Monday, July 30, 2012

Training a Lawyer

After three years of higher education and after about $100-200,000 of constantly accruing debt, law grads enter a packed job market. A market where these fresh, newly-appointed esquires, find their skills are not needed.
 While the national unemployment rate is 8.2% as of May 2012 according to the United States  Bureau of Labor Statistics, the current unemployment rate for new law school graduates is 85.6%, according to a press release by the Association for Legal Career Professionals. According to that same release only 65.4% of the recent grads who did find work acquired a job for which bar passage is required.
            Even the graduates who pass the bar and obtain one of these few illusive positions where a fledgling attorney can actually use his/her lengthy, expensive education, are not generally prepared to practice.
            “Law school prepares you to pass the bar exam, not to practice law, not to be a lawyer,” Stephanie Anderson explained. Anderson graduated from University of Missouri—Kansas City (UMKC) School of Law in 2011 and subsequently passed the Missouri Bar.
“Law school teaches you to be competitive and then you will get ahead.  Some of the top people in my class will make horrible attorneys because they have no people skills, no ability to negotiate. They memorized stuff for the exam and studied the hardest. This does not necessarily mean you will be a good attorney,” elaborated Autumn Huston, who received her J.D. from St. Thomas University Law School in Florida and her L.L.M. from George Washington University Law School in Washington D.C.
            Everyone I met related to the legal practice, the proverbial “they,” say about law school that, “The first year they scare you to death, the second year they work you to death and the third year they bore you to death.” With the help of hindsight, (I graduated in May 2012) I have verified this statement’s accuracy.
            The first year they bring you in, cocky but scared, excited but apprehensive, and intelligent but ignorant. Everyone thinks they know, and few know what they don’t know. Two days of property class fixed that problem for me.
After a short time in law school I began to experience feelings reminiscent of an epistemology class I took in undergrad. In epistemology, the philosophical study of knowledge, we discussed what we could and could not ever know. I accepted that I could never know whether or not I was a figment of my own or someone else’s, imagination, a character in a play or even a brain in a vat. But once I realized I knew nothing, I could actually learn something. The first year of law school has the same effect.
“The first year provided an excellent overview of the main areas,” Josh Wiseman who graduated from UMKC this May explained. Every law student spends the first year in basic core classes, contracts, property, torts (injury to one’s person or property aka lawsuits), criminal law, civil procedure, constitutional law and legal writing courses.
They’re not kidding when they say that the second year works you to death. At this point students begin to branch off onto their varying veins of study. Some walk on a clear-cut path, others search for their way through the weeds and vines of trial and error. Still, certain advanced core classes, such as a Uniform Commercial Code class (a code pertaining to commercial contracts), are required.
While the 2Ls progress and choose their own classes, professors pile on the work. The classes descend deeper into a subject matter. The reading assignments weigh heavier. The workload takes over. Many disappear into their 2L year, barely ever coming up for air, for food or even, for beer, although the law school organizations do provide substantial opportunities for free-spirited distractions.
And, amongst the rising tide of second year, 2Ls begin the job search. These students scour the local law offices, the happy hours, desperate for any connection, any driplet of experience to develop their still-in-developmental-stage skills.
“I got a job but a lot of people couldn’t,” Wiseman said leaning back in his school office chair, “So I got experience that other people didn’t.”
“Without my internships, I wouldn’t have known what I was doing,” Sarah Werner, a UMKC School of Law graduate supposed. Werner further explained that she gained a bounty of theoretical skills, but few tangible skills from her classroom experiences. 
“In the overall perspective, they drag it out too much. We have to take required classes for stuff we won’t ever do,” Wiseman added.
“Law school is too long. Six semesters is not necessary,” Chris Hawkins a recent UMKC graduate protested.
3L year is spent finishing up core classes and trying to procure a career. Class, the readings and the work seem to have moved slower 3L year. As their brains became lawyers, classes that would have seemed dreadfully impossible the year before were conquered with ease.
Hawkins described these growing reflexes as the Smell Test, the ability to analyze with the background of life experience to find what factor does not fit, even if you have no clue why. The smell test, Hawkins clarifies, “Is a reason, a spot to dig.”
“We learned to think like lawyers, Catalina Velarde, another UMKC graduate asserted. “It’s a very positive change. I feel I’m a better listener, participant in news and everything around me.”
Even though they can think like attorneys, these graduates do not feel able to act as attorneys.
“It’s one thing to know what the book says. I need to know what I can actually use,” Trisha Green a UMKC Juris Doctorate expressed with a cool frustration.
Some teachers seem to recognize the student’s desires or needs such as Francis Hannah who teaches a variety of property-related classes at UMKC. Hawkins and Wiseman took Hannah’s estate planning and trust class in which each student assisted a client. Each student was responsible for contacting the client, interviewing and communicating with the client, and preparing an estate plan for the client. Both students claimed they learned significant skills such as counseling and drafting during the process.
            At the end of May the Juris Doctorates graduate and celebrate. About two weeks later preparations for the state bar exam begin, and the anti-climax plummets, They spend the next two months wading and swimming in, surrounded and engulfed by, law. The law consumes them. Life becomes one continuous hypothetical where friends, family and even strangers become part of a continuous fact pattern, a legal problem to solve.
            But the bar, as put by several Barbri professors, is not real life. Barbri is a bar preparation program that a high proportion of preppers use. Those who take the bar must memorize the elements of 17 areas of law so that they’re prepared for each element to be chosen among the lucky few for on essay portion.
            “I don’t know what they’re trying to do with that test,” Angela Dudley, a 2011 UMKC graduate, and current Jackson County court clerk illustrated by shaking her head. “Most of what they test is stuff you have to look up, that you would never need to know on the spot.”
             Velarde described the bar as “a hazing ritual, a rite of passage.”
Taking the test elucidated this purpose to me, and I found the experience enlightening, but I still believe that a law license should mean something more than having passed a written test.
            Among the extensive pool of law grads I talked to throughout the last few months, including many I met in Jefferson City at the bar test, few feel prepared to practice law. However, 89% of those who took the test in 2011 passed, according to the, a bar review web site. While most bar takers pass, and thus receive licenses to practice law, most do not feel qualified to do so.
            Many of these graduates believed some sort of adaptation was necessary. Several suggested the third year be transformed to more closely resemble programs for medicine, dentistry and psychology. Students of these professions must complete extensive clinical experience before they are released to fend for themselves or, more accurately, for patients.
These recent Juris Doctorates did not seem to be complaining about their education, because they praised its ability to instill issue spotting, research and analytical skills that will serve them as attorneys. However, they thirst to learn more about performing their daily tasks so that they’re ready before they are released into the wild.  
            The law profession requires, or allows, students to find their own experience while they’re in school and after. While this system does create positive senses of autonomy and competition, it can lead to ineffective attorneys if the job market lacks positions. While some students were unable to find jobs, and thus experience, they still may pass the bar.
            I tried talking to a Washington University School of Law graduate who sat next to me at the bar exam. In response to my questioning about the insufficiency of this test to determine our capabilities as lawyers, he answered that he was counting on poor lawyers passing so that he could get ahead of them. I would have written his name down, but we were not allowed to bring anything into the test.
            Despite this sometimes prevailing attitude, an attorney is meant to be an advocate. A lawyer’s purpose, Dudley explained, is to “Do what a client needs and wants. You do the best you can for your client, provide a service to them.”  
            For a more client-centered approach, graduates requested classes in the technical and practical aspects of lawyering.
            UMKC does have clinics and a writing program available to teach some of these skills, such as a solo practitioner clinic that Anderson regretted not taking, but these classes are optional.  The consensus from recent graduates shows that students want and, think they need, a greater emphasis on clinical experience. They think that law schools should not only offer, but require more clinic hours.  
            Justin Sullivan, a UMKC grad explained his experience in an advanced legal writing course this semester. The class required students to draft letters to fictional clients and attorneys as well as court documents. The class also required participation in a motion for summary judgment.
As Alex Edelman, another UMKC grad explained, “Legal writing needs more resources,” Edelman also thought the writing program at UMKC could be improved by a different teaching method. Now, the teachers give a vague explanation, let students try on their own, then turn in an assignment to be graded. “You can’t just tell someone how to do it by knowing how to do it,” Edelman added.
Sullivan thought the advanced writing course improved upon this issue from the introductory courses. The advanced course, under Professor Aaron House, allowed students a chance to rewrite their drafts to improve their skills and their grades.
However, Sullivan appended, “The direction is unclear and geared towards people with experience. The guys who knock it out in class, have jobs and already do it every day, but I’m not saying you should punish the successful.” Some teacher’s lack of clarity might be meant to encourage and force students to figure problems out for themselves, a skill that attorneys must possess, but students want to know how to do it correctly for sure not matter what “it” is.  
Thus, Edelman stressed his belief that a higher percentage of school funding should be invested in the legal writing program because of the program’s significance in creating useful attorneys. He clarified, “A school’s biggest accomplishment should be in training lawyers, not in scholarship”

