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TestMax Partners with Affir...
TestMax Inc., the Venice Beach-based mobile test preparation startup and the creator of the top selling bar review and LSAT prep apps—BarMax and LSATMax—has announced a partnership with Affirm to offer bar exam review and LSAT prep for as low as $21/month. Most traditional LSAT and bar prep courses cost thousands—and don’t offer financing options—so students have been stuck with few options when it comes to affordable exam preparation. While both BarMax and LSATMax already cost thousands less than the competition, TestMax continually strives to ensure that every student can afford premium, comprehensive exam prep. “While our competitors focus on how they can charge students more but provide them with less, our vision has always been to use technology to make high quality test prep as convenient and affordable as possible,” says Mehran Ebadolahi, co-founder and CEO of TestMax. “We are thrilled to have partnered with Affirm to make our courses more affordable than ever. With Affirm financing, our students can study now with immediate and lifetime access, but pay later with budget friendly monthly payments.” BarMax courses will now be as low as $21/month based on a 0% APR for 12 months with Affirm financing, and LSATMax courses as low as $38/mo based on a 0% APR for 12 months. As the pioneer of both the LSAT Fee-Waiver Scholarship and the Public Interest Scholarship, TestMax has a legacy of providing students with superior exam preparation for a fraction of the cost of competitors. Aside from enabling students to study with technology they use on a daily basis for an unbeatable price, both app-based platforms feature real, officially licensed questions, world-class instructors, real-time message boards, personalized analytics, and more. Both BarMax and LSATMax are top-rated in the App Store and combined, have more than 200,000 users. About TestMax: TestMax is a Venice Beach-based startup providing comprehensive test preparation on mobile and the web at a fraction of the cost of other prep companies. As the creators of the LSATMax and BarMax apps, TestMax is the leading provider of app-based exam prep in higher-education. ABOUT AFFIRM: Affirm offers services that empower consumers to advance their financial well-being. Our goal is to revolutionize the banking industry to be more accountable and accessible to consumers. Today, Affirm shoppers get the flexibility to buy now and make simple monthly payments for their purchases. Unlike payment options that have compounding interest and unexpected costs, Affirm shows customers upfront exactly what they’ll owe—with no hidden fees and no surprises. Affirm also reaches a broader population of consumers through advanced technology and analytics that look beyond traditional FICO scores. These features increase customer satisfaction over other options. To view the full release click here.
The 4 Reasons You Failed th...
So you just found out you failed the bar exam. What now? We know how troubling failing the bar exam can be, particularly when considering that the majority of you probably prepared with the self-proclaimed “most successful bar review ever developed.” So it must have been you right? WRONG! The truth is that the methodology employed by the leading bar review courses simply does not put students in a position to be successful on the bar exam. To highlight this reality, please note that the overall pass rate for the July 2015 California bar exam was 46%, which means that the MAJORITY OF STUDENTS FAILED the bar exam. Many people assume that these statistics are the result of repeaters, but first-time test takers in California faired only slightly better on the July 2015 bar exam with a 59.1% pass rate. The number #1 ranked law school in California and perennial top-3 law school—Stanford Law School—had over 15% of its graduates fail. As did my alma mater, Harvard Law School. Hopeful that July 2016 would be better? Sadly, even with the increased adoption of the Uniform Bar Exam, bar exam passage rates continue to plummet. In an effort to ensure that your name appears on the pass list when you retake the bar exam, we thought we would highlight four mistakes students make when it comes to bar exam prep as well as offer an alternative approach that has helped countless repeaters who have turned to BarMax after being let down by a name they assumed they could trust. Made Up Questions Across the country, MBE scores have dropped to a 33-year low, which is not at all surprising given the prevalence of made-up MBE questions in bar prep materials. It is a fundamental tenet of standardizing testing to teach to the exam—and this requires the use of real, officially licensed questions. This is precisely why BarMax exclusively offers real, officially licensed MBE questions (1580+ including Online Practice Exams 1-4) as well as real, officially licensed MEE and MPT questions. We have a strict no fugazee policy because only by preparing with real questions, will you adequately prepare yourself for what you will actually encounter on exam day. The Kitchen Sink Approach Just looking at the amount of materials provided by other bar review courses is overwhelming. A short outline, a long outline, a state-specific outline, an MBE outline . . . where you do even start? The problem with this approach is that the standard to pass the bar exam is a 65%, which is a D. This means that you do not need to be an expert in any subject, let alone all of them. For this reason it is extremely important for you to minimize the amount of black letter law you are trying to digest. You do not get bonus points for scoring higher than what is need to pass, so why stress yourself out for no