Global Economic Trend Analysis: December 2007

Why Are Law Professors So Unhappy? -- Part Three

My post last Friday on Why Are Law Professors So Unhappy? -- Part Two has attracted a lot of commentary in the law prof blogosphere:

Stephen Bainbridge (UCLA), Are Law Professors Unhappy? And, If So, Why? (Business Associations Blog)
Peter Black (Queensland), Are Legal Academics Miserable? (Peter Black's Freedom to Differ)
Eric Fink (Elon), Taking Stock, and Finding a Bull Market (Debris)
Dave Hoffman (Temple), Bainbridge on Law Professor Well-Being (Concurring Opinions)
Brian Leiter (Texas): Are Law Professors Unhappy? (Leiter's Law School Reports)
Glenn Reynolds (Tennessee), Are Law Professors Unhappy? Not This One! (InstaPundit)
Tom Smith (San Diego), Why Are Law Professors (and Everybody Else) Unhappy? (The Right Coast)
Ilya Somin (George Mason), Are Law Professors Miserable, and If So Why? (The Volokh Conspiracy)
Ilya Somin (George Mason), Some Evidence on Law Professors' Relative Job Satisfaction (The Volokh Conspiracy)

Much of the commentary argues that law professors have a great job and that most are happy with their jobs. I agree with both points -- my modest question is that, given how great this job is, why are some law professors so unhappy?

One possibility is that some may expect too much out of their jobs. Just as we can make idols out of our spouses, children, friends, fitness, houses, investment and retirement accounts, etc., pinning our happiness on our jobs is doomed to fail. My men's group recently read this great book on the proper place of work in our lives.

Another possibility is that this commenter is right:

Law professors blogging about their misery. Even your mother thinks you are a whiny little baby. Face it. Nobody cares. Suck it up. Life is tough. Wear a cup, and STFU.

Update:

Kent's Imperative: The Miserable Professoriat
Ilya Somin (George Mason), The Volokh Conspiracy: Law Professor Misery Roundup
Jeff Yates (Georgia), Voir Dire: Caron's Roundup on Why Professors Are So Unhappy

Cross-posted on TaxProf Blog.

Briefs Filed with New Hampshire Supreme Court

From the Daniel J. Riley Legal Defense website.

State Court, Appeal, Opening Brief, Petition for Writ of Habeas Corpus

State Court, Appeal, Amicus Curiae Brief Supporting Petition for Writ of Habeas Corpus

Why Are Law Professors So Unhappy? -- Part Two

I previously blogged Tax Prof Michael Livingston's answer to the question Why Are Law Professors So Edgy?:

A friend of mine has come up with a novel explanation as to why law professors, who would seem to have a pretty privileged life, are so persistently uneasy. ... [T]he professoriate ... is one of the few activities that is (a) very competitive, (b) primarily personal (that is, noncooperative) in nature, and (c) almost entirely devoid of objective standards that might be used to measure success or failure.

A new book by Patrick Lencioni, The Three Signs of a Miserable Job (2007), supports this analysis:

The first sign of a miserable job is anonymity, which is the feeling that employees get when they realize that their manager has little interest in them a human being and that they know little about their lives, their aspirations and their interests.
The second sign is irrelevance, which takes root when employees cannot see how their job makes a difference in the lives of others. Every employee needs to know that the work they do impacts someone’s life--a customer, a co-worker, even a supervisor--in one way or another.
The third sign is something I call "immeasurement," which is the inability of employees to assess for themselves their contribution or success. Employees who have no means of measuring how well they are doing on a given day or in a given week, must rely on the subjective opinions of others, usually their managers’, to gauge their progress or contribution.

Cross-posted on TaxProf Blog.

Massachusetts Appellate Cases of Last Twenty Years Now Free Online

The Massachusetts Trial Court Law Libraries blog, Massachusetts Law Updates, reported here today that the Massachusetts Trial Court Law Libraries now provide online, for free to all, each and every Massachusetts appellate case, from 1986-1996, here at Masscases.com, in supplement to the effort of Massachusetts Lawyers Weekly, which already provides all Massachusetts appellate cases from 1997 to date (also free to all) on its website here. As a result, now all of the past twenty years of Massachusetts appellate cases, both Court of Appeals and Supreme Judicial Court opinions, are easily accessible for free to all online at these two websites.

"Late last summer, we surveyed our users to find out what legal information you would find most useful online. Over 68% of you wanted Massachusetts cases from the past 20 years. Cases from 1997 to date are already available on the web from Lawyers' Weekly, so over the past five months, the seventeen Trial Court Law Libraries have worked together to prepare a group of older Mass. cases to mount on the web. We are pleased to announce the availability of all Supreme Judicial Court and Mass. Appeals Court cases from 1986-1996 at http://masscases.com. Cases are accessible by citation, case name, or through a Google custom search on the site. The collection also includes hundreds of the most-cited older Mass. cases...."

For information about Massachusetts divorce and family law, see Law Offices of Steven Ballard.

Divorced Parents Do As Well As Married Parents, Canadian Study Suggests

Thanks to this recent California Divorce and Family Law blog post for pointing me to the following LiveScience article, by Jeanna Bryner, about the results of a recent Canadian study which suggests that divorced parents may be just as good at parenting their kids as married parents are: Study: Divorced Parents Do a Good Job - By Jeanna Bryner, LiveScience.

"Divorced parents do just as good a job as married couples in raising kids, a new study claims.

This new research overturns a commonly held belief that families fractured by divorced parents become inferior havens for children compared with stable homes.

'My findings that parenting practices are unrelated to divorce appear to fly in the face of accepted wisdom,' said Lisa Strohschein, a sociologist at the University of Alberta in Canada.

Some divorced couples may overcompensate for a split-up by focusing more attention on their kids, which could partially explain why divorced and married households scored similar child-caring marks.

'Some parents may overcompensate and be extra-conscientious, and there are definitely some parents who do have problems parenting afterwards,' Strohschein told LiveScience. 'But on average, parents don't change their behavior.'

Strohschein examined data collected as part of the National Longitudinal Survey of Children and Youth (NSLCY) in 1994 and 1996. The surveys followed about 5,000 Canadian children living in two-parent households as of 1994 and compared changes in parenting practices among the 200 households with subsequent divorces and those that remained intact...."

