The temporary fee part 2: possible causes of action.

Is there legal recourse against the Regents? Perhaps.

1. Breach of contract

One option would be to file another class action under a similar breach of contract theory as Kashmiri. (In fact, the class entering after Kashmiri has filed their own lawsuit on the same theory.)

Following Kashmiri, the Regents moved quickly to shore up their public documentation so that there were no longer any references to keeping professional fees constant, etc. By the time the students in the class of 2007 were getting literature and applying—fall / winter 2003—the “contract” had been substantially revised.

2. California Bus. & Prof. Code § 17200

This is California’s all-purpose remedial statute for annoying business practices. Unfortunately there is sovereign immunity. Trinkle v. California State Lottery, 84 Cal.Rptr.2d 496 (1999). Dammit!

3. Unjust enrichment

Here’s the idea. File an intervenor claim against both the Kashmiri class and the Regents to prevent either of them from unjustly benefitting from the proceeds of this temporary fee.

I liked this idea initially but more experienced legal minds have convinced me it’s a loser. First, until some party has actually unjustly benefited, this claim would not be ripe. Second, the Kashmiri class can’t be held liable if the Regents choose not to enforce the judgment.

The one situation where it might apply is if the Kashmiri class settles with the Regents and actually pays some portion of the disputed fees. In that case, the Regents really ought to refund the same amount of the temporary fees back to us. If they don’t, an unjust enrichment claim could stand, since the Regents would otherwise be receiving double compensation.

4. Equal protection

Con law enthusiasts take note! As a state actor, the Regents are subject to the federal Equal Protection clause. The Regents are making a classification between professional students enrolled in the 2005-06 and 2006-07 school years, and everyone else. The Regents are applying differential treatment to this class of students (the $1750 temporary surcharge). Since there is no “suspect class” at issue, the action would be subject to rational basis review.

In general, there is precedent for lawsuits where the government has penalized plaintiffs depending on when they arrived. For example, in Zobel v. Williams, 457 U.S. 55 (1982), the court held that Alaska’s state dividend distribution program vio-lated equal protection guarantees by favoring established residents over new residents, despite only being subject to rational basis review. However, the issue in these cases is usually the interference with the right to travel.

There is negative precedent for lawsuits brought by students challenging fees. In Vlandis v. Kline, 412 U.S. 441 (1973), an exception to the right to travel was made for extra tuition charged to “non-resident” students. Classifying students by when they showed up was held to be a reasonable classification of citizens, and the non-resident charge was found constitutional.

To overcome rational basis review and the deference typically given to a body such as the Regents, we would have to show the classification was “arbitrary” or based on a “bare desire to harm”. Recall the only reason the Regents are not assessing a system-wide surcharge now is because of the “political environment”.

As to “arbitrary”, the Regents are taking a system-wide shortfall from the injunction and making a small group of students pay for it—students who may go to the same schools as the class members in Kashmiri, but otherwise have nothing to do with them or that action. However, the Regents will argue the professional students have always paid more, so there’s nothing new here.

As to “desire to harm”, I think in the Regents’ minds, since the Kashmiri injunction is taking away professional fees, then new professional fees ought to be assessed to replace them. It’s almost like “hey the professional students sued us—well they can pay us back!” I detect a somewhat punitive edge to the decision-making process.


The problem is, there’s no slam-dunk legal claim here. And to justify the expense of intitiating a new class action, there’d need to be one. Obviously the Regents have the right to increase fees. And they have the right to collect more fees from professional students.

This new temporary fee rankles the conscience because of a) the reason it’s being levied and b) the way it seems precisely calculated by the Regents to be as annoying as possible without triggering full-scale mutiny. But it may well be legal. Dontcha wish we still had distinct courts of equity?

03 Oct 05


The temporary fee part 3: political alternatives.

Supposing the fee hikes are legal—what else is to be done? Recall that it was ‘politically unfeasible’ for the Regents to push through a system-wide fee increase to pay for the Kashmiri injunction. So one thing would be to make it politically unpleasant to proceed with the temporary fee.

