posted by Curt, on September 13, 2008 04:10 pm

I passed. That is all.

posted by Curt, on February 10, 2008 09:06 am

Today I read an article in the Deseret News about a kid who got a perfect score on his ACT exam. Supposedly he's the only one in the state to have done it on the October iteration of the test. You've got to be impressed when someone does something like that--especially a high school student. However, as I was reading along, I found out that this was his fifth time taking the test. I had no idea that people took the test so many times. Ros kind of laughed at my naivety . . . her response was "of course they take it more than once." So, I thought I would do a search to try and find out how many people got a perfect score on the ACT on their first try. I couldn't come up with a single result (although I'm sure there are those who do). All this confirmed a suspicion I've had for some time: a number of these students think (and not totally without reason) that their performance on these standardized tests controls their destiny. Why else would someone put themselves through the pain of a college admissions test more than once? I only took that ACT once, and I checked out an old ACT book from the library and looked over it for a couple hours the night before the test. That was the extent of my test prep. Nowadays, it seems that the question is no longer "what did you get on the ACT?" but "what did you get on the ACT last time?"

It also got me wondering, how meaningful are standardized test scores in this day of prep courses and retakes (assuming they were ever meaningful in the first place)? This, of course, begs the threshold question of what exactly standardized test scores are supposed to measure. If they are supposed to measure ability to study for and perform well on a generalized test, then they are probably doing a better job than ever. If, instead, they are supposed to provide some kind of measure of raw intelligence, then the retakes and preparation is probably rendering them less effective (as well as potentially biasing those with the $$ to afford expensive classes and materials).

Here's something from FairTest (an anti-standardized testing organization):

Increasingly the ACT and SAT are seen as 'wealth tests,' not accurate predictors of a teenager's capacity to do college academic work," Schaeffer continued. "That is a major reason why more colleges and universities are moving toward test-optional admissions." FairTest calculates that more than 740 accredited, bachelor-degree granting institutions now have test-optional policies for substantial numbers of applicants, with 21 colleges and universities dropping ACT and SAT testing requirements in just the past year.

FairTest also claims that more and more colleges are devaluing the ACT/SAT scores in their admissions process (see their list here). However, the list of schools they provide hardly reads like a list of preeminent educational institutions. If you take the perspective that students and their parents are "rational actors" and this test preparation and retaking craze is a response to legitimate economic incentives, it seems that standardized testing is alive and well even though tests are no longer seen as a one-shot deal that measures ability.

While I'm conflicted about whether the prep classes and the retaking makes standardized testing results less meaningful than they otherwise would be, I am not conflicted about whether I think this is a good thing: I absolutely do not. The pressure has got to be incredible--and I doubt that the pressure is coming from the students themselves. That, to me, does not seem to be in the nature of most high school age students (and that's probably a good thing). It may be coming from parents, it may be coming from educators. But wherever it comes from, it's not a good thing. And I have a feeling that, even though FairTest's current announcement of the death of standardized testing is probably significantly exaggerated, if this keeps up there will have to be some changes in the standardized testing regime. It creates in students an attitude that their ticket through life is guaranteed by high test scores. I see this in some of my fellow law students (and perhaps even myself, at times). The attitude is that, so long as you are in the top XX percent of the class and on law review, you are guaranteed XX. While to some extent is true, I have a feeling that the world hits individuals whose most significant ability is taking an exam better than the competition smack in the eyes rather quickly.

I don't know that standardized admissions testing should be eliminated (especially given the volume of applicants), but I think that schools would do themselves (and students) a favor if they really deemphasized the importance of good scores on these exams. One of the things that would enable them to do that is if high schools would stop giving so many students straight A's. But grade inflation is a topic for another post . . .

posted by Curt Bentley, on January 8, 2008 01:24 pm

Here's a great description of what lawyers do:

A lawyer is a student of meaningful differences among apparently similar situations, and meaningful similarities among situations of no apparent connection. A person who is keen at spotting differences or similarities, discarding the unimportant ones, fastening upon the important ones, and being prepared to explain the reasons for their importance, is well along toward thinking like a lawyer. That skill is demanded in many fields of endeavor. So is the good lawyer’s hesitancy to accept easy assumptions about the facts, and his instinctive reach for verifiable truth.