A Lawyer's Purpose

A debt collection law firm in Columbia, Missouri hands out the “Shark of the Month” award for employee excellence. While most lawyers try to evade this label, Faber and Brand, LLC has embraced the designation.
            Early on in law school they explained to us that because attorneys are associated with the most negative experiences in people’s lives such as, divorces, personal injuries, property disputes, wrongful firings, personal and commercial bankruptcies and criminal accusations, they are destined to own a negative reputation.
“Most lawyers have very good intentions,” Alex Edelman a University of Missouri—Kansas City (UMKC) graduate explained. “The archetype of the $1,000-suit guy at a large firm is a minority.” Edelman added. Most attorneys are at small practices. According to the American Bar Association web site, a study from 2005 states that only 1% of attorneys worked at a firm with over 100 lawyers while 76% worked at a firm of two to five attorneys.
            A lawyer’s job is, “To protect people’s rights and be an asshole…for whoever needs someone to be an asshole for them,” Tay Schumacher, a UMKC graduate exclaimed curtly. With a job description like Schumacher’s, it’s no wonder that lawyers are viewed so negatively.
A lawyer must be an advocate, do the dirty work, to perform the duties that someone whose emotions are involved is unable to do. But before a lawyer can advocate, she must counsel.
“People just want to be heard, someone to pay attention, to acknowledge that they have a legitimate problem,” Stephanie Anderson, who graduated from UMKC in 2011 and passed the bar the same year explained. The solution, “Depends on the client’s goals, the client’s priorities,” she added. What may be important to one client is not important to another. One client may prefer to have a judge or jury tell them they’re right, and another just wants the problem to go away with as little disturbance as possible, Anderson clarified. While the first client will want to go to court, the second may prefer private negotiations.
Early on in law school they told us that attorneys are gatekeepers of knowledge. Attorneys know how to spot the issues and where to look for answers. Edelman explained that a lawyer’s job is to perform the issue spotting that the public just isn’t trained to do.
After the important variables have been isolated, an attorney must determine the appropriate action, the solution.
“People get so involved in the emotional aspect and don’t know how to proceed,” so a lawyer must, “get the problem to its basic core and go from there,” Anderson testified. She added that many people do not understand the system and that they immediately assume a lawsuit is the best solution, when a personalized letter may be sufficient. Anderson asserted that part of an attorney’s power just comes from awareness of certain resources.
“Lawyers help the world go ‘round,” Chris Hawkins, who intends to work in estate planning claimed. “People need help with estates, trusts, wills and its difficult stuff to do,” Hawkins spoke thoughtfully. Hawkins described how he wants to help people control how their assets are saved and distributed, that he wants to help ensure that his future client’s desires are met even after that are deceased. A client will come to Hawkins, explain to whom and when he wants to pass his land, his money, his stocks, his record collection, his Ty Cobb rookie card. Hawkins will be charged with finding the most appropriate method, but there may not only be one answer.
Trusts and wills can interact with each other with varying results, and there exist countless options that I have never heard of. Hawkins’ specialized knowledge and research capabilities will help him determine a proper course of action, to practice appropriately, although there may be multiple acceptable solutions.  
We use the term practice to describe an attorney’s job, like they use the word practice in medicine, Angela Dudley stated, adding that there’s no one right way to perform lawyerly tasks. One attorney might omit an argument when another attorney chooses to concentrate on it. Even another attorney might vary in how she makes the same argument.  
If nothing else a lawyer brings an air of seriousness to a situation. Hiring a lawyer shows that the client is taking action, Anderson added. “[Then,] it’s not just you; it’s you and an attorney.” The attorney provides backup, the muscle and sometimes the balance.
Lawyers are necessary, Carl Scarborough explained discussing the often frowned-upon criminal defense attorney. “Their role isn’t so much to get the guilty to run free, but to have fairness in the system, to make sure it works properly. “Before I looked down on them as trying to keep scum bags on the street, but now I see the both sides of the argument.”
These attorneys provide a power check to the prosecutor to prevent a drumhead court room, to protect defendants from being railroaded. Thus, as Scarborough defended, an attorney’s presence simply allows the adversarial system to work properly. Each party needs a proponent or one party will be regularly ravaged.
However, many people rightfully complain that lawyers overcomplicate the justice system.
“It’s upsetting to me,” Schumacher stated solemnly, “when people think they know [their rights] and they don’t. Maybe it’s our fault, the court’s fault for making things so convoluted.”
Sarah Werner, a UMKC grad, told an anecdote about several individuals, opposing sides from the Universities of Missouri and Kansas, arguing over who had the first homecoming. Each rival held early homecoming-like celebration and the issue is repeatedly debated.
One party claimed their school said the word “homecoming” first, while the other insisted the word itself did not matter because their side held a homecoming-like gathering that predated the word “homecoming.”  Both claims to the invention are reasonable, but both parties would have made the opposite argument were they on the opposing side.
With attorneys the debate keeps going around in a circle, until a judge or jury makes a decision one way or the other. If both sides have legitimate arguments, then one does not have to be right and the other wrong.  Both could be right. Both could be wrong. The solution is likely to be in the middle in the mess between facts and law and not necessarily with one party or the other.
Catalina Velarde, a UMKC Juris Doctorate stated sadly, “It kills me that sometimes whoever arranges the words the prettiest wins.”


