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From LawSchool.com:

A movement to adopt a uniform bar exam that would make aspiring lawyers’ scores portable from state to state and possibly save consumers money is gaining traction in several states but encountering opposition from others.

Missouri has been out front with implementation of a uniform bar exam and could give the first one as early as 2010, says Kellie Early, Missouri Board of Law Examiners executive director.

Jurisdictions including Colorado, the District of Columbia, Minnesota, New Hampshire and North Dakota are among those considering a uniform exam, bar officials in those jurisdictions say.

Bar officials from states including Arizona, Colorado, Idaho, Missouri, Montana, New Hampshire and North Dakota attended a conference Nov. 2 in Phoenix.

Jerry Landau, government affairs director for the Arizona Supreme Court, said Arizona is “seriously looking at it.” Chris Manos, executive director of the State Bar of Montana, said Montana is considering the exam, but cautions, “I believe it is not going to happen overnight.”

Delaware is not anticipating any changes to its bar exam in 2010, according to Pamela Tikellis, chairwoman of the Delaware Board of Bar Examiners. New York and California have not committed to changes, Moeser said.

This would be a very welcome development. The state run Bar is a Cartel which creates barriers to entry. If a law grad was able to take a single exam, and port it to several states, this would increase competition, and force attorneys to excel. I like it.

From CNN:

The beating of 12-year-old boy by a group of classmates at a Southern California middle school may be linked to a Facebook posting encouraging kids to target redheads, authorities say.

A Facebook page stating that Friday was “Kick a Ginger Day,” referring to redheads and possibly inspired by an episode of the “South Park” series, may have sparked the injuries at the middle school, authorities said.

Thankfully, the boy was not seriously wounded. But Ginger Kids everywhere should be alert.

For those of you unfamiliar with Gingervitus, see this instructive South Park episode:

Update: Apparently, this kick-a-ginger day is huge!

From Canada.com:

When Nanaimo high school student Aaron Mishkin appeared for classes Thursday, he heard his classmates talking about “kick-a-ginger day.”

It was the first the 13-year-old redhead had heard about the online phenomenon, and initially he thought nothing of it.

“But then I left the class, and we have seven minutes to get to the next class, and I was amazed by the amount of people that kicked me along the way,” said Mishkin.

Over the course of the day, Mishkin figures he was kicked or hit about 80 times, all because of a Facebook group, apparently inspired by an episode of the satirical cartoon South Park that urged members to “kick a ginger” on Nov. 20.

In Sooke, west of Victoria, more than 20 students at Journey Middle School were suspended after shocked teachers received complaints they were kicking redheads.

Katie Marshall, 15, a student at New Westminster secondary, was also victimized Thursday.

“[I] was just walking down the halls and then a bunch of random people started kicking me and I had no idea why they were kicking me,” Marshall said.

“I started running away and then suddenly one of them said something like ‘Oh, I’m going to kick you. You have no soul, so you probably can’t feel pain either.’”

But some experts are getting concerned:

Cyber-bullying expert Karen Brown said the Facebook group was a serious concern.

“I’m just absolutely appalled,” said Brown, who is a sessional professor and PhD candidate at Simon Fraser University.

“It’s really unprecedented,” she said, explaining that it’s common to see smaller groups making fun of a specific teacher or student. But this phenomenon was different, she said, since it was international in scope and advocated violence.

“This is inciting hate,” she said. “This is tantamount to almost a hate website.”

And see this video about South Park, Kick-A-Ginger Day, and a Hate Crimes Charge in Canada against the creator of the kick-a-ginger facebook site.

TaxProfBlog reports:

The New York Supreme Court has refused a New York Law School 2L’s request to change his “C” grade in Legal Writing II and to order the school to change its letter grading system to a pass-fail grading system like Yale’s. Keefe v. New York Law School, No. 109484/09 (N.Y. Co. Nov. 17, 2009):

It should not surprise you that a student who received a  “C” in writing would also have the chutzpah to sue over it. And, he requested that New York law School adopt Yale’s Pass/Fail grading scheme. New York Law School and Yale? Really? I hope this law student has a promising legal career.

From the opinion:

Plaintiff, a current student at New York Law School (“NYLS”) is suing NYLS as a result of a “C” that Plaintiff received in his Legal Writing II course. Plaintiff now moves for an injunction requiring the law school to change its grading system from letter grades to pass/fail. Defendant/New York Law School moves to dismiss. For the reasons stated below, the motion is granted.

