Saturday, July 07, 2007

Essay questions and the first amendment

I refuse to answer any question on the bar examination regarding the commerce clause, because doing so would require me to implicitly accept the liberal anti-constitutional views set out in Wickard and Raich, and thus would violate my first amendment rights. Also, such question would be an illegal state regulation of interstate commerce. Oh yeah, and maybe something about the privileges and immunities clause?

An unsuccessful bar applicant in Massachusetts is suing the Bar for including on the exam a question "about homosexual marriage and parenting." The applicant, as any reasonable person would, refused to answer that question and ended up failing the exam by 2 points. The story is here.

A part of me (a very small part) sort of feels for the guy. There was a time not so long ago that I felt constantly bombarded and under attack by the christian majority. Everything that I saw on the news or that a teacher said in class or that I saw on a billboard I managed to interpret as a direct and personal attack on me. This crazy attitude reared its head every once in a while in law school, as my lunch-mates will attest, but for the most part I have mellowedd with age.

What this guy is going through seems like a normal adolescent reaction to broad social trends. The part of me that still feels like its in high school sympathizes. The part of me that is about to take the bar is baffled that someone could make it through law school and be unable to understand the difference between understanding and applying the law of a jurisdiction and personally signing on to a cause. I mean, come on! Even if you hate homosexuals with a passion, you are still living and trying to practice law under a given state's laws. You have to know what they are and be able to apply them.

Anyway, it's a funny story and provides a good reminder for the upcoming exam: don't be an self-righteous idiot.


Blogger Expatriate Owl said...

I know a number of criminal defense attorneys who represent rapists, murderers, thiefs and toxic polluters. Does their representation of such lowlifes mean that they advocate murder, rape, theft or toxic waste dumping? Certainly not! But these attorneys are required to zealously defend their clients. Their personal viewpoints are irrelevant. Nobody can seriously impute a client's illegal acts to an attorney merely because the attorney takes the client's case.

As a taxpaying American, I resent having to pay more in taxes because others are not paying their fair share. And all of those penalty and interest assessments the IRS collects reduce my own tax burden. Yet I try to minimize the taxes, interest and penalties which my clients have to pay.

When it comes to the bar exam, if you miss the passing score by even a half point, then your life remains on hold until you finally pass the bar (or get the hell out of the profession altogether).

Nobody was asking this poor shmuck to advocate homosexual parenting or same gender marriages; they were only requiring him to competently perform the requisite legal analysis of the given situation. [For the record, I happen to oppose such abominations at least as much as he does.].

While a small part of me admires his adherence to principles, I would be very hard-pressed to recommend this would-be lawyer as an attorney to anyone. Lawyers, like automobile mechanics, sometimes have to get their hands dirty in order to best serve their clientele. If he can't handle it on the bar exam, then he'll be in even bigger trouble when he goes out into real world practice.

9:23 AM  
Blogger Fishfrog said...

Some good points. Even if the guy managed to eek out a passing score, he should not be admitted to the bar. The guy should clearly not be practicing law.

And there is something that I cannot in good conscience let pass without expressing my strong disagreement. Gay marriage is an "abomination"? I don't think so. And has the word "abomination" ever been used to condemn something outside of the religious context?

If two consenting adults want to spend the rest of their lives together (or at least the portion of their lives prior to divorce) then who the hell cares if they both have dicks or if they both have vaginas?

8:32 PM  
Blogger Expatriate Owl said...

On account of my deeply held religious beliefs, I do consider it to be an abomination.

As a practical matter, however, I do not concern myself with what two consenting adults do in a bed (nor, for that matter, what THREE consenting adults do in a bedroom). I wouldn't want to see the law enforcement personnel peering into bedrooms and making busts. And one need not be a perfect person in order to be a fit parent, so children certainly should not automatically be taken from same-gender couples merely because they are same-gender couples.

Nevertheless, I stand by my deeply-held religious beliefs that the aforementioned arrangements are abominations.

Regardless of who does or does not share my beliefs.

And if those who choose such arrangements should be free to do so, without having to keep themselves in the closet, then I, too, should be free to express my beliefs without having to keep them in the closet.

9:16 PM  

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