The following stories started as one question: “What is your favorite part of the Constitution?” As my classmates answered, the story cultivated itself. As my sources spoke I found direction, an unmapped course, a winding route of potential. My question and source lists expanded, and a project emerged among the scribbled pages in my haggard notebook.
These posts are editorials I’ve put together to try to tell the story of my 3L class as we walk into an empty job market wracked with accumulating debt. I’ve interviewed fellow classmates and a few other Juris Doctorates who are legally certified attorneys. I thank everyone for taking their time out to talk to me. I had planned to write an entire article but realized I fall unfortunately short in regards to balance.
I wanted to file a complete story, but the Bar came first. I had to complete my primary objective because I signed up and I had no plans to fail. So, I want to put what I’ve compiled, a subjective view of law school, law and lawyers as told by my classmates and myself.
I’ve interviewed mostly recent UMKC grads so the perspective is limited. To finish this story correctly, I need to interview underclassman, potential law students, professors, members of any Board of Law Examiners, practicing attorneys of all ages, disciplines, experiences and jurisdictions, members of the medical field and citizens in general.

Wednesday, July 18, 2012

State of Mind...Under a Week to Go

I went to the law school for an hour today. The building crawled with frantic soon-to-be attorneys, milling about, chatting about a practice test many of them just took.

Loners broke from the pack, hiding silently surrounded by their carrel desks or behind stacks of books upstairs in the back corner of the library. Splinter cells amassed in every room, behind every wall, every window.

Shops were set up. Fortresses had been constructed. Walls of blackletter law barricaded these study-bingers from the rest of the world. Bridgeless moats filled with chomping gators warded off any would-be interrupters.

Some shoulders hunched at computer screens, others laid back on couches or comfortable chairs in the lounge. Books, folders, binders, papers, note cards, pens and highlighters scattered across every table.

Anxiety, fear, intensity, dedication and perseverance dangled thickly in the air. I could smell the mental sweat. I could hear the wheels turning. I could see the effort, the desperation, the determination as they burrowed deeply into their books. 

As for me I switch where I study practically by the hour. I do a session at one coffee shop, a session at home for lunch, an afternoon session at another coffee shop then back home to finish up. The order is not the same each time but you get the idea. The walk from Westport to home to 39th street refreshes my dwindling spirit. The sun, the heat, the sweat recharges a bored, drained mind.

5 hours and 25 minutes under a week from now I will be finished with the bar. I will have completed my obligation as a law student, to myself. Book II will be closed and the epilogue will consist of hurried packing before I return home to start Book III.

I write, I listen to music and I read other material to keep my mind going, to refresh my dehydrated mind.

Can I please get a montage?

Wednesday, July 11, 2012

Just say illegal searches

Before you read this post understand that NOTHING I SAY IS LEGAL ADVICE. Duh, Alex, that's the name of your blog. Well, it's worth repeating since I'm trying to explain some of your rights. I just want you to know that I'm only studying basic law and there are probably elements or exceptions that I don't know about, and I have to cover my own butt when relaying information relating to anything that could be considered close to a legal suggestion. The following is a hypothetical situation intended only for educational purposes. I do not intend to encourage you to break any law.

So you're driving along, maybe a little fast, with a fat sack of reefer in a backpack in your back seat, and an illegal British immigrant and a loaded machine gun in your trunk. I'm not really sure what you're doing, but that's none of my business. You get pulled over by a police officer because your blinker didn't blink when you changed lanes, a perfectly legitimate reason to stop you, but a pain in the ass nonetheless.

Don't freak out. Be polite and answer the officer's questions, but say no more. And if he asks to search your vehicle, you have a Constitutional right to decline. Unless of course, he has probable cause to search. Then you're at his mercy.

Generally, a police officer needs a warrant to search your property (I'll explain warrants another time). However, there a few exceptions. One of these relates to automobiles.

If a police officer has a probable cause, or PC, to believe that a vehicle contains fruits, instrumentalities or evidence of a crime, they may search the whole vehicle and any container that might REASONABLY contain the item for which they had probable cause to search.

What is probable cause? I'm glad you asked.

Probable cause requires trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime.

The officer approaches your window and asks you if you were aware that you didn't signal when you moved back to the right lane after passing a slow driver. Of course you signal, you always signal. I guess your light must be out.

Even though your eyes are clear and you show no sign of wrongdoing, the officer asks what you've been up to, if you have any contraband. You reply politely but sternly, "No sir."

The officer glances at your friend who seems a little nervous, isn't looking at the officer, and your passenger's eyes appear blitzed, red, squinted and hazy. Although the officer can't see your passenger's eyes clearly, he asks to search your car.

YOU CAN SAY NO. Just be polite. DON'T BE A SMARTASS and you can get your ticket and move on your way.

However, this comes to another warrant exception, consent. A warrantless search is valid if the police have a voluntary consent. I'm telling you this because knowledge of the right not to consent is not a prerequisite for voluntariness. IT DOESN'T MATTER WHETHER YOU  KNOW YOU CAN REFUSE CONSENT OR NOT. If you consent to the search and he finds your gun, nugs, and human contraband, well you're going to jail.

Let it be noted that when consent is given, the consenter must have authority to do so.

Let's say your freaked out passenger tells the cop to go ahead and search. Well, if you don't object then the cop can go ahead and scour your vehicle for contraband.

Anyone with an apparent equal right to use or occupy the property may consent to a search, and evidence found may be used against the other owners or occupants. However, an occupant cannot give a valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant.