For information about Massachusetts divorce and family law, see the Divorce & Family Law Page, Law Offices of Steven Ballard.

Ron Paul Explains What Real Terrorism Is.

In Search of the Kinder and Gentler Divorce: Mediation and Collaborative Divorce vs. "Traditional" Divorce

What is the best way to get a divorce? It appears there are more options these days than ever. What used to be called simply "divorce" is now being labeled "traditional divorce" as purportedly new methods of resolving divorce disputes are increasingly being promoted, through marketing efforts which are surfacing throughout the media.

Everywhere I turn, I am reading articles about what advocates tout as alternatives to "traditional divorce." Most of these articles appear to be warmed-over press releases from proponents of the purportedly new methods of divorce, including mediation (which is not really new but which has received a great deal of recent attention in the media), and that latest flavor of the month, which is known as "collaborative law" or "collaborative divorce." Mediation and collaborative law may be the right choice for some divorcing individuals, but they will definitely be the wrong choice for many others.

On December 19, the following article, by Associated Press writer David Crary, appeared everywhere, or at least in two of the many reading spaces I regularly visit, namely, the Worcester Telegram and Gazette - Worcester Telegram & Gazette: "Divorce doesn’t have to mean going to war in court; Collaborative approach or mediation replacing more costly litigation," By David Crary, Associated Press, December 19, 2007 - and Findlaw.com. This Associated Press article is a great place to start if you want to know something about collaborative law and particularly if you want to know how its champions are promoting it.

To get a more balanced perspective, however, you should also read Caryn Tamber's recent article in the Maryland legal periodical, the Maryland Daily Record, Maryland Daily Record: "Proponents love it, but traditional divorce lawyers see little use for ‘collaborative divorce’" by Caryn Tamber, which examines some of the most troubling problems, both practical and ethical, with the collaborative law method, and projects a helpful spotlight on the inflated claims and hype surrounding collaborative law.

Last week, when I first saw the AP article in the online version of the Worcester Telegram and Gazette, I also did the accompanying online collaborative law poll on that website (see below). This poll had only a small sample of respondents (60 including me) at the time I did the poll to get the results you see here. Nevertheless, these results, which show far less faith in the success of collaborative law than the accompanying article does, may be closer to the truth than the article is. Of course, neither the poll nor the article is scientific, and neither provides the answer to the question of whether collaborative law will be successful in any given case.

"STAY OUT OF COURT!" EVERYBODY SAYS

Most people, including even "traditional" divorce litigators like me, are fond of saying it is best to resolve differences and settle divorces "out of court." Indeed, I think lawyers are the most likely to want to avoid personally ending up in a strange court, just as doctors are perhaps most likely to fear landing in a strange hospital, because lawyers and doctors are most aware of all the things that can and do go wrong in their respective arenas.

Yes, it's true that we should try to stay out of court whenever possible. But what do we mean when we say that? It's not as simple as is often imagined. Divorce is a legal process that, at least to some degree, must be handled in court. At a minimum, there must be approval by the court of the divorce agreement of the parties, after mediation or some other process, whether involving litigation or not, has led to such an agreement. Furthermore, divorce is also a process that almost always requires some form of negotiating, involving compromise and mediation of some sort, and ultimately settlement, whether it is through "traditional divorce" or "collaborative divorce" or "mediation" and whether issues are hotly contested and litigated or not.

It is the rare case on which nothing is agreed upon and everything is determined by a trial. In fact, it is the rare case, even among the hotly litigated ones, that results in any trial at all. However, most divorce cases actually do end up "in court" for at least one or two contested hearings, before final resolution of the divorce is reached by agreement of the parties.

I always ask prospective clients who have come to me if they have attempted family counseling to save their marriage, and if they have attempted mediation or other "outside of court" methods to resolve their marital disputes. Most of them say either that they have indeed already done so, and it was a waste of time and money,or that they have not done so, as it would have been a waste of time and money, or that the other party would not agree to do so.

As my law practice does not offer mediation services, but only "traditional" divorce, I am more likely to encounter people who have the more difficult problems that require some litigation of various issues in court. Most people who come to see me are indeed in that very uncomfortable, unfortunate situation - that is, they will need to attend one or more hearings in court, even though they will most likely never need a full-blown trial.

It is great when people can be mature and "divorce well," but that is not often the case. To understand why, you must simply consider that divorce for most is inherently a deeply personal, painful, and unwelcome disruption. Even "no-fault" divorce is described as an "irretrievable breakdown of the marriage" to use the Massachusetts legal language, as divorce involves the severing of a most important relationship that affects all aspects of a married person's life. Consequently, there is certainly some truth to the cliché "criminal defense lawyers handle bad people on their best behavior, and divorce lawyers handle good people on their worst behavior." (I should know, as in my practice, I handle both criminal defense and family law. But I would actually amend that cliché as follows: Divorce lawyers handle all kinds of people on their worst behavior.)

WHEN MEDIATION & COLLABORATIVE DIVORCE WON'T WORK

And, despite what you may read to the contrary in some of the articles on this subject, it is not only the toughest cases - involving mental health issues or accusations of abuse - in which parties to divorce are unsuitable for collaborative divorce or mediation. All it takes is for one of the two parties to a divorce to be very angry, confused, or unreasonable, and you have a situation in which the so-called "kinder and gentler" means of divorce (mediation and collaborative divorce) either won't work, or will actually both not work and cost litigants more time and money than "traditional divorce" as the parties will ultimately have to use both methods, one followed by the other.

And what is so inherently expensive and necessarily vexatious about the traditional divorce process, anyway? In Massachusetts, the divorce procedure, for contested divorce, has some built-in provisions to encourage parties to resolve their disputes "out of court": there is a six-month waiting period after the filing of a contested action for divorce before one may mark the case for a pretrial conference.

Before the pretrial conference, at which a trial date is set if the case has still not been settled by that point, there must be a four-way meeting, in which both parties and their attorneys are required to sit down and try to resolve every issue in the divorce. At any point in the litigation of a contested divorce case, the parties and their attorneys may decide to have a four-way meeting even when not required, or otherwise resolve their divorce through negotiation between the attorneys, and settle the case, much as would a couple through mediation or collaborative law.

