep the circulation flowing. Yes, I must be getting old, but I’m trying to train myself for all the handwriting on the actual exam. Why oh why can’t they allow us to at least write the essays on computers!?

Because I missed the first two sessions of this 27-session “course” I only heard the second half of Chemerinsky’s two-day show, but I caught a few zingers, including:

• Regarding Roth v. Board of Regents, a Wisconsin case that illustrates the rule that the government must provide due process before it deprives a person of an entitlement only when that person reasonably expects to continue receiving. Roth was on a year-to-year contract that expired and was not renewed. However, because it was a year-to-year contract and it had run it’s designated course, Roth had no reasonable expectation that it would be renewed for another year. “Though the gripes of Roth were great…” Chemerinsky said, Roth lost.
• On the subject of gender discrimination: “Do you know how to tell the difference between a boy chromosome and a girl chromosome? You have to pull down their genes.”
• Talking about first amendment laws of prior restraint and specifically gag orders to prevent prejudicial pretrial publicity (such orders are never constitutional): “Did any of you ever see Kato Kailin from the OJ Simpson trial? Wasn’t he proof that Gilligan and Ginger really did sleep together?”
• A good way to remember that the gov’t is allowed to use zoning ordinances to regulate the location of adult bookstores and movie theaters: “Erogenous zoning is permissible.”
• If you want to remember the three-part test for when the gov’t violates the establishment clause (the clause that says the gov’t may make no law respecting the establishment of religion), try SEX: the law must have a Secular purpose, its Effect can’t be to advance or prohibit religion, and it must not create eXcessive government entanglement with religion.

There were probably more but those are all I could get down. How many years do you think he’s used each of those jokes?

Aside from the jokes, the lecture was mostly review. However, I did learn two things that really surprised me:

1. It’s not surprising that the right to travel is a fundamental right and is therefore protected by strict scrutiny. What is surprising is that restrictions on foreign travel need meet only rational basis review. The SCOTUS has said we have no fundamental right to international travel. Isn’t that just another way of saying our government is allowed to hold us as prisoners w/in U.S. borders? How is that justified? What’s the rationale?¹
2. First amendment law: The gov’t does not violate freedom of speech when it prohibits attorneys from soliciting clients in person for profit. However, the gov’t does violate the first amendment when it tries to prohibit accountants from doing the same thing. Why? Because lawyers are trained to persuade people to do or think certain things, but accountants are trained to tell the truth so there’s less risk the accountants are going to trick prospective clients during an in-person solicitation. In other words, the court said that lawyers are big fat liars and cheats, but accountants aren’t. Awesome.²

[tags]barbri, conlaw, gripes, jokes[/tags]

1. See, this is why bar review is stupid. I’m just supposed to learn this little factoid and I’m not supposed to worry about where it came from or why it is the way it is. This will help protect the public how? This will help me be a better lawyer how? ↩
2. No, I don’t know what case that was from. Again, bar review and the bar exam are apparently not about really understanding or even learning; they’re about memorization and regurgitation.↩