So, ASSERT YOUR RIGHTS. Politely decline. If the officer asks why, you can tell him you're in a hurry, you can tell him you know your rights, you can tell him any reason you can think of, but as I said before, DON'T BE A SMARTASS. He might imply that you're hiding something. He might straight up ask if you're hiding something, but you should know that your mere refusal to a search is not sufficient grounds for probable cause.

However, if your nervous friends spurts out something about the bag, the gun, or the Brit, then you're sunk. An admission like this is almost certainly sufficient to give a reasonable person the belief that your car contains contraband, so choose your friends wisely.

The scope of the search depends on what your passenger admits to. The officer can search in any container that could hold whatever contraband he reasonably believes you possess. If your passenger admits to the stowaway, then the officer can pretty much only search the trunk, or a portion of the car that could reasonably contain a human being. He could not search the backpack...yet.

However, once the officer finds the illegal immigrant you're going to jail, and he can search the entire car incident to arrest. Before you're secured and may still gain access to the car, the officer can make a protective sweep of the entire area of which you have control (to prevent you from pulling out a weapon and attacking him) which is pretty much the entire car. He can also search the entire passenger area if he reasonably believes that it contains evidence for the offense for which you are being arrested may be found there. I'm not sure if he would have reason to believe the passenger car contained evidence in this case.

After you, your passenger and the stowaway have been taken to jail your automobile will be impounded. At this point the police, if the department has a standard operating procedure, may search your ENTIRE VEHICLE, for inventory purposes (This is done to make sure you don't sue them for conversion, or taking your property. Nice of them, huh?) At this point they'll find the gun and the nugs too and there's nothing you can do about it. It doesn't matter at this point that they weren't looking for that specific contraband.

I hope the previous post has been informative. Lawyers, if I'm wrong, please enlighten us.

In the jungle

Law, elements, and exceptions rise up around me like thick trees, the densely populated, vast expanse of a jungle. I hack through hearsay. I uproot Criminal Procedure. I trip on the ancient low-hanging vines of Property.

I hike, I wander, I wonder, I trek through the depths, through the brush and swamps. The sky eludes me, blacked out by the overhanging limbs, concealed by foliage. No wind, no rain, only a sweaty heat causing my clothes to cling tightly to my skin. I wipe off my brow only to have the droplets replaced within seconds.

I'm surrounded by law, engulfed by its elements, entrenched by exceptions. I force my feet forward. Although I see no light, the only way out is to keep moving. No time to stop. No time to drink. No time to eat. Just keep moving. Just keep moving forward until a sliver of light appears among the foggy shade.

In reality I have barely exercised in days. I'm living off the fried food I pillage from 39th street. My main fuel is caffeine. I have set up camps at a series of coffee houses and restaurants. I can feel my stomach expanding, my face bloating, my cholesterol rising, my physical endurance waning as my mental stamina cultivates.

I don't mean this to sound like Chris Taylor writing home to his grandma in Platoon, but I guess it turned out that way. Okay, maybe I did a little bit, but I feel better now. Thanks.

I'll try to get back to some kind of consistency on here for the next two weeks. Two weeks until the rest of my life.

Sunday, July 1, 2012

The Bar Approaches...A poem

The Bar approaches, the time is near, the trial, the undertaking.

The journey, the struggle to improve our minds, our task we cannot be faking.

A monster, the boss at the end of the game, but jump on his head enough,

Evade his fire, his thrashing tail, and he will later not seem so tough.

Our brains punch-drunk, our minds wired shut, trapped in the laws' depth and darkness,

The blackletter jaws, clamp down on our necks, choking out all the brightness.

But if we put in our time, our rhythm and rhyme, we will grow strong with every hypo.

The monster will cower, all his bitter and sour, he'll be revealed as a lowly old troll.

We'll move past the bridge, a hindrance no longer, a clear path to greener pastures.

So we dig our heels deep, chug, crawl or creep, because this just won't go any faster.

Tuesday, June 26, 2012

Reasons to not enforce a contract... Vanilla Ice, David Bowie and Suge Knight

Hypo: David Bowie calls Vanilla Ice to inform Ice that he wants the rights to Ice's hit "Ice Ice Baby,” because he believes the song directly ripped off his song "Under Pressure." Bowie tells Ice that he knows for a fact that Ice copied the material because he has a witness that was in the recording studio when Ice recorded the song. Bowie doesn't actually have this witness and although Ice knows that the two songs are completely different he agrees to sign an agreement to sign over the rights in order to stay out of a losing lawsuit. Bowie faxes a contract to Ice and Ice signs it. After all, he has plenty of hits coming.

Right after Ice hangs up the phone, Suge Knight bursts into Ice's apartment with two hulking thugs with two hulking handguns ordering that Ice sign "Ice Ice Baby" over to him. Knight believes that Ice stole the music from one of the artists that Knight represents. Ice refuses and tries to explain that he already agreed to turn the rights over to Bowie. Knight, doesn’t hear the explanation and, infuriated, grabs Ice by the neck, pulls him towards the balcony and hangs Ice off the balcony until he agrees to sign the contract that Knight brought.

Analysis: Neither contract would be enforced. Shocking, right? But do you know why? I just found out today.

The contract with Bowie is invalid due to misrepresentation. Misrepresentation requires (1) a statement of "fact" before the contract, (2) by one of the contracting parties or her agent, (3) that is false, and (4) induces the contract.

(1) The statement of fact Bowie made was that he had a witness that Ice stole the material.

(2) Bowie, one of the parties to the contract, made the statement.

(3) The statement was false because Bowie didn't actually have the witness.

(4) Ice agreed to the contract as a result of the misrepresentation. He would not have signed if Bowie had not lied that he had a witness.

The contract with Knight might be a little more obvious. This contract would not be enforced due to physical duress. Ice need only prove that the threat was made and that it caused him to agree. For an agreement or contract to come to fruition, and thus be enforceable, mutual assent or a "meeting of the minds" must occur. This meeting is missing here. The only reason Ice agreed was that he had been hung out the window so his sound mind can't be said to have met that of Knight’s.

Still, in both situations Ice will have to prove that the other parties have unclean hands. This might be easier said than done, and further, Ice might never bring the suit due to fear of the two parties. I hear Bowie is tougher than he looks.

Remedies: If the contracts were considered enforceable then both Bowie and Knight would have rights to remedies from Ice.

Both would probably request specific performance, the exchange of rights to the intellectual property. However, this remedy presents a problem because both cannot own the property so both cannot receive this equitable remedy.

If the Knight contract was considered enforceable then Knight would be considered a bona fide purchaser as long as he didn't know about the previous deal with Bowie. While Ice tried to explain the matter to Knight, he never got the point across so Knight's hands remain clean. Because Knight currently owns the rights, has possession of the contract, it would be unfair to rip them from his fingers so the court won't do that.