reason? BarMax was built with this principle in mind. Everything you need to pass, nothing more. You won’t believe how much more information you will retain when you start focusing on the forest instead of the trees. Perfect Model Answers Something else you definitely want to avoid as you prepare to retake the written portion of the bar exam is relying on perfect model answers written by professors under no time pressure. Perfect model answers are good for one thing and one thing only—making you feel inadequate. There is absolutely no way you can accomplish anything near a perfect answer under time pressure on the bar exam and, given that you need a 65% to pass, there is absolutely no reason to even try. At BarMax, we provide real model answers from actual bar examinees written under time pressure on the day of the bar exam and the reason we do so is that these model answers are nowhere near perfect. They are riddled with misstatements of the law, but it doesn’t matter—not only did these students pass, but they were also selected as model answers. With real model answers constantly reminding you of the standard actually required to pass, the writing section will be far less intimidating and far more manageable. No IRAC Most students also do not understand the importance of formatting on the written portion. But think about it like this . . . imagine you wrote the perfect answer to a question on the bar exam but your response was one long paragraph with no line breaks. The odds are you would still fail. How can this be? It is important to remember that the written portion of your bar exam will be graded by people, who are paid very little and who have mountains of answers to grade. As such, the more difficult you make it for the grader to follow your response, the less likely you are to receive a passing score. This means that you want to write in a methodical and easy to follow format that you should remember from law school—IRAC (i.e. Issue, Rule, Analysis and Conclusion). We recommend breaking down the discussion of every issue as follows: Header = Issue 1st Paragraph = Rule 2nd Paragraph = Analysis 3rd Paragraph = Conclusion Here is a great example of how to use IRAC to format your bar exam essays. The 34.9% passage rate for attorney examinees (i.e. lawyers practicing in other jurisdictions) on the California bar exam should further highlight that these abysmal results have nothing to do with intelligence or knowledge of the law. In fact, you can argue that the writing style you need to employ to be successful on the bar exam is the opposite of intelligent writing. The key for you is to make sure that your answer is formatted in a way that a grader, who is skimming, will easily be able to identify the different parts of your response and give you maximum credit. And there you have it. We understand how discouraging failing the bar exam can be, but it is important that you keep it in perspective. The national pass rates should make it clear that this failure was not a personal one. So all you need to do is address the shortcomings of your previous bar prep experience. Remember, insanity is doing the same thing but expecting different results. Avoid the mistakes outline above and your name will appear on the pass list! We are so confident we actually guarantee it.
Donald Trump, Hillary Clint...
Earlier this month, at a campaign stop in Wilmington, North Carolina, Republican presidential nominee Donald Trump told supporters that his opponent, Democrat Hillary Clinton, "wants to abolish—essentially abolish the Second Amendment." "If she gets to pick her judges," Trump said, "nothing you can do, folks." But then he added: "Although the Second Amendment people, maybe there is, I don't know." Trump's incoherent rambling ignited a firestorm of public controversy. The New York Times wrote: "Oblique as it was, Mr. Trump's remark quickly elicited a wave of condemnation from Democrats, gun control advocates and others, who accused him of suggesting violence against Mrs. Clinton or liberal jurists." In the aftermath, a lot of people are wondering: were Trump's comments protected under the First Amendment? Given that the First Amendment is a frequent topic on the bar exam, we figured we should capitalize on this controversy by examining it from the perspective of your bar exam review. So let's get started, using the BarMax Con Law outline checklist as our guide. First, we need to examine whether the speech in question is protected. Although the First Amendment provides "Congress shall make no law…abridging the freedom of speech," it only applies to protected speech. What kinds of speech are not protected by the First Amendment? Speech by government officials, True threats, Speech inciting imminent lawless action, Defamation or libel, Obscene speech, and Commercial speech. Government Official Speech Is Donald Trump, as the presidential candidate for a major political party, a government official? No; not yet or never (depending on who you ask). OK. Was Trump's comment a "true threat"? True Threats A true threat is a threatening communication that can be prosecuted under the law. As the name suggests, a true threat is distinct from a threat that is made in jest. Most likely, Trump's Second Amendment comment is too vague (read: incoherent) to be considered a true threat. Was he actually implying that Second Amendment supporters should try to assassinate or otherwise harm Ms. Clinton or those jurists she nominates to the Supreme Court if elected? Or was he merely suggesting that Second Amendment supporters exercise their right to vote this November? Honestly, who can tell what this guy is saying half the time? The Supreme Court has held that true threats are not protected under the First Amendment based