Fictional Attorney of the Month: Matt Murdock

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Matt Murdock is a typical New Yorker, until he's blinded by a radioactive substance falling from a car as he saves a man from an oncoming truck. He develops supernatural senses and sonar. He crusades under the name Daredevil, or the Man Without Fear.

Murdock attended Columbia Law School. He and longtime friend Franklin "Foggy" Nelson founded Nelson & Murdock, a small law firm dedicated to serving the public--and, of course, Daredevil might act where the law could not reach.

The "Trial of the Century" story is one of the most significant story arcs involving attorneys in comic books. Hector Ayala, the White Tiger, is found at a crime scene where he unsuccessfully fought some gang members and is left with a dead police officer at his feet. The White Tiger is innocent; Murdock takes the case; and a lengthy courtroom battle, including evidence objections and witness examination, highlights the story.

California bar exam takers are far more able than others nationwide but fail at much higher rates

The California July 2015 bar results were recently released, reflecting a modest drop in scores, slightly less than other jurisdictions this year. The overall pass rate dropped from 48.6% in July 2014 to 46.6%. The first-time pass rate dropped from 61% to 60%. And among California ABA-accredited schools, the first time rate also dropped a point to 68%.

California is one of the rare jurisdictions that also discloses its statewide mean scaled MBE score. The NCBE discloses the nationwide mean scaled MBE score, which has dropped fairly significantly over the last couple of years. But California has consistently outperformed the nationwide cohort, sometimes rather dramatically.

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California's mean scaled MBE score was 142.4 this July, 2.5 points higher than the nationwide average of 139.9. In fact, it's even 0.9 points higher than last year's nationwide average.

The performance of California bar takers is even more impressive given that over 8000 people typically take the July bar among the 50,000 or so nationwide MBE bar exam test-takers. Despite representing over 15% of MBE test-takers, California significantly outperforms the national average.

Pennsylvania (142.2) and Tennessee (139.8) posted lower mean scaled MBE scores. But their pass rates are dramatically higher than California's--71.2% and 64.5%, compared to California's 46.6% in July 2015.

Connecticut and Georgia also disclose the mean scaled MBE scores on a school-by-school basis. I plotted those schools with the California, Pennsylvania, and Tennessee overall results to illustrate how dramatic an outlier California is.

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California's high cut score means that many test-takers who would pass the bar in another jurisdiction fail the California bar. Indeed, if the California cut score were closer to Georgia, Pennsylvania, or Tennessee, then the overall pass rate would be around 72%. (It might be even higher in Connecticut.) Indeed, about half of those who failed the California bar in July 2015 would have passed in another jurisdiction.

What the "right" cut score should be is something else. And how the essays bear upon the MBE score. And whether these few states are sufficiently representative. But it's a somewhat useful illustration of some data to note that despite the very low pass rates in California, it's not for lack of relative quality of test-takers.

Who in New Hampshire gets to decide if Ted Cruz is a "natural-born citizen"?

Recently, the New Hampshire Ballot Law Commission announced that it would hear disputes regarding Ted Cruz's natural-born citizenship.

It should not hear such disputes, because the New Hampshire state legislature has not authorized it to hear them.

Mr. Cruz was born in Canada to a Cuban father and an American mother. (There is another challenge to Mr. Cruz as well as Marco Rubio, Bobby Jindal, and Rick Santorum, all alleging citizenship-based complaints about their eligibility.) The challenges will be heard November 24.

These kinds of challenges are nothing new. Indeed, I highlighted them recently on this blog, citing my recent Indiana Law Journal article, Scrutinizing Federal Electoral Qualifications.

But let's set aside the merits for a moment (even though a very strong case is to be made that, on the merits, Mr. Cruz is a "natural-born citizen"). Instead, who in New Hampshire gets to decide this question? That's the basis of my Indiana Law Journal piece. And there are at least three groups of people who get to decide, at the primary level and beyond.

Voters. That's right! The people get to vote for their preferred candidates, and they are welcome to reject a candidate whom they believe is not eligible for federal office. (Undoubtedly, some voters refused to vote for Barack Obama because they believed he was not eligible for office--but, I assume they had other reasons for refusing to vote for him, too.)