Thus, Bowie has a right to remedy by money damages. Bowie would be entitled to expectation damages, a comparison of the dollar value of the performance (the intellectual property's value) with the breach, and the dollar value of the performance with the breach.

Because Bowie has no dollar value without the performance he will be given the intellectual property's fair market value and balance will be restored to the force.

Monday, June 25, 2012

Don't fight the hypo

I've been struggling with the fact that each fact pattern, each question and each answer are told, written and asked for in a vacuum, and during one round of Barbri one of the temps relinquished a valuable piece of advice that I have been wrestling with since, "Don't fight the hypo."

What he meant was to only read the facts as stated in the hypothetical. Don't impute your own. Don't ask, "what if?" because the fact pattern and question provides you with all that is and will ever be in this minute, limited fictional universe.

I have this reflex, innate or trained, to ponder out the "what ifs?," the "but what abouts?" that inevitably occur in a bare-bones-fact pattern. My hand tries to raise, to ask the videotaped professor about the tendons, the nerves, the organs, the muscle and the skin, but these elements of anatomy are irrelevant. If you're given a skeleton, work with a skeleton whether or not it could, in reality, ever have the capacity to walk on its own.

Today the contracts temp expressed the sentiment perfectly, "There are no real world bar questions."

That's it, simply put by a man who has been teaching aspiring lawyers, for about 30 years, how to pass the test that will determine whether or not they are fit to be attorneys, to be responsible for the most important transactions, arguments, occurrences and issues that their clients will ever have to deal with.

I respect that we should be able to work with what we're given, that this skill is valuable in any field, profession or activity, and I might sound like a broken record at this point, but I'm still trying to figure out a good reason as to why the legal profession tests this way.

The bar is set in a fictional universe, one not grounded by gravity nor run by any physical science we know. Each bar, and really each question, lives in its own world, detached from time, detached from space, detached from reality, but the test's job is to determine which graduates are fit to be attorneys. I continue to find difficulty reconciling these two facts.

The only reasonable conclusion I can come up with is that the bar is hard, that they give us this test because it's hard. That, and because they had to do it.

Thursday, June 21, 2012

Law in a vacuum

Vacuum: a space empty of matter. (as defined by Wikipedia)

The Bar forces us to study the law within an enclosed space, a vacuum in which each area of law is separate from each other area of law. Either a question is about torts or criminal law, real property or constitutional law, evidence or conflicts of law.

Today we were lectured on Evidence, which relates to all areas of law in at least some remote way. Even when the issue deals with a contract, commercial paper (whatever that really is) or a separation agreement, the writings involved can invariably end up as evidence in at least a civil action so the documents must be written as such.

Evidence is useless on its own. The subject simply will never come up unless there is some other issue at stake, some question, some point to prove, but on the bar we are given a set of facts, and a few following questions, that specifically lay out the rest of the case in order to teach us evidence alone. I understand this method of education is effective in the first place, but how does isolating this variable really test our abilities to be attorneys?

Even within these main areas we are lectured to view each subsection, each individual issue, as separate from all other issues. For example we were given a hypothetical, similar to the one below, that applied to the best evidence rule, which requires an original writing to be submitted except under a few limited exceptions.

HYPO: Jack Bower claims that he worked 24 hours and spent $15 million in reimbursable expenses. There are time sheets and expense reports that say he only worked 20 hours and had only $10 million in reimbursable expenses. Boss wants to testify that Bower only worked 20 hours and spent only $10 million to be reimbursed, but his only knowledge about the issue comes from the time sheets and expense reports.  Under the best evidence rule can Boss testify to the number of hours and amount of expenses?

The answer is no, he can't because he only knows this information through the time sheets and expense reports and these reports are available to be submitted as evidence.

That makes sense and everything but it ignores what would really happen. To get the information admitted, Boss would be called on to authenticate the reports. Once the documents are authenticated they may be admitted as evidence. He would still be called to testify but only in relation to authentication, the extent that the documents were accurate and kept in the regular course of business. (We discussed authentication in another section. It was not mentioned in relation to this hypothetical in class.)

I know I may be just complaining, but you would be too if you had to study soulless blackletter law all day long. I guess what I'm saying is that it doesn't seem the Bar is testing us on how to be attorneys, just on how well we can memorize the law and then apply it isolated situations.

Law is not a vacuum because life is not a vacuum. These issues do not come up all by themselves, they are intermingled, mixed, mashed, twisted, turned and ground together. A client comes in with a generic case and an attorney's job is to question, to counsel to pull out not only the important but the collateral facts, to find and work the angles in order to find the best way to represent his/her client.

Each criminal claim might be accompanied by a tort claim. A real property claim may give rise to some issue of Constitutional law.

A client will not walk into your office asking if he has a prescriptive or implied easement on his neighbor's property and that he may be sued for nuisance in addition to being arrested for this supposed nuisance, but that the nuisance is just his invocation of his First Amendment freedom of speech rights. He'll walk in, late, and say that he got this letter from his neighbor's lawyer telling him that he can't use the driveway that runs across his neighbor's property connecting him with the only road to town because his neighbor is angry that he and his band have been playing music that the the neighbor considers obscene and that the neighbor reported the matter to the police.

This hypothetical deals with several issues of law. On the bar though, these facts would never be presented together. The issues would never be presented together. I may be stretching the hypo a bit, but, I'm just trying to make a point.

If this test purports to determine who gets  a license and who doesn't should it not have something to do with the actual practice of law? Should the test that determines whether or not we are fit to be attorneys, to handle some of the most important facts and circumstances that occur in people's lives, not have some actual relation to those real lives?

Tuesday, June 19, 2012


During the Barbri lectures my mind tends to drift. I am almost certain this symptom is a common reaction to three hour class sessions of any kind, let alone plain blackletter law. One subject that I continually ponder is education.

In the last month we have been provided a sampling of teaching styles, a variety of personalities and abilities. Each professor uses his or her traits, although some don't seem to have much to work with, to illustrate, to explain a variety of legal concepts. Some instruct with vigor, others with detail. Some use hand motions and sound effects, to keep, or draw, our attention and to stick the material into our memory. A few simply drone, buzzing for hours, reading their outlines verbatim, and others use repetitive repetition, like salesman on a late night infomercial, really driving the point, nailing it down, screwing it in, gluing it shut and plastering it with duct tape.

For me though, the most effective interim professors have been those that explain why. The temps who explain the background, the details, the reason, the purpose, the policy, the point of the law, are those that have the greatest effect on me. There's something about learning why that places, perfectly,
a piece of information in my mind.