In fact, in many of my divorce cases, which are often litigated to some degree as contested cases in court, at least one party frequently chooses not to do complete discovery, or otherwise chooses not to do all that is presumed to be required in litigated cases, either out of the belief that there is full knowledge and disclosure of relevant information needed about the other party, or on account of some degree of trust of the other side regarding basic issues or information. That is so even though there may nonetheless be one or two difficult issues to resolve, and thus there remains a need for the pressure of litigation, and the uncertainties of a pending trial, to help bring the other side to the negotiating table before any trial actually takes place.

In collaborative law, the lawyers agree at the outset not to litigate, and voluntarily exchange information, rather than engage in formal discovery, all with a view toward reaching an agreement that will preclude the need for litigation in court. But many times, such cooperation and efficiency is similarly possible between parties and their attorneys in traditional divorce cases, in which a contested divorce complaint is pending in court. In my experience, a lot of these so-called traditional divorce cases end up being as cheap or cheaper than they would be if handled by lawyers formally trained in collaborative law, and are often conducted in a much similar manner, although without the built-in difficulties of formally renouncing many of the normal tools of the attorney's trade, as in collaborative law.

There are so many variables in divorces, and really, any good divorce lawyer should be able to handle divorce in a collaborative law manner, or in a hotly litigated manner, as the case may require. That is just good lawyering, in my view. I am indeed very impressed with some of those who are highly skilled in mediation and collaborative law, as the more tools in an attorney's toolkit, the better. And on those occasions when my prospective clients do seem to be good prospects for mediation (but not collaborative law, which I think can be performed quite well by me or by any other good "traditional" divorce lawyer), I send them to a good divorce lawyer who practices mediation.

WHATEVER YOU DO, CONSULT A DIVORCE LAWYER FIRST

I would only say, at the risk of sounding self-serving, that one should avoid divorce mediators who are not lawyers. In my experience, such mediators have often misled clients in applying the law to the facts of their cases. I have had more than one case in which a psychologist acting as a mediator helped divorcing individuals to reach an agreement, only to have one of the parties discover after going to an attorney (like me) "just to check over the agreement" that the agreement had incorrectly calculated child support, or otherwise had included provisions which were really not "fair" to one of the parties, as these provisions would not have been negotiated by equally informed and equipped attorneys knowledgeable about the law and how it is applied in the courts by judges. Then the parties had to revise their agreements, or start over in their negotiations, with a competent mediator, or with two "traditional" lawyers.

Lest you assume I am self-serving to my profession in this stated preference for lawyers as mediators, I should add that I often express a bias in favor of mental health professionals over lawyers when suggesting or choosing guardians ad litem, to investigate issues of custody and parenting time, because I have found mental health professionals are more likely to be competent in that particular task, and for the same reason - i.e., their training has prepared them for it. Divorce is a legal process, involving the law of divorce. Divorce mediators should be lawyers.

Those who are contemplating a divorce should know that whether they ultimately decide they need a mediator, a collaborative lawyer, or a traditional lawyer, for their divorce, they should always pick a lawyer who is experienced and knowledgeable in the area of divorce law, and preferably one who has had recent experience in the family court where their divorce case will be heard, no matter how simple or complex they think their divorce may be, and even if they think their case can be handled mostly "out of court."

When so much is at stake, divorcing parties owe it to themselves and to their family to try to do their divorce right the first time. Simplistic slogans are not to be believed. All who are contemplating divorce should go alone to see a good divorce lawyer who can explain all of the options and give them a clear idea of their individual rights and obligations, and an honest assessment of their particular legal situation. Then, and only then, will they be confidently able to determine if they should use a mediator, collaborative lawyer, or traditional lawyer for their divorce.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Garruto, v. Cannici
A-2447-06T1 12-21-07

The court that an action for tortious interference with a
bequest, premised upon undue influence by means of fraud, is
barred when plaintiffs, with knowledge of probate proceedings,
have failed to file a timely challenge to the will in probate
court.

A Scandal Explained

Over at Slate.com Adam Perer and Chris Wilson have created the Mitchell Report Social Network, a visual depiction of the connections revealed by last week's steroid report. I think Tufte would approve. (Also, is it just me or does Edward Tufte, king of the beautiful graphic, have a pretty ugly web page?)

Happy holidays, all. Hope to see many of you in New York after the New Year.

ABA ESTATE PLANNING, PROBATE & TRUST COMMITTEE Newsletter December, 2007
ABA General Practice, Solo and Small Firm Division American Bar Association

Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA

In this issue: 1. 2008 PUBLIC BENEFIT NUMBERS
2. Season's greetings from Kenneth Vercammen, Esq., his family and Frizby the dog.
3. More Elder Law & Estate Planning articles added to website http://centraljerseyelderlaw.com/

1. 2008 PUBLIC BENEFIT NUMBERS
By Thomas D. Begley, Jr., Esquire

Every year selected public benefit numbers change. These are indexed to the cost of living. Here are some of the important numbers for 2008:

Medicaid
$1,911 Income Cap
$104,400 Maximum CSRA
$20,880 Minimum CSRA
$2,610 Maximum MMMNA
$1711.25 MMMNA (until July 1, 2007)
$513 Excess Shelter Allowance (until July 1, 2007)

Social Security
2.3% Social Security Increase
$637 SSI – Single
$956 SSI – Couple
$940 SGA - Disabled
$1,570 SGA – Blind
7.65% Tax Rate Employee
15.30% Tax Rate Self Employed
$102,000 Maximum Taxable Earnings
$1,050.00 Quarter of Coverage
$670.00 Trial Work Period
$2,185.00 Maximum Social Security Benefit

Medicare
$128 Medicare Co-Payment – NSF
$96.40 Medicare Part B Standard Premium ($82,000 income or less)

Medicare Part B –Related Premium

$135/year Deductible
$96.40/mth Standard Premium

Part B Income-Related Premium
Beneficiaries who file an individual tax return with income: Beneficiaries who file a joint tax return with income: Income-related monthly adjustment amount Total monthly premium amount
Less than or equal to $82,000 Less than or equal to $164,000 $0.00 $96.40
Greater than $82,000 and less than or equal to $102,000 Greater than $164,000 and less than or equal to $204,000 $25.80 $122.20
Greater than $102,000 and less than or equal to $153,000 Greater than $204,000 and less than or equal to $306,000 $64.50 $160.90
Greater than $153,000 and less than or equal to $205,000 Greater than $306,000 and less than or equal to $410,000 $103.30 $199.70
Greater than $205000 Greater than $410,000 $142.90 $238.40