Plaintiff attended Hofstra Law School from fall 2007 through summer 2008. Plaintiff asserts that because he is a transfer student, NYLS disadvantaged him by placing him in Legal Writing II in the spring semester of 2009. At NYLS, the legal writing curriculum is comprised of two courses: Legal Writing I and Legal Writing II.

Plaintiff further claims that NYLS breached an implied contract with him through statements on the NYLS website that require NYLS to act in good faith and fair dealing. Plaintiff maintains that the “C” he received was arbitrarily awarded and requests the relief that NYLS change its grading system from its current letter system to a pass/fail system, similar to that of Yale Law School. …

As a general rule, judicial review of grading disputes would inappropriately involve the courts in the very core of academic and educational decision making. Moreover, to so involve the courts in assessing the propriety of particular grades would promote litigation by countless unsuccessful students and thus undermine the credibility of the academic determinations of educational institutions. We conclude, therefore, that, in the absence of demonstrated bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation, a student’s challenge to a particular grade or other academic determination relating to a genuine substantive evaluation of the student’s academic capabilities is beyond the scope of judicial review.

Plaintiff is requesting this Court to intrude upon an area to which New York Courts have strongly refused to intervene. Here, Plaintiff has shown no evidence of “bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation.” NYLS clearly communicated through the student handbook that NYLS utilizes a letter grading system under which all of its students are evaluated. This Court declines to interfere with this quintessential function of an educational institution.

I am proud to announce that Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment is now available on SSRN. I co-authored this article with Ilya Shapiro from Cato. It should be published in the Georgetown Journal of Law & Public Policy on a blistering expedited schedule in January 2010, right in time for Oral Arguments in McDonald. This article is cited in an amicus brief to the Supreme Court in McDonald. I can’t say which one, but when they are released on Monday, you will be sure to hear about it here.

I will blog about this in some detail soon, as well as my general thoughts on McDonald and privileges or immunities.

Here is the abstract:

>The purpose of this article is to provide a roadmap to welcome the Privileges or Immunities Clause back into our modern constitutional jurisprudence. The Slaughter-House Cases “sapped the [Privileges or Immunities Clause] of any meaning” but the Supreme Court now has the opportunity correct this mistake. Heeding Justice Thomas’s call, we “endeavor to understand what the framers of the Fourteenth Amendment thought” the Privileges or Immunities Clause meant, and seek to restore that original meaning. This framework ensures that the Privileges or Immunities Clause is not manipulated to constitutionalize certain modern “rights” that lack deep roots in our nation’s history and traditions. No, the Constitution cannot be properly read to protect positive rights. Pandora’s box will thus remain sealed.

This article proceeds as follows: In Part I, we discuss the history of the Privileges or Immunities Clause starting with the Articles of Confederation and continuing through the Clause’s untimely demise with the Slaughter-House Cases, its re-emergence in legal scholarship, and its potential rebirth in Supreme Court jurisprudence. In Part II, we discuss the meaning of the Second Amendment as it relates to the states by considering District of Columbia v. Heller and subsequent litigation.

In Part III, we explore the Progressive vision of the Privileges or Immunities Clause as it fits into the “Constitution in 2020” paradigm. This model recognizes rights according to national and international consensus, evolving standards, and the enactment of so-called landmark legislation. We show why privileges or immunities serves as the desired weapon of choice to achieve the “Constitution in 2020” by way of its superiority over Substantive Due Process and Equal Protection. Through the Privileges or Immunities Clause, progressives seek to reconceptualize the provision of education, health care, welfare, and other positive entitlements as inviolable constitutional rights. Thus, Pandora’s Box is cracked ajar, with all manner of governmental guarantees and policy preferences spewing forth.

In Part IV, we contend that the Second Amendment could be incorporated through the Due Process Clause, though this approach is historically deficient. In light of Justice Antonin Scalia’s opinion in Heller, and applying modern selective incorporation jurisprudence, the Court is likely to find that the Second Amendment is “necessary to an Anglo-American regime of ordered liberty” and should thus be extend to the states.

