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June 26, 2005
Bar Review and Education: Not Mutually Exclusive
The bulk of bar review has been about memorization and indoctrination. They're not teaching us law or policy, they're teaching us to pass the bar.* Sometimes this path leads to extreme pointlessness, such as teaching common law doctrine that has been superseded by statutes in all 50 states.
Bar review differs from law school in large part because there is no question and answer. My first semester of law school, I struggled to find the rules of law buried in cases and class discussion, and I often felt lost at sea. I cursed my professors for not just telling us the damn law. Now, in bar review, they tell us the damn law, and I find it incredibly boring. Sure, there were times when I hated class discussion and the classmates that befouled it. But over time, I came to learn a lot from it. In discussion -- if led by a decent professor -- you are forced to apply the rule of law and understand why it works that way, rather than simply being told the rule and writing it down.
But, -- yes, but! -- even in bar review, you can learn. In a practice question for Constitutional Law, the correct answer was that the state's internal express delivery service would violate the federal postal monopoly. Article 1, Section 8, clause 8 gives the legislature the power "To establish Post Offices and Post Roads."
While I'm quite familiar with other parts of Article 1, such as the copyright clause (or patent clause, depending who you talk to) in Article 1, Section 8, clause 8, I had no idea that Congress had this power. But when I read the answer and explanation that went along with the practice question, something didn't quite sit right. If there is a Constitutional monopoly on postal service that would preempt the hypothetical state express delivery program, how the hell do we have FedEx and UPS?
The answer lies in the Private Express Statutes (See 39 C.F.R sections 310-20). In the late 1970s, big companies were upset that the U.S. Postal Service couldn't move their documents around the country fast enough. Business was outpacing the Pony Express, so the government relinquished control.
I came across the answer in this excellent interview with Fred Smith, the founder of FedEx. Smith dispells the legend that the idea for FedEx was originally in a school paper on which he received a bad grade.** He talks a bit about FedEx's role in the late 70's deregulation, how documents were an afterthought compared to the original focus of delivering equipment, and about how the explosion of the Challenger in 1986 changed the company's course. It's really a good read.
Yes, I posted a different link about FedEx in the "recent reads" just the other day. It's pure coincidence, but it turns out there is much about the company that makes good reading. This interview puts a face to the story in the previous article about how they chose the new logo.
I love the internet. I don't love bar review, but at least I'm finding ways to learn from it.
* I think they're probably doing a decent job of it. I have lots of little complaints, but I'm getting something for my money and can't imagine trying to prepare on my own.
** Damn. That's an urban legend I had always liked, and I had certainly contributed to its spread among friends and acquaintances.
Posted by buddha at June 26, 2005 10:54 PM
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Comments
what's surprised me on all the BarBri conlaw materials: they seem to base alot of the question fact patterns on actual settled caselaw, but I've not run across any nude dancing fact pattern in the lot. 3 years of conlaw in one flavor or another have taught me that if you ever want to raise constitutional bedlam, do it wearing only a cowboy hat and a smile (subtitle: "I've got your amendment right here" or "here's the original intent").
God, barbri is killing me.
Posted by: sauce at June 27, 2005 06:56 PM
Well, as I said in the post, you can in fact learn during bar review. It just takes a little more outside effort. You should visit a gentlemen's club as "outside research" on both zoning laws and the First Amendment. Double whammy (which itself violates community standards of decency in certain parts of the country).
Posted by: buddha at June 27, 2005 07:41 PM