Cost-Sharing for Part A and Part B

On October 1, 2007 the Centers for Medicare & Medicaid Services (CMS) announced Part A and Part B premiums and deductibles for 2008.[1]

$1,024/benefit period Hospital

Hospital Coinsurance
$0 Days
$256/day Days 61-90
$512/day Days 91-150

Skilled Nursing Facility Coinsurance
$0 Days 0-20
$128/day Days 21-100

Part A Premium (for voluntary enrollees only)
$233/mth With 30-39 quarters of Social Security coverage
$423/mth With 29 or fewer quarters of Social Security coverage

Part B
$135/year Deductible
$96.40/mth Standard Premium

Part B Income-Related Premium
Beneficiaries who file an individual tax return with income: Beneficiaries who file a joint tax return with income: Income-related monthly adjustment amount Total monthly premium amount
Less than or equal to $82,000 Less than or equal to $164,000 $0.00 $96.40
Greater than $82,000 and less than or equal to $102,000 Greater than $164,000 and less than or equal to $204,000 $25.80 $122.20
Greater than $102,000 and less than or equal to $153,000 Greater than $204,000 and less than or equal to $306,000 $64.50 $160.90
Greater than $153,000 and less than or equal to $205,000 Greater than $306,000 and less than or equal to $410,000 $103.30 $199.70
Greater than $205000 Greater than $410,000 $142.90 $238.40

In addition, the monthly premium rates to be paid by beneficiaries who are married, but file a separate return from their spouse and lived with their spouse at some time during the taxable year are:

Beneficiaries who are married but file a separate tax return from their spouse: Income-related monthly adjustment amount Total monthly premium amount
Less than or equal to $82,000 $0.00 $96.40
Greater than $82,000 and less than or equal to $123,000 $103.30 $199.70
Greater than $123,000 $142.00 $238.40

Standard Part D Cost-Sharing for 2008
On April 2, 2007 CMS issued information about Part D cost-sharing for 2008:[2]

$27.93 Base Beneficiary Premium
$275.00 Deductible
$2,510.00 Initial Coverage Limit
$4,050.00 Out-of-pocket Threshold
$5,726.25 Total Covered Part D Drugs to Get to Catastrophic Limit
$2.25 Catastrophic cost-sharing: Generic/ Preferred Drug

Low-Income Subsidy Co-Payments (LIS)
Full Benefit Dual Eligibles w/incomes
≤ 100% Federal Poverty Level
$1.05 Generic/Preferred Drugs
$0.00 Above Catastrophic Limit

Full Benefit Duals with Incomes
>100% Federal Poverty Level &
Other Full-Subsidy Eligible Beneficiaries
$2.25 Generic/preferred drugs
$0.00 Above Catastrophic Limit

Partial Subsidy Eligible Beneficiaries
$56.00 Deductible
15% Co-insurance to ICL
$2.25 Generics above catastrophic limit
$5.60 Others above catastrophic limit

Copyright 2007 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.

The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.

2. Season's greetings from Kenneth Vercammen, Esq., his family and Frizby the dog.
See photo http://www.njlaws.com/vercammen_family_2007.htm
One of the pleasures of this holiday season is the opportunity it gives to thank many people for their friendship, goodwill and the very pleasant association we enjoy. We sincerely appreciate this relationship and are thankful for the confidence many people have shown in us. We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
In the true spirit of the season, may we all be thankful and share in the hope for peace on earth and goodwill toward our fellow man.
May the new year bring happiness and good health to you and those you love.

More Holiday cheer at this great site:
http://holidays.blastcomm.com/

HAPPY HOLIDAYS & SEASON'S GREETINGS WORLDWIDE:
Wesoly Siat, Bozega Narodzenia [Merry Christmas in Polish}
FROHE
WEIHNACHTEN
PRÓSPERO AÑO NUEVO
HAPPY NEW YEAR
FRIEDEN
GLÜCKLICHES NEUES JAHR
JOYEUX NOËL
PRETTIGE
KERSTDAGEN
GELUKKIG
NIEUWJAAR
BUON
NATALE
BONNIE ANNEE
HYVÄÄ JOULUA

3. More Elder Law & Estate Planning articles added to website http://centraljerseyelderlaw.com/:

Wills
Answers to Probate Questions
Power of Attorney
Living Wills
Executor - Duties & Responsibilities
Trusts v. Wills
Wills & Estate Administration
Medicaid
Wills, Children & Guardianship
Removing an Executor of an Estate
Ten Estate Planning Ideas for Divorced/ Separated Persons
Guardianship of Disabled Adults
Wills & Estate Planning
Codicil to a Will
Elective Share of Spouse
Prenuptial Agreements
Compelling the Sale of Jointly Owned Houses-The Partition Suit
Estate/Will/Trust Inheritance Contests
Probate/ Inheritance/ Estate Administration Interview form
Estate Planning/ Guardianship Interview Form
Will Questionnaire

ALPHABETICAL LIST OF OTHER ELDER LAW/PROBATE ARTICLES
Administration of Estates, Probate and Decedents
Alzheimer Patient Estate Planning & Guardianship
Asset Protection
Attorneys Permitted as Executor
Book & Audiotapes on Elder Law
Catholic Lawyers Guild
Caveat to Will
Disclaimer by a beneficiary of an interest in a Will or Trust
Elder Law Seminars
Elective share of surviving spouse
Cancer Patients Estate Planning
Multiple Sclerosis Patients & Guardianship of Disabled Adults Estate Planning
Parkinson Patients & Guardianship of Disabled Adults Estate Planning
Single, unmarried parents Estate Planning Ideas
Stroke Victims & Guardianship of Disabled Adults Estate Planning
Estate Planning Ideas
Estate Planning for Gay and Lesbian Couples
Executor Commissions in a Probate Case
Federal HIPAA requires Power of Attorney or written document to permit family access to medical information
Free Will Seminars and Speakers Bureau
Gay and Lesbians - Living Will / Advance Directives
Guardian Law Changes
If you have no will
If Undue Influence was 'Clear,' the Will of the Elderly Testatrix is Denied Admission to Probate.
Joint Bank accounts upon Death
Letters of Instruction
Letters of Administration if No Will
Life Insurance Trusts
Middlesex Estate Council Speaker Needed
Medicaid has lien on special needs Trust
New NJ Probate Law CHAPTER 132 of 2004
New Jersey Transfer Inheritance Tax
Nursing Home and Assisted Living Facility Liability
Order to Show Cause in Probate
Power of Attorney and Estate Planning for Gay and Lesbian Couples
Probate Release Refund Bond
Probate
Probate Retainer Statement
Reverse Mortgages
3B:14-23 Powers of a Fiduciary, Executor in a Probate Estate
Rule 4:80 Application to Surrogate's Court for Probate or Administration
Rule 4:86 Action for Guardianship of a Mentally Incapacitated Person
Rule 4:87 Probate Accountings, Actions for the Settlement of Accounts
Same-Sex Couples Estate Planning
Stroke and Power of Attorney
State Planning for Gay and Lesbian Couples
Tax Law Changes
Turning House Over to Children?
Undue Influence as Defense to Will or Power of Attorney
Wills & Estate Planning for Gay & Lesbian Couples