Presidential electors. In presidential elections, the ballots cast are actually for slates of presidential electors. They are often pledged to support a particular candidate (and there is a complicating factor about whether a state can compel them to support that particular candidate--perhaps for another discussion). But they may abandon a candidate if they are convinced that candidate is ineligible. (Indeed, many electors abandoned their support of Horace Greeley for vice president in 1872 because he died before taking the electoral college met--and, arguably, a dead person is not eligible to obtain that office.)

Congress. At the end of the process, when the electors have cast their votes, it's possible (but disputed) that Congress can reject the votes of the electors if Congress independently concludes that a candidate is ineligible. (Indeed, this is precisely what the House did with votes cast for the late Horace Greeley.)

But what role do the states have? Or, specifically, what role does the state of New Hampshire have in establishing rules for ballot access that refer to qualifications?

My article argues that state legislatures do possess some power to control how the decisionmaking process occurs. The Constitution provides that electors are appointed "in such manner as the Legislature thereof may direct." There is good reason to think that the legislature--which could act as voter in this case--can condition the election of presidential electors upon its own preferences regarding federal qualifications and determinations of eligibility. (That's a lengthy, and somewhat controversial, component of the article.)

New Hampshire law does require candidates to sign a declaration under penalty of perjury that they are "qualified to be a candidate for president of the United states pursuant to . . . the United States Constitution, which states, 'No person except a natural born citizen . . . .'" (RSA 655:47(I).)

But who decides whether that person has committed perjury?

It isn't the Ballot Law Commission.

The jurisdiction of the Ballot Law Commission is described in RSA 665:6. In nomination paperwork cases, it extends to the nomination papers under RSA 655:37-44. But it has no jurisdiction over cases under RSA 655:47.

That's because the Secretary of State, not the Ballot Law Commission, holds the power under RSA 655:47. Consider RSA 655:47(III): "The decision of the secretary of state as to the regularity of declarations of candidacy filed under this section shall be final."

The state legislature, then, has decided that it wants an additional level of review of the qualifications of presidential candidates--beyond the voters, the electors, and Congress. And it wants that review performed by the Secretary of State. But the Ballot Law Commission is not that entity.

The conclusion of my paper emphasizes that courts, and state election bodies, must take great care in parsing their statutes to examine precisely who is supposed to decide what when it comes to evaluating the qualifications of presidential candidates. State legislatures are not obligated to provide an independent level of review of qualifications. But if they do choose to provide that review, how they do so should be carefully construed and respected.

Slopegraphs of recent Iowa caucus polling and results

Edward Tufte has a lovely page dedicated to the slopegraph, a simple and elegant visualization tool.

The Iowa caucuses are rapidly approaching, the first contest in a lengthy presidential preference primary season.

Ann Selzer is an extraordinarily talented pollster in Iowa. She regularly polls Iowa, and her final polls are extremely accurate.

For the last few presidential caucus cycles, she has polled every several weeks leading up to the caucus. I thought I would offer visualizations of recent contests of her polling in her penultimate poll, usually about 5 to 8 weeks out from the caucus, and the actual outcome. Polling data from 2004, 2008, and 2012 have been rounded, as have outcomes.

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(The polling outcomes do not necessarily correlate with the actual convention delegates awarded, but they simply reflect the percentage of votes each candidate received. The Democratic caucuses include special rules that permit several rounds of voting, and caucusgoers can change their support after each round. I exercised discretion in the order I listed candidates tied. I only included candidates who received some modest showing of support in either the penultimate polling or the caucus results.)

UPDATE: Someone helpfully altered me on Twitter that another poll was conduct in 2012 in late November. So the chart above reflects the antepenultimate poll rather than the penultimate poll.

NBC affiliates report Donald Trump appeared for on SNL 12 minutes, 5 seconds for equal time purposes

Last week, anticipating Donald Trump's appearance on Saturday Night Live, Babette Boliek and I wrote an opinion piece in the Wall Street Journal calling for an end to the equal time doctrine. Today, the NBC affiliates have begun filing their notices to comply with equal time. They are reporting that Trump appeared for 12 minutes, 5 seconds. Variety reflected that it appears Mr. Trump received so little airtime (relative to a typical host of the show) because of worries about the equal time doctrine and triggering free airtime for other candidates--precisely a worry Professor Boliek and I address in our piece.