In Part V, we show that, instead of dutifully treating the Second Amendment as it has almost all the other parts of the Bill of Rights, the Court should find the underlying rights to be among the privileges and immunities directly protected by the Fourteenth Amendment. Accordingly, this article is not so much concerned with why the Second Amendment should be incorporated but instead provides the Court a roadmap to protecting the right to keep and bear arms for defense of person and property through the Privileges or Immunities Clause. Indeed, the notion of “incorporation” would have been anachronistic, and considered a constitutional deviation at the time of the Fourteenth Amendment’s ratification. Historical accounts of the ratification debates reveal that the Privileges or Immunities Clause was meant to protect both more and less than the Bill of Rights. Thus reconceptualized, the clause should be viewed not as a mechanical incorporator of the first eight amendments, but rather as a limitation of the power of the states to infringe certain liberties. In 1868, these liberties were referred to as privileges or immunities.
What are these privileges or immunities, and what relationship do they have to the Second Amendment? To resolve this query we answer Justice Thomas’s call in Saenz, and seek to “understand what the framers of the Fourteenth Amendment thought that it meant.” We propose extending the Glucksberg framework for recognizing substantive rights that are deeply rooted in our nation’s history and traditions to understand how privileges or immunities were understood in 1868. By applying the Glucksberg test and adapting Judge Diarmuid O’Scannlain’s opinion in Nordyke v. King, we find that the right to bear arms for the defense of person and property—independent of its enumeration in the Second Amendment—was considered a privilege or immunity of citizenship in 1868.

Part VI concludes by echoing Justice Thomas and implores originalists not to shy away from the Privileges or Immunities Clause for fear that it will become the camel’s nose of positive rights into the constitutional tent. Instead, resurrecting the Privileges or Immunities Clause can continue the process of aligning the original meaning of the Constitution with the protection of our most sacred liberties. This process will also eliminate the “current [state of] disarray” of our Fourteenth Amendment jurisprudence. Failing to take control of the Privileges or Immunities narrative invites an alternative vision of the Fourteenth Amendment that further departs from the original meaning of the Constitution. Now is the time, and McDonald is the case, to advance an originalist vision of the Privileges or Immunities Clause. Only by correcting the historical record and claiming it for our own can we keep Pandora’s Box sealed.

I welcome all comments, suggestions, critiques, and any other feedback.

I have blogged a bit about the President’s Czars and the appointments clause. Recently Professor McConnell posted a great WSJ Op-Ed on this point.

The Federalist Society is hosting an ongoing online debate between McConnell and Professor Flaherty.

Here are the opening salvos.

McConnell thrusts:

There is no doubt that Mr. Feinberg is an “officer” of the United States. The Supreme Court has defined this term (Buckley v. Valeo, 1976) as “any appointee exercising significant authority pursuant to the laws of the United States.” Mr. Feinberg signed last week’s orders setting pay levels for executives at Bank of America, AIG, Chrysler Financial, Citigroup, GMAC, General Motors and Chrysler. They have the force of law and are surely an exercise of “significant authority” pursuant to an Act of Congress. He is not a mere “employee,” acting at the direction of a superior. That means his office is subject to the requirements of the Appointments Clause.

While somewhat more disputable, Mr. Feinberg’s is probably an “inferior” officer, defined as one subject to supervision and removal by a member of the cabinet. Although he has substantial discretion and independence, Mr. Feinberg reports to the secretary of the Treasury, who can fire him any time for any reason. This means that Congress could, if it wished, vest the appointment of the pay czar in the secretary, without any need for Senate confirmation.

Flaherty parries:

Unless one is a Wall Street solipsist, the power to reduce executive compensation does not place Feinberg on par with Hillary Clinton or above Kenneth Starr. It follows that Congress should have had a role in determining the appointment process, either by vesting the power in the Secretary of the Treasury, the President alone, or even a court, such as the D.C. Circuit.

One point, however, calls for clarification. Judge McConnell at first says that “Congress may, if it wished, vest the appointment of the pay czar in the secretary [as Head of a Department], without any need for Senate confirmation.” So far so good. Yet he adds that, in lieu of Congressional action, he could only delegate the Pay Czar power to someone who is subject to Senate confirmation. On one hand, why could he sub-delegate at all? On the other, why not sub-delegate to someone subject to appointment in one of the three ways that the lower track of the Appointments Clause calls for?