_______________________

WE PUBLISH YOUR FORMS AND ARTICLES

To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Committee.

Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.

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You can become a published ABA author. Enjoy your many ABA benefits.

Send us your articles & ideas

To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.

General Practice, Solo and Small Firm Division:
Elder Law Committee and the

Who We Are

The ESTATE PLANNING, PROBATE & TRUST COMMITTEE focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations. We work with the Elder Law Committee to schedule programs at the ABA Annual meeting.

To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.

________________________________________

The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA JayFoonberg@aol.com>

We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
Central Jersey Elder Law www.centraljerseyelderlaw.com
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Great Article on Recent Federal Sentencing Developments

I have recently commented on the US Supreme Court and the US Sentencing Commission's recent positive moves in the area of sentencing for crack cocaine offenders in posts last week and last month. But finally, on Wednesday, Mark Allenbaugh, an expert in the field of federal criminal sentencing, has published an article on Findlaw.com which is a must-read for those interested in the topic: FindLaw's Writ - Allenbaugh: A Positive Development in All the Sentencing Insanity.

For information and links related to Massachusetts criminal law (not federal) see the criminal defense page of my law firm website.

Governor Patrick Issues Executive Order Creating Watchdog Child Advocate Office

Gov. Patrick is to create an Office of the Child Advocate that will track cases of child abuse and neglect, and that will oversee the Department of Social Services, Department of Youth Services, and other agencies with responsibilities relating to children. This is a good idea, especially given the problems we have had with the performance of our state agencies. Such oversight authorities have already been set up in some other states. There is justified hope that this new office may improve the competence and effectiveness of our state agencies. See today's Boston Globe article on this news by Andrea Estes: Patrick order will create watchdog child advocate office - The Boston Globe, December 20, 2007, by Andrea Estes

"Governor Deval Patrick today will create the state's first Office of the Child Advocate, a watchdog with power to investigate allegations of child abuse and neglect and to monitor state agencies that provide services to children, state officials said yesterday.

The office will not have the broad powers of child advocates in some other states, who can issue subpoenas, hold public hearings, and even sue state agencies.

Nonetheless, Massachusetts child welfare advocates said it was an important move after a spate of high-profile abuse and neglect cases in recent years.

'Finally,' said MaryLou Sudders, president of the Massachusetts Society for the Prevention of Cruelty to Children. 'You need someone who can ask tough questions and has the backing of the governor. The office of child advocate is in response to a series of tragedies and legislative oversight hearings. There's no question about it.'

The state agency that handles foster care, the Department of Social Services, has come under fire for several high-profile tragedies in recent years. In 2005, 4-year-old Dontel Jeffers died at the hands of his foster mother. Haleigh Poutre was left comatose in 2005 after a beating by her adoptive mother, who was under DSS supervision. And 4-year-old Rebecca Riley of Hull died after being given an overdose of psychotropic medications in 2006 by her parents, who had been monitored by DSS...."

For information about Massachusetts divorce and family law, see the Massachusetts Divorce & Family Law Page of my law firm website.

Stagnation in the Law Prof Blogosphere?

See the commentary by Scott Greenfield, Brian Leiter, Glenn Reynolds, and Dan Solove sparked by Orin Kerr's post. For some traffic stats, see my post at TaxProf Blog.

It's A Wonderful Life

I love It's A Wonderful Life (Frank Capra, 1946). It's a gorgeous film and a moving story of conflict and redemption. And it's utterly free. Just click here to start the credits rolling in black and white on your laptop. The film was not particularly successful when it opened in theaters. It became a classic years later when it fell into the public domain and TV stations began playing it over and over during the lead up to Christmas.

I love It's a Wonderful Life because it's the greatest financial services movie ever made. Sure, Jimmy Stewart is unforgettable as George Bailey. And Donna Reed as Mary Bailey has permanently blown the curve in the annual competition for ultimate Christmas wife and mom. For me, though, the unsung star of the film is the Bailey Building and Loan.

At the beginning of the 19th century, there was no banking as we know it. Rich people needed safekeeping services to store gold or other forms of wealth, and banks provided secure vaults. The first depositary savings bank is thought to be the Philadelphia Savings Fund Society, established in December of 1816. It launched an industry that profoundly changed the American economy.

Savings and loans emerged as small businesses that accepted cash deposits from customers and made loans to borrowers in the community. During the nineteenth century, as urbanization and wage income grew, savings and loans encouraged wage earners to save. They replaced extended family as a source of capital. And all in the nick of time to finance the rapidly growing consumer sector. A wage earner needed finance to acquire the "American Dream" consisting of big ticket items like a home and a car. The connection between savings and loans and the emerging consumer middle class was more than skin deep. As a regulatory matter, savings and loans were "of the people" in a way that banks were not. Depositors controlled the investment strategy deployed by savings and loan management. In contrast, equity investors, usually with no connection to the deposit community (e.g., Mr. Potter), controlled the management of banks.

The course of George Bailey's wonderful life, to his great frustration, tracks the fate of the Bailey Building and Loan. Throughout the film, George is the archetypal investor. He saves. He reinvests dividends. He takes the long view while the others around him mock him and snap up short term gains. He puts his core values first and his short term pleasure second. He feels shortchanged and foolish. He longs to escape Bedford Falls and engage in a conspicuous consumption trip around the world. But his father dies unexpectedly. George cancels the trip and instead takes his late father's staff as the shepherd of Bailey Building and Loan.