What happens after a test-taker fails the bar on a first attempt? Some data from Texas

Michael Simkovic and Paul Horwitz have a few thoughts on passing, failing, and retaking the bar exam. I had a few things to add--though, I admit, less specifically about their issues identified!

First, I've blogged extensively about the decline in bar pass rates and the expectation that the declines will continue. A few caveats are in order. Much the top line data I use this cycle is based on overall pass rates; first-time test-taker rates are almost always higher, and first-time test-taker rates at ABA-accredited law schools higher still. But the data we have so far from most jurisdictions is limited to overall pass rates (though, some do disclose more specific information); when the more granular is released this spring, I'll discuss that, too. At the same time, the decline even in overall pass rates is a sign of the decline in overall graduate quality.

First-time pass rates are often the gold standard for a number of reasons. The first, perhaps to most school's chagrin, is the factor in U.S. News & World Report that evaluates a school's first-time pass rate in relation to the jurisdiction's overall rate. But importantly, of course, schools prefer bar pass rate success, and that's most easily identified with first-time pass rates. (Professors Simkovic and Horwitz have some more thoughts about the value or importance of those kinds of things, or about certain schools that are perhaps more vulnerable, which I'll reserve for the time being.) And, loan repayment is expected to begin shortly after graduation, which makes bar passage--and turning one's efforts toward a career is perhaps one of the most important things, particularly if one fails the bar and must take into account opportunity costs of taking time to retake or losing potential time and income in a legal career, or consider the sunk cost of legal education and a prior bar failure, or other such matters.

We have little data, however, about what happens once someone fails the bar exam. There are few longitudinal studies of a specific batch of test-takers. Many jurisdictions simply lump all "repeaters" in a single data set; those who indicate the number of the attempt don't indicate when the previous attempt took place.

But one intriguing study from Texas followed the July 2004 bar exam. The data sets aren't as intuitive as the visuals, so I've offered a couple of ways of interpreting what happened to the folks who took the July 2004 exam--and what happened to them over the next four administrations of the exam.

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The overwhelming majority of the 2293 first-time test takers passed on the first attempt. But what happened to the other 474? A majority of that remainder passed on subsequent attempts, but a number dropped out with each subsequent round. 62, for instance, never tried again after the first failed attempt. But 224 passed on the second time around. You can see from the graphic that several more dropped out with each subsequent attempt, until the fourth attempt had just 23 test-takers--and 13 of those passed on their fourth try.

Visualizing the outcomes by each administration offers the following perspective, a kind of narrowing filter:

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The study further examined the scores of the test-takers. In each subsequent administration of the test, the scores of the test-takers improved. (On average, of course--some had declines, and some improved far more than the average test-taker.)

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Understandably, single-attempt test-takers had by far the highest scores on the first attempt--even though they included 61 test-takers who failed the bar and would never attempt the bar again. And, perhaps predictably, those who only took the bar twice had higher scores on the first attempt than those who would go on to take the bar three or four times. But it's notable that in each group, the results improved. Granted, there's some self-selection in the sense that a few dozen who failed an exam would drop out of the next attempt. And, presumably, those motivated to study with greater discipline are those who are going to take the bar on subsequent occasions. But the suggestion from the scores is that continued time and effort to learn the law will ultimately lead to success--over time.

There are different issues about whether these results are good or bad, or whether retaking the bar exam upon failing is a good or bad idea depending upon circumstances, or whether there are other costs with retaking the bar exam in lieu of other options, and so on--many things that have been discussed elsewhere and will continue to be discussed. But, I find these data points of some interest to track what actually happens among those test-takers from a single administration, and using the data as a starting point for considering what to do with changes in pass rates.

The Donald On "SNL": Equal Time Isn't Needed

That's the title of my opinion piece, co-authored with my colleague Babette Boliek, in the Wall Street Journal. It includes the following call:

Holding a small number of broadcast stations and cable and satellite operators to a century-old standard makes little sense. Given the few situations that now trigger the equal-time doctrine, the explosion in available media outlets, and the government’s strained interpretations of the rule, it is hard to imagine how the doctrine yields more speech than it chills.