These teachers do not simply lecture, they do not simply preach the tenets but they express the goals, the background behind the rules. Since I was a kid, I've always wondered, and asked, why. When I understand the why, the policy, then the how, the what, the where, the who and the when seem to come together.

The why gives me understanding, not mere knowledge. I've found that in general the big difference between knowing and understanding is the why. I don't know if other people are the same, as we all learn differently, but it seems that understanding connects me with a fact, or in this case a law, and when my mind connects, my mind memorizes.

When they don't explain why I'm left wondering the point, and then I miss it. Well, if nothing else, I've figured out how I learn, so I guess I'll get back to doing that.

Wednesday, June 13, 2012

Policy Argument: An Axe to Grind About A Secured Creditor Priority

(Please try to make it to the end. I had to explain the law before I could grind my axe.)

Today we spent about three and half hours in a lecture about secured transactions, probably the most boring and complicated material I have dealt with other the tax law. I took secured transactions this past semester and I guess I didn't learn much. Secured transactions deal with those relationships between debtors and creditors, and also those among various types of creditors.

I want to complain about a situation in which a creditor can collect property from a third-party purchaser who bought security-interest-encumbered property without knowing of the encumbrance, but in order to do so, in case someone who reads this is not currently deep in the law, I guess I should explain something about secured transactions.

"A secured transaction is a transaction intended to create a security interest in personal property or fixtures. it generally involve a sale on credit or a loan in which the seller or the lender obtains a lien on some or all of the debtor's property as security payment," reads the Moll outline from Barbri's Missouri Lecture Handouts.

All "all caps" definitions in this post are also from this lecture handout.

DEBTOR: The person who owes a payment or performance of the obligation secured.
SECURED PARTY: A lender, seller or other person in whose favor there is a security interest.
SECURITY AGREEMENT: the agreement between the debtor and the secured party that creates a security interest.
SECURITY INTEREST: An interest in personal property or fixtures which secures payment or performance of an obligation. It is a contingent property interest in the debtor's collateral that the debt grants to the creditor. When the contingency, which is default, occurs, the property interest springs to life and the creditor has rights in the debtor's collateral.

There are several types of secured creditors who have achieved security through various methods and at various times, but these specifics are not necessary fort the hypothetical from which my complaint stems.

The Bogarts purchased a sailboat with money borrowed from State Bank, which took a security interest in the sailboat and promptly perfected. (My note: Perfection is a system of methods used to protect the secured party against third parties, including purchasers like Nudnik, and other secured creditors.) Three months later, the Bogarts sold the sailboat to Mabel's Marina, which sells new and used boats. A month  later, the sailboat was sold to Nudnik. State Bank has tracked down the sailboat, and seeks to enforce its security interest in the sailboat which is in Nudnik's hands. Can it enforce its security interest in the sailboat?

Answer: State Bank can repossess the boat from Nudnik even though he did not owe them a cent and even though did he did not have any knowledge that the boat was encumbered by State Bank's security interest. Nudnik's only recourse is to sue Mabel's Marina for the loss. (Am I the only person who thinks this result is a bit unfair for a good-faith purchaser. Am I the only one who thinks this pushes the scale a little too heavily for the creditor?)

The rationalization comes from a general rule for UNAUTHORIZED SALES as stated in the lecture handout: A buyer in the ordinary course of business (other than a person buying farm products from a person engaged in farming operations) takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.

For a third-party purchaser, like Nudnik, to purchase the property unencumbered by the security interest,
BUYER IN THE ORDINARY COURSE: A person who buys goods in good faith, without knowledge that the sale violates the rights of another person (usually a secured party) in the goods, and in the ordinary course from a person in the business of selling goods of that kind.

So, the basic elements for a third-party purchaser to obtain security-interest-encumbered property free of the security interest are: 1. that the property was purchased in the ordinary course of business, 2. in good faith, 3. the security interest was created by the seller.
Here, Mabel's Marina was in the business of selling new and used boats to consumers. Nudnik, a consumer, purchased the sailboat out of Mabel's inventory so the first element is satisfied.

Nudnik did not know anything about the security interest that encumbered the property when he purchased it so the second element is satisfied. (Why would he voluntarily purchase property with another person's security interest attached?)

However, Nudnik fails the test because the security interest was not created by the seller, Mabel's Marina. Here, Nudnik loses his boat, and the money he spent on it, because a party, two degrees away, signed the boat off as collateral. Nudnik, with no opportunity to learn about the security interest, was completely in the dark as to the encumbrance, but still his property is taken away.

Even if he can get the money back from Mabel's, Nudnik has to get an attorney, pay the attorney and possibly deal with a lengthy, expensive and tedious legal process. Besides that, Nudnik misses out on the all the fun he could have had on his boat until he obtains a judgement sufficient to purchase a new one, and we all know, as the Beatles sang in "She's Leaving Home," "Fun is the one thing that money can't buy."

I'm going to go a little further. Let's say Nudnik had asked this girl out, one he's been in love with for years and, having saved up enough money to buy this boat, he finally mustered up the courage to ask her out for a picnic out on the water. Well, now, no boat, no date. She thinks he's a liar and she'll never go out with him again. He's lost a chance at love, and I think everyone knows you cannot sue for actual performance or replevin in such a case.

Yes, I'm adding facts to the equation, but nothing that would effect the legal relevance. The point I'm trying to make is that the law assigns a negative result on someone who could not possibly expect, or know of, the risk he took. Nudnik bought from a boat dealer and, no facts suggest that he should have or could have been aware of State Bank's security interest.

This risk should be on the creditor, who deals in this sort of business and who has a right not to loan to any questionable characters. State Bank had a choice who it dealt with so if it loans to someone like Bogarts who sold the collateral without permission, it should bear the risk, not a party who had never met either the debtor or the creditor.

Also, the creditor, almost as a rule, has deeper pockets than a general consumer. So, not only is the risk put on a party with less knowledge and less experience, but on the party with less ability or stability to shoulder the load.

I'll leave you with a quote from the lecturer this morning, Professor Douglas K. Moll and, assuming you made it this far, I'd like you to ponder it. "Moral implications have nothing to do with the law."

Tuesday, June 12, 2012

Fiduciary Duties...An attempted explanation

This morning Barbri sent Professor Michael Closen to lecture about Agency and Partnership. Closen was an effective teacher, having written Bar exam questions in several states, with an effective outline for both learning the material and for studying it later.

Closen stressed certain areas of Agency and Partnership law as particularly important, one of which was fiduciary duties. He explained the importance of our learning fiduciary duties because of the subject's prevalence on the bar. He also explained that this subject regularly appears on bar exams because the subject matter is actually important to attorney's in real life.