on three justifications: Preventing fear, Preventing the disruption that follows from that fear, and Diminishing the likelihood that the threatened violence will occur. Many people are definitely fearful of Trump (or at the very least some of his policies), and his comments are disruptive, but they're also so incoherent that it's unclear whether there's ever a likelihood that any threatened violence would ever actually occur. Fine. But—incoherent or not—did Trump's comment incite others to imminent lawless action? Incitement In 1969, the Supreme Court decided Brandenburg v. Ohio, holding that speech is not protected by the First Amendment if there is a substantial likelihood the speech will cause imminent lawless action and if the purpose of the speech was to cause imminent lawless action. Brandenburg actually sets a high bar. For speech to be unprotected by the First Amendment under an incitement theory, that speech must cause imminent lawbreaking. Imminence is defined as "likely to occur at any moment" or "impending." The tricky question here is whether Trump's (again: fairly incoherent) comments satisfy this high bar—and the answer is they probably do not. Most likely, a court reviewing the incident would not conclude that Trump's comments amounted to incitement. Defamation Defamation refers to the act of damaging someone's good reputation. Libel is a written or published defamatory statement, while slander is spoken aloud. Trump's Second Amendment comments were not aimed at damaging Ms. Clinton's reputation. Defamation doctrine does not apply. Even though defamation is not applicable here, let's not forget the First Amendment issues that would arise since Trump's comments referred to a public figure, i.e. Hillary Clinton. In addition to the normal requirements for defamation, Ms. Clinton would have to show (1) that the defamation is false and (2) malice by Mr. Trump. (Interestingly, the über-thin-skinned Donald has threatened to "open up libel law" if elected. However, experts have pointed out that there is no federal libel law to "open up.") Obscene Speech In Miller, the Supreme Court set out a test for obscenity that was not protected by the First Amendment. Under that test, speech is considered obscene if it describes or depicts sexual conduct that: Appeals to the prurient interest (applying contemporary community standards), and Is patently offensive in its description or depiction of sexual conduct, and Lacks serious literary, artistic, political, or scientific value (applying a national standard). Trump's Second Amendment ramblings did not touch on sex at all, so obscenity doctrine is irrelevant too. Commercial Speech We all know Donald Trump is selling something: Donald Trump. Nevertheless, his political campaign is not technically classifiable as commercial speech. OK. So Trumps Comments Are Not Unprotected Speech. Is there a First Amendment Problem? No. Why? Because there is no state action to censor or otherwise limit Trump's speaking. To sum up: looks like Trump's comments about Ms. Clinton pass constitutional muster. We'll leave the separate question of whether Trump could be prosecuted for his comments (see 18 U.S.C. § 879) for another day, since that's not something you need to worry about for your bar exam prep. But we will note that 18 U.S.C. § 879 is a content-based restriction on speech, although clearly one that would pass strict scrutiny.
Brendan Dassey: A Case Stud...
Last December, an explosive documentary series premiered on Netflix: Making a Murderer. The show explores the story of Steven Avery, a Wisconsin man who had been wrongfully convicted of sexual assault and attempted murder and served 18 years in prison before being fully exonerated by DNA evidence. Two years after his release, however, Avery was arrested again on murder charges, as was his nephew, sixteen-year-old Brendan Dassey. Over ten episodes, Making a Murderer documented instance after instance of egregious prosecutorial and law enforcement misconduct. On August 12, 2016, a federal judge issued a 91-page decision which granted Dassey's petition for a writ of habeas corpus and overturned his convictions, holding that Dassey's "confession" was involuntary and contrary to the Fifth and Fourteenth Amendments to the U.S. Constitution. Since these topics are commonly tested on the bar exam, we figured this story would be a perfect way to review them (and remember them!) as you continue your bar exam prep. The Due Process Clause of the Fifth Amendment requires that confessions be voluntary; otherwise, they are inadmissible. Whether a confession is voluntary is determined by looking at the totality of circumstances under which the confession was given. Recall, too, that the Bill of Rights, including the Fifth Amendment's Due Process guarantees, is made applicable to state and local government action through the Fourteenth Amendment's Due Process Clause. Thus, if the local and state officials who interrogated Dassey coerced his confession, that confession is inadmissible and cannot be used as a basis to sustain a criminal conviction against him. So, what exactly happened to Dassey? On February 27, 2006, state and county investigators interviewed Dassey. At this time, Dassey was: 16 years old, with an IQ that had been assessed as being in the "low average to borderline range," had "difficulty understanding some aspects of language and expressing himself verbally," had trouble "understanding and using nonverbal cues, facial expressions, eye contact, body language, [and] tone of voice," and received special education services at his high school. The investigators initially questioned Dassey for an hour, alone, in a conference room at his high school. They then contacted the prosecuting attorney, who