Just when George seems about ready to reap a return on his investment, life deals him another blow. State regulation prohibited savings and loans from maintaining their own deposit accounts (an odd feature of savings and loan law that persisted through the S&L debacle in the late 20th century). Uncle Billy, who plainly is not cut out for the demands of the financial services industry, walks the Building and Loan's daily deposit envelope across Main Street to the Big Bank which Mr. Potter controls. (I've used this scene many times to explain to clients why they should invest in electronic payment processing). Potter seizes Uncle Billy's mistake as an opening to destroy the Building and Loan.

Coincidentally, the savings and loan examiner is in the house. George feels the double-whammy crush of Potter's political and economic power. He worries he will face criminal prosecution for embezzlement, humiliate his family, and appear as a betrayer to his flock. (All criminal defense lawyers dream of the chance to defend a George Bailey). He considers his most liquid asset, a life insurance policy, with a paltry cash value. He contemplates suicide.

The famous part of the movie involves Clarence the Angel, the bridge, and a film noir look at Bedford Falls and its inhabitants as a kind of 1940's Breezewood, Pa. The Bailey Building and Loan doesn't figure prominently in George's redemption journey. But, in the end, George's twin investment strategies-- short term sacrifice for long term gain, self-sacrifice for the good of the community-- are vindicated. He sees the value of his strategy, and his own worth, as the inevitable and invaluable return on his investment.

The entire script of the film is here.

I've posted here my favorite scene. It takes place in the modest lobby of the Bailey Building and Loan. An economic panic has just swept through Bedford Falls. Depositors are pounding on the door of the Building and Loan demanding cash. Potter is buying claims against the Building and Loan for the proverbial cents on the dollar.

(Camera pans with George as he vaults over the counter quickly, speaking to the people.)

GEORGE: Tom! Tom! Randall! Now wait... now listen... now listen to me. I beg of you not to do this thing. If Potter gets hold of this Building and Loan there'll never be another decent house built in this town. He's already got charge of the bank. He's got the bus line. He's got the department stores. And now he's after us. Why? Well, it's very simple. Because we're cutting in on his business, that's why. And because he wants to keep you living in his slums and paying the kind of rent he decides. (The people are still trying to get out, but some of them have stood still, listening to him. George has begun to make an impression on them.)

GEORGE: Joe, you lived in one of his houses, didn't you? Well, have you forgotten? Have you forgotten what he charged you for that broken-down shack? (to Ed) Here, Ed. You know, you remember last year when things weren't going so well, and you couldn't make your payments. You didn't lose your house, did you? Do you think Potter would have let you keep it? (turns to address the room again) Can't you understand what's happening here? Don't you see what's happening? Potter isn't selling. Potter's buying! And why? Because we're panicky and he's not. That's why. He's picking up some bargains.

Now, we can get through this thing all right. We've got to stick together, though. We've got to have faith in each other.

MRS. THOMPSON: But my husband hasn't worked in over a year, and I need money. WOMAN: How am I going to live until the bank opens?
MAN: I got doctor bills to pay.
MAN: I need cash.
MAN: Can't feed my kids on faith.

(Now comes my absolutely positively most favorite part)

During this scene Mary has come up behind the counter. Suddenly, as the people once more start moving toward the door, she holds up a roll of bills and calls out:

How much do you need?

George and Mary, through their steadfast adherence to good, their commitment to each other, and to the value of sacrifice for the good of others, are a literary beacon of hope. The Bailey Building and Loan survives as a stalwart against Mr. Potter's power and greed because George and Mary and all the depositors of Bailey's Building and Loan stick together. We can't feed our kids on faith. We can invest and diversify to smooth out the bumps of life for ourselves and each other. As for Mr. Potter, he'll always be around with a higher salary, a swankier office, and a cigar. Mr. Potter is everywhere. His seductive power is especially compelling when the chips are down, and doubt overtakes our confidence in the long term investment strategy. Here's a response to tuck away in your briefcase for when you meet your own Mr. Potter. "In the . . . in the whole vast configuration of things, I'd say you were nothing but a scurvy little spider." You may have money and the power that goes with it. But you are no match for George Bailey and the Bailey Building and Loan.

Multimedia bonus: It's a Wonderful Life

Ron Paul: “The Income Tax, The way it’s collected is Unconstitutional”

Ron Paul: “The Income Tax, The
way it’s collected is Unconstitutional”

Casey Lee Cobb | ShowTheLaw.com | December 19th 2007

I think the US Marshalls should be having a crisis of conscience by now. They’ve terrorized Americans by enforcing a non-law that has been clearly demonstrated over, and over again to be Unconstitutional. Hiding behind their job’s, in which they believe have nothing to do with protecting our Constitution.

I am similar to Ron Paul a fan of peaceful civil disobedience; however it was Dr. Paul who said the following: "But whether the resistance against government tyrants is non-violent or physically violent, the effort to overthrow state oppression qualifies as true patriotism." So as you can see, even in Ron Paul’s own words people like Ed & Elaine Brown, as well as the likes of the Freedom-4 are indeed true patriots, this is something that should never be forgotten.

To go against the grain and resist tyrannical actions of government in protection of your rights is your duty as a free people, or an enslaved people whom are striving endlessly in the pursuit of liberty. It’s never going to be easy or organized; nothing is set in stone, other than one’s own Iron will, and desire to stick to a principled philosophy of liberty.

Please, I would encourage you all to do your best to reach out to the Browns and the Freedom-4 this holiday season and let them know that we love them and support the stand that they have made. We will never forget their sacrifice, and we will never stop fighting for the cause of exposing this monumental fraud.

More on Law School Competition

In a previous post I questioned whether competition among law schools increases the quality of legal education and the Moneylaw/Moneyball analogy. In reality, I only question one version of the analogy. The version that I think is misguided is the one that focuses on building or advancing a law school in order to “win” in a competition with other law schools. The other version involves adopting Moneyball strategies to have the best law school possible. There is a difference.

Although I favor the second approach, I think the first has found its way into this blog and other blogs more frequently. In particular, there seem to be far more posts ranking law schools by USN&WR, SSRN downloads and Leiter-type rankings than those focusing on how to make law schools and their faculties more effective. (By the way, what does citing each other and ourselves mean in the absence of consideration of judicial citations?) The concern with relative appearance is consistent with massive mail outs listing new hires and faculty publications that are as glossy and useful and sometimes as embarassing as beer commercials.