What is a fiduciary?
A fiduciary duty is a duty owed by an agent to his principal. According to my outline, the law holds fiduciary interests in high regard and rigorously enforces fiduciary duties.

An agent is someone who is an employee or independent contractor for a principal. The principal pays the agent to do some  kind of work, whether salaried, in the case of employees, or by piecework, hourly or some other means in the case of independent contractors. Independent contractors are not necessarily agents, but if independent contractors are held to be/considered agents, then they owe the same fiduciary duties to principal whether as a general employee.

If  Owner of Market hires Manager to run Market then Owner is the principal and Manager is the agent. This case refers to an employment relationship. If X hires hires Y to clean re-roof his home and only to re-roof his home, then X is the principal and Y is the agent. This case refers to an independent contractor situation.

Fiduciary Duties
Duty of LOYALTY, duty of OBEDIENCE, duty of CARE, duty to ACCOUNT, Duty NOT TO COMPETE with principal & NOT TO BE A DUAL AGENT.

The agent must place the principal's interests first, foremost and exclusive to all other interests (including the agent's own interest, such as in self-dealing). The agent cannot benefit in a conflict of interest fashion while in service of the principal.

Example: A is hired to purchase a plot of land for P but instead purchases the land for himself. A then sells the land to X for a profit. This act breaches the duty of loyalty because A took from P the investment opportunity that P had hired A to perform. However, A could have prevented his breach of duty by making full disclosure that he was going to buy the land himself and if he offered P the chance to buy the lot for a reasonable time.

(I'm not sure what reasonable means. The term "reasonable" comes up all the time in many types of law. The objective standard presented by "reasonable" is a legal fiction with no specific definition so it is something for the jury to decide in any given situation.)

This one is easy. The agent must obey the reasonable instructions of the principal. The agent has a responsibility to do the job he was hired to do.

Example of a breach: P hires A to run Shop. P orders A to deal with X to purchase widgets. A purchases equal-quality widgets from Y at a substantially higher price even though X had plenty of widgets available. A's act of disobedience was unreasonable under the circumstances because he could have contracted with X to save money as he was told.

Example of not-a-breach: P hires A to run the same shop. P orders A to murder X and steal the widgets. This request is not reasonable because, not only is it out of the scope of A's duties, but the act is illegal. Illegal acts are presumptively unreasonable so no breach has occurred.

The agent must exercise reasonable care in performing functions for the principal.

Example of a breach: P hires A to run Shop. P tells A to contract to purchase widgets at the best price he can find. X calls to solicit widgets right after A gets off the phone with P. X's widgets cost $100/widget more than Y's widgets cost even though the widgets are comparable. A did not do any research or shopping around, but immediately contracted to purchase widgets from X.

A has exercised his duty of care because he did not even try to find cheaper widgets.

Example of not-a-breach: P gives A the same instructions as above. X calls to solicit widgets and A tells him he will call back to confirm the purchase later. A calls Y, Z, L, F and M, none of which can provide him with a cheaper price for comparable widgets than X. Because, he needs to order the widgets that day to fill an order to C, A contracts with X to purchase widgets. R calls the next day to solicit widgets at a substantially cheaper price than X.

Here, A has performed the duty of care because he made a reasonable effort to find less expensive widgets in the time he was allotted to perform the task.

The agent must account to the principal for money and property received by the agent in the course of agency functioning.

Example: A is regularly required to fly for his work under P. P pays for the flight but A is rewarded the frequent flier miles.

If A does not report his frequent flier miles to P, then he has breached his duty to account.

If A reports his frequent flier miles to P, then he has not breached his duty to account.

The agent must NOT compete with the principal, and the agent cannot serve as a dual agent for two principals (unless the agent has disclosed the proposed dual representation to both principals and has obtained their consent to such dual representation).

Example: A is hired by P to contract for the purchase of land in Constantinople. X hires A to sell land in Constantinople.

Here, A would be a dual agent to contracting parties, and would violate his duty not to be a dual agent to both parties, unless he made full disclosure to each party. He would have to explain to each party that he was simultaneously representing the other party in the transaction, and both parties would have to give consent.

Example: A is hired to purchase a plot of land for P but instead purchase the land for himself. A then sells the land to X for a profit. This act breached the duty of loyalty because A took from P the investment opportunity that P had hired A to perform. However, A could have prevented his breach of duty by making full disclosure that he was going to buy the land himself and if he offered P the chance to buy the lot for a reasonable time.

Here, A has breached his duty not to compete with P by buying the land for himself that he was hired to buy for P.

But Alex, isn't that the same hypothetical from duty of obedience? Why yes it is. I'm glad you asked.

The duty of obedience is an umbrella duty that will tack on to or encompass any other duty. Closen explained that if on the Bar Exam there is one breach of duty then there will be two breaches, one for the initial/specific breach, in this case the breach of the duty not to compete, and the second for breach of obedience.

Monday, June 11, 2012

Barbri at home

I know a handful of my classmates have been just watching the Barbri lectures at home because they find the power to control their breaks to be comfortable. I guess this works for some people but there's no way I can do this.

As a result of my 2:30 am arrival I didn't make it to class this morning and because I woke up with a barbecue jones, I didn't get started until late this afternoon, although I did have a wonderful lunch with a good friend.

I'm currently trying to get through the Barbri lectures on my own schedule and I keep stopping. I continue to be distracted, by the Internet, by writing and by my own short attention span.

I cannot miss another one of these lectures. I require the structure that the classroom environment provides. I must be cut off from the Internet, that never-ending playground of procrastination, and from everything but the material I'm studying or I may not learn it.

This post itself is a product of such procrastination, the distractions that the World Wide Web provides.
While this started as an activity to fill the 10-minute void between Barbri sections, it has now become a tool by which I put off the painfully mundane lecture that waits for me. I've only got one left, another hour until I can do something else, maybe take a break from the law if that were possible.

"Oh, I'll do it later. I don't want to do it now."

Well, Alex, its later. Get back to work.

Swimming in the law

I didn't get home until about 2:30 am last night because I spent yesterday at a friend's cabin outside of Jefferson City. I really needed a day like yesterday, the water, the trees, the wind, the sky and the people. I had the chance to converse with old friends and new. I'm thankful for days like yesterday, days that refill my cup, or at least top it off.

However, hypotheticals kept popping in my head all day long. Every so often I'd ask Abby Medin, a Washington Law School grad, fellow Barbri student, friend and birthday-girl, what she thought about a fact pattern that happened to occur in general conversation. Of course it was usually necessary to tweak a story to give a legitimate fact pattern.