reviewed the audio recording of the first interview and asked for a better record. The investigators contacted Dassey's mother, Barb Janda, who went to the high school and then traveled with her son and the investigators to a local police station equipped with video recording equipment. According to Ms. Janda, the investigators discouraged her from joining Dassey for this second interview. Thus, Dassey was interrogated again, alone, for almost an hour. During this interview, Dassey told the investigators that he had been present with Avery the night of the crime. Believing that Dassey knew more, the investigators obtained Ms. Janda's permission to speak to Dassey once more, on March 1, 2006. According to Ms. Janda, the investigators never asked her if she wanted to be present for this interview. Instead, the investigators picked Dassey up from school the morning of March 1 and read him his Miranda rights. The Fifth Amendment requires that the Miranda warnings be given to anyone in police custody before police interrogation. Dassey agreed to speak with them. This March 1 interview was the fourth time in 48 hours that the police had questioned Dassey. The interview began shortly after 11 a.m. at the Manitowoc County Sheriff's Department. The interview was video and audio recorded. No adult was present on Dassey's behalf. For the next three hours, the investigators prompted Dassey to tell them a sordid tale of rape and murder, all the while assuring him that they already knew "what happened" and telling him that they were in his corner. After "confessing" to this crime, Dassey told the investigators he had a project due in sixth period and wanted to be back at school by 1:30pm. Additionally, when the "interview" finally concluded, the investigators told Dassey they would be arresting him. He asked "Does my mom know?" and whether he would be in jail for just one day. He clearly had no understanding of the implications of what had just happened to him. (For a detailed blow-by-blow account of the March 1 interrogation, see pages 5-20 of the district court order. For an account of the unforgivable misconduct perpetrated by Dassey's pre-trial defense lawyer Len Kachinsky, see pages 21-35 and Episode 4 ("Indefensible") and consider the violations of Professional Responsibility; file under "How Not to Practice Law.") Considering these circumstances in their totality, Judge William E. Duffin held that Dassey's confession was involuntary, because: The investigators repeatedly told Dassey that they already knew what had happened on the night of the crime, and The investigators repeatedly assured Dassey he had nothing to worry about. These false promises, coupled with the investigators' leading questions and other pressure tactics, plus Dassey's age (16), and intellectual deficits (low IQ), and the absence of a supportive adult (a parent or competent defense lawyer), rendered Dassey's "confession" coerced and unconstitutional. What happened to Dassey is a case study in coerced confessions and an extreme example of a miscarriage of justice. We hope this post will help you remember the key rules related to a criminal defendant's most precious constitutional rights.
The Supreme Court: More Rig...
By Lyle Denniston, Opinion recap: More rigorous race review SCOTUSblog Anytime a public college or other governmental agency plans to use race to help shape policy, it may get the benefit of a court's doubts in the first of a two-step analysis, but such plans may well fail in the second step. That appears to be the new shape of "affirmative action" after the Supreme Court on Monday issued its much-awaited and long-delayed ruling on the use of race in selecting the first-year classes at the University of Texas in Austin. In Fisher v. University of Texas (docket 11-345), the Court did not overrule its decade-old decision on college admissions, but its continuing embrace of that precedent was hardly enthusiastic. More importantly, that decision - in Grutter v. Bollinger - has been largely supplanted by Monday's ruling. While the ruling was confined to the use of race in admissions to state- or local-government-operated colleges, it also has implications for the use of race in government job recruitment and public contract placement. And the ruling will put a searching new spotlight on a case that the Court has already granted for review at its next Term: the constitutionality of a plan approved by state voters to forbid any use of race in public college admissions and, by implication, in state hiring and contracting. Justice Anthony M. Kennedy's opinion for seven Justices (Justice Ruth Bader Ginsburg dissented and Justice Elena Kagan did not participate) ordered the Fifth Circuit Court to take a new, and seemingly more demanding, look at an admissions formula adopted to be a close match of one that the Supreme Court had actually upheld in 2003 in the Grutter decision, involving the University of Michigan Law School. The university thought it was following the guidance of that ruling, and the Fifth Circuit agreed that it had. The Fifth Circuit, Kennedy wrote, did not even apply the constitutional standard laid out in theGrutter ruling, and went seriously awry in giving too much emphasis to the University of Texas's "good faith" in adopting its own version of a Grutter plan. Here is the explicit order the Justices sent to the Fifth Circuit for what it must now do: Do a two-step analysis. In the first step, it is fine to rely upon the university's good faith belief that there is an educational benefit in using race as one " but definitely not the only one " factor in choosing the students it will admit. But, then, apply a second step, in which the university gets no benefit for a good faith belief in the need