June 2014


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We finished our exams with Tort on Wednesday. Since then we have been flat out on a Tort’s assignment due this coming Thursday.

The striking thing about Tort law is just how unprincipled it actually is. Policy…or judicial lawmaking is at its most apparent, and it is everywhere through the decisions. Reading the fact patterns through the cases, and the legal tests applied by the judges…it is borderline incoherent.

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California

Giving away my age here, but I was there when the whole skateboard thing first happened. Actually my brother was more into it than I was but… The picture looks so much like a school that I went to, that I have posted the picture

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Fly Buy: $CHK, $BID, $OZM, $GILD
Mon Jun 23, 2014 3:31pm 3
As part of a long term portfolio, I bought CHK, BID, OZM and GILD. The timing of the purchases are immaterial to me, as I intend to hold them for at least 5 year

gild

I had a quick squizzy at his selections. This stock would make me nervous buying it on this chart structure. I’ll keep an eye on this one. Five years….hmmmm.

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1403341496559422595789

Pretty much everything is higher. The market continues under easy money to frustrate the bears. Without a doubt the difficulty has been to stay long through the bottom in March 2009 despite the bad news and tepid earnings etc. Particularly when you are constantly inundated with similar charts on a regular basis.

High-Low-Breadth-Ratio

Staying the course, ie, long, is difficult when every couple of weeks, short-term something flashes a sell signal. This obviously is not a sell everything and go short…rather, take profits and look to re-enter lower. A neat trick if you can do it on a regular and accurate basis.

NYSE-Margin-Debt

Add this chart to your analysis and you are starting to get itchy to sell before you lose all your profits. It is true that to really make money in the market you need to use your initial stake and the market’s money…profits, to compound your returns. To do so, you must sell for a profit and re-invest [buy low] to sell higher in the future. Hence the hand-wringing.

I have been mostly selling winners and rotating into unloved sectors. I’ll have a little list of some swaps I completed today.

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We had our Property Law exam yesterday.

What came to my attention was the notable absence of a particular student. This student in class is sub-standard. Yet, somehow in exams, his results are far better than one would expect.

Like most universities, ours practices a policy of additional help for those suffering from cognitive disorders and possibly serious disabilities, where actual writing, reading, etc are impaired.

This particular chap has applied to take his exams under this disability policy. His disability you ask? Crohn’s Disease. What exactly is Crohn’s? Essentially it is an ulcerative colitis that can occur anywhere along the gastrointestinal tract.

In most, it is quiescent. If it is symptomatic, there are a number of external physical symptoms that indicate its activity: migratory arthritis, inflammatory disorders of the skin, eye and mucous membranes. Needless to say, this chap has presented with robust good health…until exam day.

So what advantage is provided? Quite a significant one. For every hour of exam, you receive an extra 20mins. In a three hour exam, that is an extra hour.

The point here is that in a law exam, that is the exact area of pressure. The information and questions are designed that you have little to no thinking time. No time to go back to unfinished questions. It is a flat out race against the clock. You have to deliver structure and content in one take at a very fast pace.

The largest problem encountered by students is not being able to finish the paper due to being only able to write so fast. Then, in your mad rush to finish, grammar, spelling, structure, content are all heavily penalised for errors.

Thus extra time…confers a huge advantage. This is the second year that he has employed this strategy. I suppose he will use it all the way through. God help his clients if he does actually graduate, as this individual is simply not up to the task.

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Click on the link to watch US economy spending in real time.

retail-in-real-time

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Still doing exams. Contract and Judicial Review completed. Property and Tort to go.

On another note: picked up the Ducati last weekend. We’ve had shite weather, plus exams, so not much riding…but it is a lot faster than I expected it to be. Lots of vibration in higher revs.