"Hey, Abby, would that have been considered an implied easement if the Brunner's stopped giving them permission to store the tractor?" I'd ask. "Would the neighbors have rights to enforce the easement?"

In this particular situation she referred me to her father, Ron Medin, who is actually an attorney. The answer he gave me was correct and practical, which doesn't help me at all for the Bar Exam as the Bar seems to be located in a theoretical universe akin to Marvel, D.C. or Kevin Smith's Jay and Silent Bob Universe.

My constant hypothesizing had to be annoying but my brain wouldn't shut off so I really didn't have a choice. I guess I could have kept it to myself but I really wanted to know the answers and I seem to learn through conversation. I just feel bad for everyone who had to listen to me.

Since Bar prep started I've been gradually getting deeper into the law. At first I walked in knee deep, splashed the rest of me to get used to the cold. About a week ago the water was at my waist and I think I might have just dived in. I'm swimming in it and I think I need to get a snorkel. In another week or two I'm going to need scuba gear and come July I'll be in the market for a submarine.

Law and policy is overtaking all space in my mind but for the decent section composed entirely of barbecue sauce and potatoes. To anyone who encounters me for the next six or so weeks, beware, although I don't know how much I'm going to get out.

Friday, June 8, 2012

"If it was easy everyone would do it."

Since I last posted we've gone through double torts, wills and double doses of property. Each day consists of three and a half hours of class broken up into three sections with two 10 minute breaks.

I have notes that I took on the side in order to make some blog posts but between multiple choice practice tests, practice essays, reading the outlines before class and AMP questions when it works. (BTW after I finished posting about AMP the last time it shut down mid-question.)

This process is redundant and difficult. I do not concentrate well when I'm only reading, when I'm trying to memorize so this task has been difficult. I guess that's a main reason I want to go into journalism, to interview, to dig, to write. It's not like lawyers have to memorize much but I do know that dealing with the exact same few laws every day would drive me nuts so the fact that we cover a different aspect of law every day keeps be into it, keeps me awake, keeps me alive.

I've heard that the Bar test has nothing to do with being a lawyer and that seems to be the case. However, I do get why the profession sees fit to use such a test to regulate who gets in the club. It's not because you need to memorize more than a few laws and the rules of evidence, if you're a trial lawyer, but because it's hard.

As Tom Hanks explained as Jimmy Dugan in A League of Their Own, "If it was easy then everyone would do it." The Bar is the last weeding out process, to separate the men from the boys, the women from the girls, those who care enough from those who don't, not those who are smart enough from those who aren't. If you made it this far you can make if you try, if you do the work.

Well, there's that, and there's the fact that every other lawyer had to do it so why should they change it now? Tradition. Maybe there's a better way, but why look for it?

"I had to go through that pain in the ass so why shouldn't they?"

Maybe there's a way where we could actually make sure attorneys know what they're doing before they're issued a license, released in the wild to interfere with people's lives, the most important situations their clients will ever have to deal with. Maybe we could create a law school culture where students learn to be lawyers, not just to think like lawyers.

Just think about this; Would you want a doctor who has only studied medical theory, who has only performed a few dissections, who has only taped up a few artificial wounds?

Thursday, May 31, 2012

Individual Liberties..."Prisoners always lose"

During our Barbri lecture on Individual liberties the "professor," which I put in quotes because he was recorded and is being broadcast to our classroom, gave us a tip that "prisoners always lose."

For the bar, and presumably in real life, if there is a claim for deprivation of liberty then the prisoners always lose.

So for instance:

Prisoner: "My rights are being violated by because locked in a cell all the time."
Court: "Too bad. Next." (Okay, this one makes sense.)

Prisoner: "My rights are being violated because I'm being denied access to conjugal visits."
Court: "Too bad. Next." (This one is a little more questionable being that few urges are more natural than the desire for sexual contact.)

Prisoner: "My rights are being violated because I am raped repeatedly while the, guards, who are hired by private business in some states, do nothing about it."
Court: "Too bad. Next."

Levels of Scrutiny for Constitutional liberties

The Supreme Court uses several different "levels of scrutiny" to analyze whether individual liberties have been violated. The level of scrutiny used is determined by how strong of a liberty interest is at stake. The levels of scrutiny are the Rational basis test, intermediate scrutiny, strict scrutiny and the Undue burden test.

Rational Basis Test
The rational basis test states that a law will be upheld if it is rationally related to a legitimate government purpose. The challenger, the person complaining of a right's violation, in such a case has the burden of proof to show either that there is no conceivable legitimate purpose or that the law is not rationally related to it. Thus, the law's actual purpose does not need to be legitimate so last as  there is some possible legitimate use for the law. The government will almost always win such a case.

The rational basis test applies to non-fundamental rights such as:
right to practice a trade or profession, the right to physician-assisted death (this right has been outright denied), and a right to an education.

This test is used for laws affecting economic rights like the right to property.

Intermediate Scrutiny:
Under intermediate scrutiny a law will be upheld if it is substantially related to an important government purpose. The government has the burden of proof under this test. The actual purpose, a very good reason, not just some imagined one, must serve a legitimate government goal.

An example of cases that use intermediate scrutiny are the right to same-gender sexual relations. The Court in Lawrence v. Texas, which heard this issue, did not specifically say "intermediate scrutiny," but the explanation leads us to believe that's what they meant.

Strict Scrutiny
Under strict scrutiny a law will be upheld if the law is necessary to achieve a compelling government purpose. Here too, the government has the burden of proof. The Court will only apply the law's actual purpose and the law must have a strong purpose to carry out. The government usually loses these cases.

Strict scrutiny applies to rights considered to be fundamental such as:
right to marry, right to procreate, right to custody of children, right to keep the family together, right to control raising of children, right to purchase and use contraceptives (thank goodness), right to travel (covered under the Equal Protections Clause and Privileges and Immunities Clause), Right to Vote (EPC and P&I), Freedom of Speech (1st Amendment), Freedom of Association (1st), Free exercise of religion (1st, unless the law is one of neutral general applicability or if the Court doesn't approve of your religion).

The Undue Burden Test
This test was developed in Planned Parenthood v. Casey which changed the scrutiny for abortion to the undue burden test from strict scrutiny as decided in Roe v. Wade.

Under the undue burden test, prior to viability, states cannot prohibit abortions, but may regulate them so long as the regulations do not create an undue burden on the ability to obtain abortions.
This test is an enigma that only seems to apply to abortion cases.

Examples of Court decisions under the undue burden test:
A requirement for a 24-hour waiting period for abortions is not an undue burden.
A requirement that abortions be performed by licensed physicians is not an undue burden.
The prohibition of "partial birth abortions" is not an undue burden.