This is from Elder Dallin H. Oaks.

posted by Curt Bentley, on November 12, 2007 08:20 pm

I have a great new idea for a law review article: The Misapplication of the "Indisputable Evidence" Standard of Review on Instant Replay Challenges in College Football. It seems to me that most replays are reviewed under a de novo standard, when it should be abuse of discretion or clear error. Maybe I'll work on this one over the summer :) I'm thinking that the solution might be to have college referees take first-year civil procedure.

posted by Curt, on November 7, 2007 01:24 am

This is the first in a line of posts that I'll be adding about ideas/writings that have had a significant impact on the development of my own opinions. I hope they'll be interesting posts and perhaps point the occasional reader to a source that I've found helpful.

One of the many good experiences I've had at BYU Law School is the professional development seminar available to first-year students during their first semester. Some at the law school refer to this (and somewhat derisively) as the "Sunday School" class because it is often LDS focused. I, however, as LDS and a future attorney, found it a very valuable experience. One of the "talks" that we read that I remember most was a BYU Devotional given by Bruce Hafen, probably sometime during the 1980s, entitled "Dealing with Uncertainty."

Elder Hafen's talk is directed at college students, who, he notes, when confronted with (1) the ambiguity and uncertainty of life, and (2) the gap between the real and the ideal often have a difficult time in dealing with it. Elder Hafen's talk is advice to college students who "yearn with nostalgia for simpler, easier times, when things seemed not only more clear but more under [their] control."

Elder Hafen sets out three possible approaches to dealing with uncertainty--the uncertainty about how the principles of the gospel should be applied to "particular situations in our lives," especially those that are "not the subject of detailed discussion in Church manuals or courses of instruction." I'll quote from his talk in setting them out:

Approach 1: focus on the ideal and ignore the reality. These are those who have difficulty reconciling the gospel ideal with reality, and therefore simply ignore reality and live as though everything were the ideal. Elder Hafen's description of those who adopt approach one is amusing and substantially accurate:

For those in this category, the gospel at its best is a firm handshake, an enthusiastic greeting, and a smiley button. Their mission was the best, their ward is the best, and every new day is probably going to be the best day they ever had. . . . They are able to weather many storms that woudl seem formidable to more pessimistic types, though one wonders if they have somehow missed hearing that a storm was going on.

Those in this category eliminate the frustating distance between the real and the ideal by, in effect, . . . cling[ing] to the ideal so single-mindedly that they are able to avoid feeling the pain that would come from facing the truth about themselves, about others, or about the world around them. I suppose it is this category that is so frequently represented in the letters to the editor of the school papers at BYU and Ricks, where such shock is occasionally expressed that some person or some part of the institution has fallen short of perfection and the writer is aghast--"surely not at the Lord's university."

Approach 2: focus on reality and become cynical about the ideal. For this model, Elder Hafen uses law students as his example--not surprising to me after 2 1/2 years of experience :). Those who adopt the second approach confront the gap between the real and the ideal but also becomes victims of that confrontation. While "grappl[ing] with the frustration that comes from facing bravely the uncertainties we encounter" is necessary to develop the spiritual maturity necessary to endure well in the gospel, Elder Hafen warns that this confrontation of the "real" can "be so complete that the iron rod fades into the receding mist and skepticism becomes a guiding philosophy." How about this indictment of law students (yes, even at BYU):

[B]y the time our law students reach their third year of study, it is not uncommon for them to develop such a high tolerance for ambiguity that they are skeptical about everything. Where formerly they felt they had all the answers, but just did not know what the questions were, they now seem to have all the questions but few of the answers.

I find myself wanting to tell our third year law students that those who take too much delight in their finely honed tools of skepticism and dispassionate analysis will limit their effectiveness, in the Church and elsewhere, because they can become too contentious, standoffish, arrogant, and unwilling to commit themselves. . . . The dangers of which I speak are not limited to out relations with others. They can become very personal, prying into our own hearts in unhealthy ways. The ability to acknowledge ambiguity is not a final form of enlightenment. Having admitted to a willingness temporarily to suspend judgment on questions that seem hard to answer, having developed greater tolerance and more patience, our basic posture toward the Church can, if we are not careful, gradually shift from being committed to noncomittal. That is not a healthy posture.