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An article last month in The Harvard Crimson (“The Changing Face of the Law Professor”) explained that, fifty years ago, the typical Harvard Law School professor was someone who knew a little about the law but nothing about how it works:

“Somebody who got into a top law school, did very well and then completed a prestigious clerkship was well situated to be hired on the basis of those credentials,” said Law School professor Richard H. Fallon, who attended Yale Law School and clerked for U.S. Supreme Court Justice Lewis F. Powell.

These days, however, the typical Harvard Law professor is someone who knows a little about the law, a little about something else, and nothing about how either works in real life:

Now, however, the Law School looks for a greater breadth of academic qualifications in its prospective faculty, including “demonstrated scholarly accomplishment, a promising research agenda offering both relevance to legal analysis or law practice, and an ability to present and effectively defend a thesis or argument before faculty members,” according to Law School Dean Martha L. Minow.

Notice the elephant not in the room: a prospective faculty member does not need to show any ability whatsoever to practice law, nor any ability to effectively teach the law to students. They can get by with “scholarly achievement,” “a promising a research agenda … [relevant to] legal analysis,” and an ability to charm other faculty members.

Only legal education tolerates this sort of circular, self-referential pedagogy in a practical field. Doctors are trained by practicing physicians. Even “academic medicine” is closely tied to the actual practice of medicine by way of teaching hospitals and clinical research. Would you learn how to design and build cars from people who had never designed one before?

This isn’t a new issue (the impractical nature of legal education has naturally been the focus of intense legal scholarship, none of which produced any useful change), and Harvard Law’s approach is by no means unique to them. Law schools across the country have increasingly considered experience to be unnecessary. That’s not new.

What’s new is to see the law school that produces the most politicians, the most federal judges, the most law professors, and, with one of the largest graduating classes of any law school, a helluva lot of practicing lawyers, look out on the dismal field of legal instruction and then tout inexperience and non-legal scholarship as virtues. It’s a smack in the face to everyone who has tried to fix the problems with law school, and it creates two big problems, one for the quality of legal practice, the other for the health of our democracy.

A lawyer must be an autodidact. They must teach themselves about the client’s situation, and then teach themselves (or at least refresh themselves) on the law that could bear on that situation; only then can they begin to effectively represent the client.

One response is to decide, as HLS has, that it will “focus less on stuffing our students[’] heads completely full with what the doctrine in different areas of law looks like,” and then “turn[ ] to tools from other disciplines, including economics, history, literature, political science, psychology, and statistics.” (Those quotes come from Professor Geiner and Dean Minow.)

This approach has superficial appeal. A common cliche is to say law school teaches students “how to think like lawyers,” so, instead of making them memorize a bunch of legal rules, why not expand their minds with the teachings of various theories?

The problem with this Malcolm Gladwell approach to law — i.e., leaving the details and substance to others while you cherry-pick broad concepts that suit your preferred conclusions — is that it misses the essence of what lawyers do. No practicing attorney claims that the practice of law revolves around the memorization of doctrine. The practice of law is about the application of doctrine to the facts at hand.

If you want to learn how to paint, to “think like a painter,” you can spend years looking at paintings and reading about paintings and studying everything from architecture to optics to cognitive science, but there is no substitute for picking up the brush, and no substitute for the guidance of a painter who has painted a thousand canvases.

If you need surgery, you want the doctors around you to be learned and thoughtful and open to new ideas from other fields, but there is no substitute for the surgeon who has done your procedure a hundred times before, and no substitute for the surgeon who did it a thousand times before and then trained your surgeon.

When legal scholarship and legal instruction moves even farther away from the practice of the law, it loses the essence of legal practice: mastering the application of ambiguous legal doctrine to complex factual situations. The effective application of the law to facts — and the ability to persuade others to apply the law that way — cannot be a mere after-thought new lawyers are expected to fit into the half-baked, Malcolm Gladwell-esque understanding of “economics, history, literature, political science, psychology, and statistics” they’ll get in a class or two at HLS. It is what they will do throughout their careers.