The disconnect between law school competition and law school quality can be understood by thinking of the markets in which law schools compete. In the input market, they compete for professors and students. In both cases, schools seem driven by what others will think of the inputs more than by actual productivity. In hiring, those ranking law schools for national publications are far more likely to be impressed by hiring 5 Ivy League graduates that 5 highly ranked graduates of non elite schools and most law schools fall into line. If you want to use the Moneyball analogy, it’s as though Billy Beane decided in advance that any player coming up through the Pirate’s farm system would always be ranked after one coming up through the Boston's system regardless of any other information. In effect, hiring is driven by splash, not substance.

With students, schools compete for the highest LSAT/GPA. This is not that far off; it makes good sense to admit students who are likely to succeed in and after law school. On the other hand, the quality of the educational experience can also be enhanced by having diverse students. Here, competition is exclusively for minority students, particularly those with high LSATs and GPAs -- often the least diverse diversity. Just how much schools are willing to sacrifice LSAT and GPA for a more diverse student body is not clear. And, the willingness to look beyond race as a source of diversity is nonexistent. Diversity-talk is in large measure just talk.

In output markets, schools do appear to be moderately concerned about bar passage although it is a statistical after thought in the USN&WR rankings. Luckily, alums get upset when the rates are low and deans wanting to keep their jobs are motivated to address the issue. But look back at Moneylaw posts. Compare the number relating to publications, citations, and downloads with the number addressing bar passage or any possible measure of teaching success. Not that bar passage is a good measure of teaching effectiveness. Bar passage divided by entry level LSAT scores would be far better.

The consideration of service as a measure of law school success? Well . . ., enough on that.

In the output market, by far the most important factor is scholarship. I am not sure when it happened but it seems like it was the late 1980s when schools and professors became counters as opposed to quality assessors when to comes to scholarship. This is also about the time of hyper self-promotion and the proliferation of symposia articles with authors chosen on the basis of who they are as opposed to whether they have anything new to say. My guess is that if one plotted articles by year we would have an upward sloping curve that increased at an increasing pace. It is equally likely that the quality curve is flat, at best.

In short, (too late now, I know) competition among law schools only increases the quality of legal education if you believe that 1) the credentials of faculty applicants are predictors of careful teaching and important research, 2)bar passage alone is a measure of effective teaching, 3) LSAT and GPA plus race alone make for an intellectually interesting and diverse student body, and 4) numbers of articles or downloads is the same as meaningful scholarship.

Those are the factors on which law schools compete. The connection between those and excellence in legal education is not obvious. In my view, MoneyLaw would be better served by more suggestions on how to make law schools better.

Multiple choice? Let it snow!

Jeff Harrison questions the motivations behind multiple-choice, machine-graded exams. Dr. Lionel Gift, the economics professor in Jane Smiley's classic novel about academic life, Moo, provides a complete answer:

Dr. Lionel Gift was all set. His summer-weight suits were packed, as were his Egyptian cotton dress shirts, undershorts, and socks. he had a spare pair of glasses, a swimming costume, a silk robe, a hat with a wide brim. He had his laptop, his modem, his internal communications program. He had his tickets and his money.

As usual, his exams would be given out by his graduate assistants and graded by the university computer. These grades would then be added to those already on the computer from the midterm, tallied according to a statistical curve, and reported to the students. By then, Dr. Lionel Gift would have been in Costa Rica for over a week. Let it snow let it snow let it snow: He would not be here to see it, and that suited him perfectly.

To name merely one especially egregious instance in which sloth motivated resort to multiple choice, I recall one law professor (since retired, to the great benefit of his law school and his students) who had not updated a multiple choice exam during my lifetime. And I'm as old as the Super Bowl!

The following table illustrates how life differs for Dr. Lionel Gift and those who take his exams:

Dr. Lionel Gift	His students

Starting to Make Sense in Sentencing Crack Offenders: Supreme Court & Sentencing Commission Do Some Good

Both the US Supreme Court and the US Sentencing Commission did some good things this week, and are helping to move our federal system a bit closer to sanity in the treatment of federal drug offenders. However, draconian mandatory minimum sentences for drug offenses remain, and we will continue to spend lots of tax dollars to lock up lots of people in this country for a long time. Don't think too much has changed, but this is welcome news. Read the CNN article of yesterday, Panel says 19,500 crack inmates can seek reduced sentences - CNN.com (Panel says 19,500 crack inmates can seek reduced sentences; Panel votes unanimously to make change in sentencing guidelines retroactive; Monday Supreme Court ruling allows judges to ease harsh crack sentences) for news on both developments.

My previous post on this issue can be found here. For basic information about criminal law in Massachusetts (not federal law) see the criminal defense page of my law firm website.

"WASHINGTON (AP) -- The U.S. Sentencing Commission voted unanimously Tuesday to allow some 19,500 federal prison inmates, most of them black, to seek reductions in their crack cocaine sentences.

Advocates argue that crack-cocaine offenders are unfairly targeted under sentencing guidelines.

The commission, which sets guidelines for federal prison sentences, decided to make retroactive its recent easing of recommended sentences for crack offenses.

Roughly 3,800 inmates could be eligible for release from prison within a year after the March 3 effective date of Tuesday's decision. Federal judges will have the final say whether to reduce sentences.

The commissioners said the delay would give judges and prison officials time to deal with public safety and other issues.

U.S. District Judge William Sessions of Vermont, a commission member, said the vote on retroactivity will have the 'most dramatic impact on African-American families.' A failure to act 'may be taken by some as particularly unjust,' Sessions said before the vote.

The seven-member commission took note of objections raised by the Bush administration, but said there is no basis to treat convicts sentenced before the guideline change differently from those sentenced after the change.

....

In two decisions Monday, the Supreme Court upheld judges who rejected federal sentencing guidelines as too harsh and imposed more lenient prison terms, including one for crack offenses.

In the crack case, Justice Ruth Bader Ginsburg's majority opinion said Derrick Kimbrough's 15-year sentence was acceptable, although guidelines called for 19 to 22 years. 'In making that determination, the judge may consider the disparity between the guidelines' treatment of crack and powder cocaine offenses,' Ginsburg said.