Indeed, in many ways, a Church [member] who moves from a stage of commitment to a stage of being tentative and noncommittal is in a worse position that one who has never experienced a basic commitment. The previously committed person may too easily assume that he has already been through the "positive-mental-attitude" routine and "knows better" now, as he judges things. He may assume that being submissive, meek, obedient, and humble are matters with which he is already familiar, and that he has finally outgrown the need to work very hard at being that way again. Those are the assumptions of a hardened heart.

Elder Hafen warns those who acknowledge the gap between the way things are and the way they ought to be against becoming "so aware of 'reality' that [they become] unresponsive to the whisperings of heaven."

Approach 3: acknowledge the real and pursue the ideal. Those who follow this approach when, confronted with uncertainty or difficulty, acknowledge the reality but give "the Lord and his church the benefit of any doubts that [they] have when [the] case seems too close to call." Elder Hafen uses the LDS hymn Lead, Kindly Light as the example of the third approach:

At level one, people either do not or cannot see that there are both a kindly light and an encircling gloom, or that if there are both, there is no real difference between the two. At level two, the difference is acutely apparent, but one's acceptance of the ambiguity may be so wholeheartedly pessimistic as to say, "Remember that the hour is darkest just before everything goes completely black."

How different are these responses from that calm but honest prayer at level three,

Lead, kindly light
Amid th'encircling gloom;
Lead thou me on . . .

I do not ask to see
The distant scene-
One step enough for me.

The person at level three acknowledges the difficulty or uncertainty and yet still pursues the ideal as best he or she can because of the assurances in their heart that it is both possible and right.

I remember the profound influence that Elder Hafen's words had on me two years ago when I first read them. They taught (and perhaps reminded) me that the principles of the gospel are just that -- principles -- and that the application of principles to the various situations in life is never a certain thing, as much as we may want it to be otherwise. I have since noticed the approaches to uncertainty that Elder Hafen described being played out in real life as members of the church who are certain (or what desperately to be certain) about the truths of the gospel deal with their reconciliation of this certitude with the uncertainty of life. Some abandon the certainty; others attempt to convert all of their own personal approaches to the problems of life into the principles of the gospel.

There are some things I am certain are right, there are others that I'm certain are wrong. But there are a great deal more that I am simply not sure about. I just go ahead and try and figure out the way I think the principles of truth should apply in the situations I'm confronted with and act accordingly. But, perhaps the most valuable thing I've taken away from what Elder Hafen has said is the fact that, in a great many situations, the fact that another feels differently from me is not concrete proof that either he or I have somehow gone astray.

I encourage anyone who actually reads to the end to look for Elder Hafen's talk and read the whole thing. I also appreciate any comments.

posted by Curt Bentley, on October 23, 2007 03:57 pm

The Chief Justice put in a full days work here at BYU today. He spoke at a University Forum in the morning, held a campus-wide question and answer session immediately after that, and then held an hour-long question and answer session with about 1/2 of the BYU Law School from 2:30 - 3:30. That's a big time commitment out of the Chief Justice's schedule, and I'm not sure that many people outside of the law school understood what a big deal it was to have him there.

I attended the forum and the law school Q & A. I was impressed by the Chief Justice's speech and responses to questions, and, surprisingly, was generally impressed by the questions themselves. I have been at too many question and answer session with important speakers where the questions asked devalued the whole experience. At the law school Q & A I thought the questions were ones that prompted some insights about the Chief Justice himself, as well as life on the Court, that one doesn't get from reading opinions or biographies. The only thing I was disappointed in is that there were multiple people who asked the Chief Justice is his policy preferences ever influenced his decisions. One funny moment in the session was his response to that question . . . "do you really expect me to answer yes?" He was adamant that, at least for him, it did not. Indeed, he said that one of things that surprised him most about the federal judiciary was that--despite the academic criticisms of judges as policymakers--all of the judges that he worked with genuinely tried to ensure that the law, rather than their own policy preferences, were enforced.