This would just be a problem for HLS and its graduates as they enter the world with a wholly erroneous understanding of how to think like lawyers, but Harvard is no ordinary law school. Harvard could forego legal instruction entirely and become a finishing school and, due to its position, still attract many of the best and the brightest, who will then go on to take important positions in our society. HLS’s elite position makes its defective academic focus a problem for society beyond its Bauhaus-inspired, ivy-covered walls (not that there’s much ivy on the law school campus; my wife is an alum and so I spent a lot of time there).

If this is the future direction of legal education, then we should have less of it. Most of the calls for reducing law school from three to two years focus on its high cost and graduates’ dismal job prospects. With elite law schools, though, even if a graduate is more likely to secure a lucrative job, each year in which the student is taught to elevate superficial insights from other fields over the application of law is at least counterproductive, if not outright harmful.

Now I have no idea if this applies to my particular law school, but after preparing real cases, it certainly feels a bit that way.

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Managing partners have warned that the nation’s law schools are producing a glut of graduates who are chasing a diminishing number of jobs.

The difficulty confronting law graduates has been exacerbated by the growing competitive pressure on the largest firms that have traditionally been the one of the main sources of legal employment.

“The biggest firms are under enormous pressure to slim down, in some cases shedding upwards of 50 partners over two years,” said Henry Davis York managing partner Sharon Cook.

“I would say this is the toughest market for a summer clerk or graduate in more than 30 years.”

Large numbers of talented lawyers were being pushed on to the job market and established firms were fighting for business against new entrants.

The market for legal services had become “incredibly competitive” and clients were starting to recognise there were better value alternatives, Ms Cook said.

Her assessment is in line with that of John Poulsen, managing partner of Squire Sanders, who said no room was being made for the next generation of graduates.

“The problem is that there are too many law schools churning out graduates for too few positions,” Mr Poulsen said.

“The paradigm seems to be this exponential growth theory, that there should be an infinite supply of lawyers because the demand for their services will somehow be infinite.

“Obviously that just hasn’t been the case. There were 500 applicants for about 80 positions in Western Australia this year.”

There are 35 law schools currently operating around the nation, with a 36th opening in Western Australia’s Curtin University this year.

In Victoria alone, about 1300 law graduates are expected to attempt to enter practice this year, rising to 2500 a year by 2018, according to estimates by the state Law Institute.

The usual migration of young lawyers to industry hubs in New York, London and Hong Kong has slowed, which has had the effect of reducing the amount of low-level work available for recruits.

“The big firms certainly have less need for cannon-fodder,” said Squire Sanders’ Mr Poulsen.

The glut is worse in the US with more than half of all US law schools cutting their intake over the past two years.

“It’s a new world for lawyers,” said Chris Lovell, national managing partner of Holding Redlich.

“The big firms are not busy, they’re quiet. Mergers and acquisitions, financing, these are their staples. But there is just simply less of it going on.”

He said clients were more discerning in lean times and this meant the ability of the big firms to charge for the work of graduates was diminishing.

Penny Carruthers, co-ordinator of the University of Western Australia’s postgraduate law program, said law schools were competing to differentiate their students in an increasingly tight job market.

“Law has been a very good degree to have vocationally and I think that’s generally still the case,” she said.

“But you get the double-whammy, so-to-speak, of economic factors impacting on firms and a big batch of students all hoping to enter the field.”

She said the recent shift to the American model of postgraduate law studies – the Juris Doctor degree – would offer students a competitive advantage.

Craig Slater, president of the WA Law Society, said that while more law graduates were being absorbed by government, business and banking, predictions of a “looming disaster” for the legal profession had not been borne out.

“Law is one of those glamourised industries and people go in with certain expectations. Sometimes it’s just smart people taking the opportunity offered by good grades and they find that it doesn’t quite offer the career they wanted,” Mr Slater said.

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Sell.

mndo

Buy.

etfc

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