Kimbrough is black.

So are 86 percent of the 19,500 inmates who might see their prison terms for crack offenses reduced after the commission approved retroactive easing. By contrast, just over a quarter of those convicted of powder cocaine crimes last year were black.

The sentencing commission recently changed the guidelines to reduce the disparity in prison time for the two crimes. New guidelines took effect November 1.

'The Kimbrough decision is a tremendous victory for all who believe that the crack and powder cocaine disparity is unjust,' said Mary Price, vice president of Families Against Mandatory Minimums.

Kimbrough's case, though, did not present the ultimate fairness question. Congress wrote the harsher treatment for crack into a law that sets a mandatory minimum of five years in prison for trafficking in 5 grams of crack cocaine or 100 times as much powder cocaine.

Seventy percent of crack defendants get the mandatory minimum.

Kimbrough is among the remaining 30 percent who, under the guidelines, are supposed to receive even more prison time for trafficking in more than 5 grams of crack.

Neither the court's decision nor the commission's guidelines affect the minimum sentences, which only Congress can alter.

In previous years, the sentencing commission reduced penalties for crimes involving marijuana, LSD and OxyContin, which are primarily committed by whites, and made those decisions retroactive."

SSRN Enters Citation Count Game

As readers of this blog know, citation counts are one of the four methods used to rank law faculty scholarly performance (along with reputation surveys, publication counts, and SSRN download counts). (We discuss all four methodologies in our recent article, Ranking Law Schools: Using SSRN to Measure Scholarly Performance, 81 Ind. L.J. 83 (2006).)

Brian Leiter's citation count studies of individual professors by specialties and of law faculties dominate this field, although prior work by Ted Eisenberg and Martin Wells (Rankings and Explaining the Scholarly Impact of Law Schools, 27 J. Legal Stud. 373 (1998)), also is important. For a critique of using citation counts to measure scholarly performance of faculty, see here.

SSRN has now entered the citation count field with its new "References & Cites" feature. For more details, see TaxProf Blog.

None of the Above: Multiple Choice, Machine Graded

Grading 190 essay contracts exams gets me riled up about multiple-choice-machine-graded (MCMG)-test-giving law professors. I am not talking about a few MCMG questions to get the students warmed up. And, I am not talking about multiple choice with and explanation – essentially short essay questions. I am thinking about those who give and then defend the giving of MCMG as the primary evaluative tool.

When I wrote what is perhaps becoming my annual blog on the topic last year, I conducted a poll. I was happy to see that only a small percentage of those responding use MCMG as the exclusive method of evaluation. I suspect that understates reality. In addition, I did not include the choice “use MCMG for more than half but less than all of the exam.” Faculty using MCMG exams for a substantial portion of the exam are, to me, are dodging their obligations to fairly evaluate students. Essays are the only way that students can actually be heard. Essay questions allow a two way conversation in which the students have an opportunity express the reality that law is nuanced, fuzzy, and often inconsistent. Of course, maybe MCMG testers aren’t teaching that at all which raises a more fundamental question.

I have heard a couple of defenses of this practice. One is that the outcome in terms of grades is the same as an essay test. I do not know anyone who has asserted this who has actually tested it. Aside from that, the more important point is that as soon as the students know that MCMG is the principal testing tool, you are teaching a different course than people who are not using MCMG. The entire focus of the students’ changes. And, to the extent you fancy yourself teaching critical thinking and analysis, forget it.

One defense is that people have different ways of learning. Huh? It’s not that I doubt that people learn in different ways; it’s that I do not see the connection between that and testing. MCMG exams and fact-intensive complex essays test different things, no matter how they are learned. I doubt any attorney is going to advertise that he or she is not so good at the analysis of complex fact patterns but hell on wheels when it comes to multiple choice.

Maybe, just maybe, if law professors giving MCMG had some experience or training in testing theory and exam writing I could be swayed. But I doubt it and I have yet to see a multiple choice law exam that required analysis.

Basically, in law school, if the exam can be graded with a machine, the course could have been taught by a machine. I could be wrong but I have yet to hear an argument for MCMG exams that makes sense other than a rationalization for not grading.

Joanna Grossman on Rhode Island Supreme Court's Denial of Same-Sex Divorce

For an excellent article critiquing the majority decision of the Rhode Island Supreme Court, in Chambers v. Ormiston, which ruled that a lesbian couple, married in Massachusetts, cannot get a divorce in Rhode Island's Family Court, for lack of jurisdiction, see Hofstra Law Professor Joanna Grossman's findlaw article of today, "The Rhode Island Supreme Court Denies a Divorce to a Same-Sex Couple That Was Married in Massachusetts: Why This Case Was Wrongly Decided" by Joanna Grossman.

As Grossman explains, state courts are obliged, for the purpose of considering claims for divorce, to recognize couples joined in marriage under other state's laws, even though state laws on marriage and legal restrictions and requirements for marriage differ greatly among the states. I basically agree with Grossman's points, and also question the Rhode Island Supreme Court majority's reasoning on the same basis. I think the dissenters had the better view, but read the majority and dissenting opinions and decide for yourself.

I disagree with this Rhode Island ruling, even though I also recognize problems with the reasoning of Goodridge et al. v. Department of Public Health et al., the Massachusetts Supreme Judicial Court decision which established gay or same-sex marriage in Massachusetts. (Despite my issues with the reasoning in Goodridge, I do, however, celebrate the resulting expansion of marriage to include gay and lesbian marriage, which I think has been a good thing, for gay and straight alike.)

But whatever you may think about the Massachusetts case establishing same-sex marriage, you must realize that it is this very Massachusetts decision that has created the current conflict of laws issue, by expanding greatly the definition of "marriage" in Massachusetts in a way that has had, and will continue to have, an effect far beyond the borders of the Bay State. It remains to be seen how exactly, and to what extent, gay marriage - and divorce - will become a part of the life of the rest of the nation. This Rhode Island case hardly provides an answer to that question, or any end to such jurisdictional questions. This story is far from over.

For more on this Rhode Island case, including links to my previous posts, news articles from the Providence Journal, and to legal briefs filed in the case, see my most recent post, Rhode Island Supreme Court Decides Lesbian Couple, Married in Massachusetts, May Not Divorce in Rhode Island.

For information about Massachusetts divorce and family law, see Law Offices of Steven Ballard.

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