Another funny moment of the session came in his response to the increasing length of judicial opinions: that he thought it was a problem, but one that he didn't contribute to (he later tempered this assertion). Everyone had a good laugh at that. I thought that the most interesting theme in his responses, however, was concern (although it was always expressed in jest) that cynical law professors and other academics were poisoning law students' (and others) attitudes toward the federal judiciary. While he urged us not to be naive in thinking that a judge's policy views never impacted their outlook and opinion on the law, he also counseled against subscribing to the academic view that a judge's efforts at neutrality are nothing more than a pretense and that the Supreme Court is nothing more than a political institution. Perhaps the Chief Justice's concern was that the academic critiques, coupled with increasing political polarization and pressure, might become a self-fulfilling prophecy within the next generation: if future judges believe that the federal judiciary is only a place where the policy preferences are enforced on society, than that's how they will treat it. If that happens, then, according to the Chief Justice, the great American innovation--judicial review--will be effectively lost.

All in all, the Chief Justice was a great ambassador for the Supreme Court and it made for a very interesting day to listen to him.

Oh, and I did ask a question during the question and answer period. My question dealt with the Chief Justice's attitude toward the increased media coverage of the Court . . . it was an unremarkable question and produced a rather unremarkable answer . . . but I tried!

posted by Curt Bentley, on October 21, 2007 09:48 pm

One of the big surprises of my semester so far, for me as much as for anyone else, is that I enrolled in a global climate change class at the law school. I consider myself to be a global warming skeptic, albeit not a strident one. My concern with emissions has never been climate change. It has always been air pollution--especially the effect of particulate pollution on children's lungs. Keeping the air clean for kids is a cause I can get behind. Same with reduction in fossil fuel use to eliminate energy dependency. As far as desired policy goals, I actually have quite a bit in common with global warming crusaders. I already do everything Al Gore suggests at the end of An Inconvenient Truth :). And, I despise the fact that so many people (especially here in Utah) appear to drive high pollution vehicles (that spew black smoke in my face every time their automatic transmission shifts down) for no apparent reason other than their vanity and the weekend boating trip. But the global warming crusaders have always rubbed me the wrong way.

Why? Well, I find crusaders quite annoying as a general rule. I have been one, at times, and I don't generally look back on my crusading episodes as my best moments. I, as a rule, prefer logic and reason to emotion. Maybe that is why the stop global warming crusaders annoy me so much. Al Gore is my case in point. He travels the world, convinced in his own mind that he is saving it, and derogating the intelligence and sense of responsibility of everyone who disagrees with him. Most times these derogations are quite subtle. They often appear in the form of "we need to educate those who don't understand what is going to happen . . ." and "they are well meaning, just like us, but misguided." I'm not sure whether those words are used, but that's the thought behind whatever is said, I'm sure. It's just like when Republicans attempt to appear broadminded by acknowledging that "Democrats are patriots, too" . . . a backhanded compliment if there ever was one. I experienced all this during my time at the University of Iowa, where my liberal colleagues viewed me as a casualty of a religious upbringing. I could just see the thought in their heads as we debated . . . "Curt has the intelligence necessary to do good in this world, if only he hadn't been raised as a conservative Mormon . . ." That was never said, and my friends treated me very well, but I sensed it nonetheless. Anyway, global warming folks have always alienated me (and perhaps others like me) by their alarmist (this is the end of the world for our children) and condescending approach.