for the specific implementing steps it wants to take to actually achieve a form of racial diversity. In this second step, the university has to prove to a court that it has first tried some other methods of encouraging minority students to enroll that do not give any consideration, whatsoever, to race. If those other methods are "workable," that's probably the end of the inquiry: race cannot then be used at all. Such alternatives do not have to promise to work as well as a racial factor might in increasing minority enrollment; it is sufficient if they would promote that goal "about as well," according to the opinion. Although a university does not have a legal duty to have canvassed "every conceivable" non-race alternative, it must go through such a review process with "care," and it gets no deference for what it ultimately concludes, the Court said. If the university then reaches the point that it has shown that it will be "necessary" to take some account of race, it must then satisfy a court that "its admissions program is narrowly tailored to obtain the educational benefits of [racial] diversity," according to the Kennedy analysis. Here is the way the opinion recited that ultimate test: "A university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Justice Kennedy repeated a statement that the Court has often reiterated in race cases: the standard of 'strict scrutiny' must not be 'strict in theory, but fatal in fact.' But, he went on, "the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact." The emphasis was different, and it obviously was intended to be a meaningful difference. Whether a university program that takes any account of race can run this legal course and survive, whether at the University of Texas or elsewhere, will depend upon cases that are now likely to unfold across the country. There is a strong new incentive for opponents of "affirmative action" in college admissions to test virtually every such program; indeed, in some ways, the tone of the opinion would seem to invite such further testing. While many have wondered whether the Court might use this case to actually overrule its decision inGrutter, and while some will speculate that the time it took for the Court to reach this decision (more than eight months) might suggest that at some point it was thinking about doing just that, the final opinion left that precedent on the books. Justice Kennedy spoke of Grutter's continuation as a precedent in two places. First, he mentioned it along with other "affirmative action" precedents and commented: "We take those cases as given for purposes of deciding this case." Second, he mentioned what Grutter had concluded, and then said that the parties do not challenge, and the Court therefore does not consider, the correctness of that determination. In dissent, Justice Ginsburg wrote that "the Court rightly declines to cast off the equal protection framework settled in Grutter." But that might have been something of an exaggeration of what the Kennedy opinion actually had said on the point. Perhaps her statement was meant, at least in part, as a response to a flat statement by Justice Clarence Thomas that he would overrule that decision, and a separate statement by Justice Antonin Scalia that the challenger to the University of Texas program had not asked for an overruling of that decision. Both of those members of the Court wound up endorsing the Kennedy opinion in full. Also supporting the opinion, without separate comment, were Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Stephen G. Breyer, and Sonia Sotomayor. Justice Scalia's separate opinion was unusually brief for him in a major case, but Justice Thomas's concurrence was a lengthy essay on the history of racial segregation, and came very close to accusing modern-day proponents of "affirmative action" of being the new segregationists. Thomas went so far as to say that, if the Court had actually applied a strict scrutiny analysis to the Texas program, "it would require Texas either to close the university or to stop discriminating against applicants based on their race." In dissent, Justice Ginsburg's main complaint was that the Fifth Circuit Court had already conducted the analysis that the Court was telling it to do over again. She also made the secondary point that she strongly favors the use of race when that is a "benign" method of making up for a long history of racial discrimination in America. After this ruling, the Court's attention on race as a constitutional matter will turn, in the session that starts next October, to another public college "affirmative action" case, already granted. The case ofSchuette v. Coalition to Defend Affirmative Action (docket 12-682) is a test of the constitutionality of a voter-approved ballot measure that ordered the state government to stop using race as even a partial factor in choosing entering classes at public colleges in the state. That measure also involved a ban on using race in state employment and in awarding state contracts, but the measure was struck down by the Sixth Circuit Court only as it applied to college admissions. While the constitutional issue in that case is different from the one the Court decided on Monday, the skepticism of the Court about using race at all " newly on display in the Texas case " may be a hint that the Michigan ban has at least a chance of surviving the Court's review. (Note to readers: Elsewhere on the blog, Amy Howe has a "Plain English" description of Monday's decision.) Disclosure: The law firm of Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief in support of the University in this case. However, the author of this post is not affiliated with the firm. SCOTUSblog
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