But, I have, for the first time in my life, seen a different side of the global warming camp since taking my class at the law school. My professor, from the political science department, is an advocate for dealing with global warming, but not a crusader. Here is his approach to the problem. He argues that the science is not certain, but there is substantial evidence to suggest that problems may be coming down the road if we continue certain policies. Therefore, shouldn't we take preventative measures in order to hedge against the possible consequences of climate change? Additionally, he advocates economic development in the third world as a way to deal with any negative effects that come. The position is as follows. The best way with dealing with the effects of climate change is economic development. It allows people the ability to adapt to changing conditions (such as drought or sea-level rise or whatever). Therefore, one of the best climate change mitigation policies is to develop the third world . . . and the best approach to that may not be limiting emissions. This seems somewhat in line with the Kyoto Protocol's approach. I'm not sure if I agree with my professor's positions, but I seriously consider them because he presents them reasonably, and not like a crusader. He acknowledges the uncertainty in causation (although he thinks it is minimal) and more importantly the uncertainty as to the effects that global warming will have if it continues. In my opinion, global warming crusaders would have a lot more success if they tried to be more reasonable about their positions and (1) stop the fear mongering by acknowledging that global warming probably won't end the world, (2) present their policies as a classic risk-mitigation strategy rather than the response to the crisis of our generation, and (3) talk about the air pollution and energy dependence implications of their policies.

I'm sure there are those out there (perhaps many of them) who are already doing this. However, people like Al Gore are hurting the cause, I think. Just my opinion.

posted by Curt Bentley, on October 19, 2007 08:14 pm

Wow, I just finished my initial author review for my article that's being published in the BYU Law Review. I think the article is getting quite a bit better, and it was actually kind of fun to see things developing a little bit better.

I think that I've become a better writer over the course of my time in law school, and one thing that I've learned is that, no matter how well you think you've written something, if you have some time to step back you'll discover ways that you can make it more clear and more persuasive. In that sense, then, the key to good writing is to get started early and have a lot of time to revise. If those are the criteria for a good paper, then mine should turn out all right. I hope.

posted by Curt, on October 15, 2007 08:36 pm

David Currie of Chicago past away this evening. I must admit this was somewhat surprising to me, given that I just took Federal Courts last semester and relied quite a bit on Currie's Federal Jurisdiction in a Nutshell. I thought it was well done, and very helpful, especially since my Fed Courts professor had Currie for Fed Courts when he graduated from Chicago. I don't know much about Currie, except that I always heard his name mentioned favorably and knew that he was admired by a lot of other professors.

Anyway, I wish his family and the people at Chicago well.

posted by Curt, on October 11, 2007 09:43 am

If I remember correctly from my statutory interpretation class, a scrivener's error occurs when there has been an obvious clerical error in a legal document -- whether it be a contract or a statute or whatever. In those cases many (and perhaps everyone, but I doubt it) believe that a court should go ahead and ignore the literal meaning of the language and interpret the document according to what its obvious meaning is -- in other words, rewrite the document to correct the error. The key question is obviously a what point does the error become obvious.

An interesting article showed up on CNN this morning. Apparently, there seems to have been some kind of scrivener's error in an Arkansas statute that defines the age when a child is allowed to marry. This error (which was due to an unnecessary or misplaced "not" in the statutory language) allows persons of any age to marry in Arkansas, so long as they have their parent's permission. It seems like just about everyone in the legislature (as well as the governor) sees this as a mistake. However, the governor didn't call in the legislature to change the law, her simply referred it to a revision commission that exists to correct scrivener's errors. The commission made the correction, but a woman sued about it. The case went to the courts, and the court held that the commission could not correct the law, because the correction changed the law's meaning. Instead, the law has to go back to the legislature and be re-written. Apparently, the judge didn't think the law was as obviously erroneous as everyone else did . . . or at least that it wasn't within his judicial authority to say so.

Anyway, I thought it was interesting. I've never been sure how I feel about scrivener's errors. I think it has to be pretty obvious that the legislature messed up before courts, or other non-legislative bodies, should be given authority to re-write the law. I'm not sure you can conclude that a mistake such as this is obvious in a short statute. I think that, generally speaking, there would have to be a large statutory scheme where one word is so obviously out-of-step with the rest of the statute that one could only conclude it was used as a mistake. My suspicions are that this was not the case here, and so I think I'm with the judge on this one.

posted by curt, on October 10, 2007 09:56 pm

I really enjoy listening to the song that is the background for the law school's recruiting video. The title of the song is actually My Home Beloved.

posted by curt, on October 10, 2007 12:12 am

Well, I just finished a research memo for a Professor here at the law school. I'm not sure that he meant it to take as long as it did, but I've worked pretty solidly on it for the last couple days. I've had about a total of 4 waking hours that haven't been devoted to it. It's such a complex memo, I'm not even sure how good it is. Still, it's a nice feeling to have it done, and I know that I've done my best.

Now, it's off to bed for me. Goodnight.

posted by curt, on October 5, 2007 08:28 am

All, any sources that are listed as available on Curt's webpage can be found here: http://www.curtsnew.com/sources/. Have fun.

posted by Curt, on October 2, 2007 12:23 pm

Justice Thomas gave a long interview for 60 minutes recently (it was broadcast this past Sunday, I believe). You can view the interview on CBS' website. There has been quite a bit of effort to rethink the "conventional wisdom" about Justice Thomas, beginning with Jan Crawford Greenberg's Supreme Conflict, which came out early this year.

I think the interview is good, and I ordered Justice Thomas' new autobiography from Amazon last night. I'm sure it will take over my weekend, but I'm really excited nonetheless. I've come to have quite a bit of respect for Justice Thomas over the last year. I must admit that, even at a place as conservative as BYU, I came away from my first year with the distinct impression that Justice Thomas was a little "out there" as a judge, and was someone to be ignored while we focused on the Scalias and Breyers of the Court. Granted, Thomas' opinions often seem rather extreme in comparison with his colleagues (while they bicker about which Establishment Clause test to apply Thomas asserts that the Establishment Clause doesn't apply to the states). Still, it really is interesting how he gets cast as an intellectual lightweight, when there is substantial evidence to the contrary.

I'm glad, for his sake, that people are rethinking their attitudes toward him. There's an interesting exchange between him and his interview about whether or not he has "won" anything by getting nominated to the Court and kind of coming out of the criticism heaped on him by his opponents. Thomas asserts that he hasn't "won" and his detractor's haven't "lost" anything. I don't think anyone wins when you have people engaging in the kind of personal attacks that Thomas had to endure when he was nominated. Everyone loses. But, I think everyone wins when those things get re-thought. Now, hopefully, both his critics and supporters (including me) will be able to see Justice Thomas in a more realistic light.

posted by Curt, on September 29, 2007 07:02 am

This news is a little bit old . . . but my Comment "Constrained by the Liberal Tradition: Why the Supreme Court has not Found Positive Rights in the American Constitution" is going to be published by the BYU Law Review. Anyway, I'm excited about it. I hope it's at least somewhat worthwhile.

posted by Curt, on September 29, 2007 06:54 am

As my fellow 3Ls have been interviewing for clerkships this fall, I've talked to them about how their interviews went. It seems that judges vary quite a bit in their approach to interviewing potential clerks. For some, an interview is primarily a personality compatibility check--is this the type of person who I could work closely with for a year. For others, the interview is much more substantive: either with the purpose of checking logical reasoning ability or just to see whether the views of the clerk are in line with their own.

I heard that one judged asked his interviewee what she thought about the 9th Amendment and how Roberts' and Alito's nominations would impact the Court's approach to that amendment. But one question that I have heard that judges ask quite a few people is: what Supreme Court case do you most disagree with and why? It's an interesting question, and sounds like a good way for a judge to test both the logical reason skills and (perhaps) the ideological position of an applicant. So, I thought I would throw out a couple of possibilities:

Gonzales v. Raich, 545 U.S. 1 (2005)

Grutter v. Bollinger, 539 U.S. 306 (2003)

My main problem with these cases is not the result. It's that I don't think that the reasoning employed by the Court was correct. I would welcome your thoughts--both as to my two selections and any that you have--as well.

posted by Curt Bentley, on September 20, 2007 11:42 pm

This is really just a test posting that I am doing.

I particularly want to see if my paragraph replace function is working the way if should be. I'm not sure that it will, but it might. I'm just going to type a little more, to stretch out this paragraph. That should be good enough.

Now, here comes the third paragraph--I hope that it indents OK. I want to see what happens when I only hit return one time. I think it will probably just ignore the return, and you won't even see it.

We'll see if that is in fact what happened.