I’m not a big fan of organizing pickets in front of the Chancellor’s residence and so forth. If you want to get a university’s attention, cut off their money. I for one would be willing to tell the UC system that as a UCLA law alumnus and practicing attorney, I will be withholding donations for some length of time—5 years? 7? 10? forever?—in recognition of the fact that they’ve decided to impose this ‘tax’ now.

If enough people were to do this, it would get their attention.

Some might say—withholding donations only hurts the future students. Perhaps. But if the injunction shortfall wasn’t paid by me & my cohorts, it would have to be paid by these future students. So as far as I’m concerned, there is direct cost-shifting from the future to the present. I’ve done my part to financially support those future students.

Not to mention, why should I donate money to an organization that has proven it possesses poor financial management skills?

I went to Harvard during a time where they had revenue shortfalls and were running deficits. Did they impose ‘temporary fees’ to close the gap? Good lord no. Harvard recognized, as it always has, that squeezing students short-term just costs you in the long-term. Don’t piss off your alumni, especially the high-earning ones.

The Regents seem to take the opposite philosophy, which is odd considering that Chancellor Albert Carnesale was provost at Harvard and would know well the costs of a burn-your-bridges strategy.

A well-managed university would not be looking to cover its shortfalls through regressive taxation—ie. imposing extra fees on the people least able to afford them. Here’s some other options: float some bonds on the public market. Do an alumni fundraising campaign. Borrow from capital reserves. These would all solve a shortfall problem without dropping it on the shoulders of a small group of students.

All around UCLA I see large capital improvement projects in the works—new hospital, new art building, new dorms. I haven’t scrutinized the UC’s financial statements but I’m betting they made the same mistake as the state of California made—during the boom years in the late 90s they expanded capital spending dramatically, and then when tax revenues declined (as any financial manager would know was inevitable) they felt an unusually sharp pinch. With more conservative cash management, I’ll bet the Kashmiri issue would’ve been a blip.

But where is the student outrage? Outrage is a lot to ask though. What about sincere displeasure? Mild annoyance? Help me out here peeps. Last I checked the motto of UCLA law school was not “roll over and take it like a bitch”. Yet since Dean Schill announced the fee in August there has been a seemingly utter lack of student alarm, interest, or awareness of this situation.

I don’t want to impugn those of you who may have been quietly cheesed off. Thank you for your support. However, it’s time to come out of the closet. It would be nice to get some collective action going. It doesn’t have to be everybody. But I don’t know, 20 people? 10 people? 2?

The point to be made is simple. Actions have consequences.

06 Oct 05


Where’s the petition?

Posted by: Pissed Off 3L at October 6, 2005 07:25 PM

I’m down. Why don’t you send out a group email and see what kind of response you get?

Posted by: SA at October 7, 2005 02:24 PM

Turnabout is fair play.

Good news: you don’t have to feel guilty the next time you play spider solitaire during a law lecture.

(Not that you did.)

08 Oct 05


¡Soy un parador!.

In addition to “UCLA Law Review - rejected candidate” I can now add to my resume “UCLA Moot Court Honors Program - quitter”. I had polish, but now I’ve got shine.

I signed up for Moot Court last week. I actually thought it sounded fun, compared to the law review write-on—you know, show up in a fake court, wear a suit, do some fake oral argument.

I guess I was hoping that we would be ‘mooting’, oh I don’t know, a personal injury case or something. Car accident. Dog bite. Something salt-of-the-earth.

What I forgot to figure in was—law students. Would law students actually do moot court around a dog bite? Oh for gods sake no. What was I thinking?

The first surprise was that we had to do a large written brief. Yeah, I guess that’s part of going to court. The Supreme Court, anyways. The court an appellate lawyer is least likely to find herself in during her career. Well OK, I can deal.

Then I ended up with a constitutional issue. That’s cool. But then I looked more closely and realized that I wasn’t being asked to argue the constitutional violation inside my client’s case, I was being asked to argue a large and abstract constitutional law proposition. WTF?!

Wait it’s those pesky law students again! Look I don’t know about you ... and god bless the people who make it through moot court ... but I can’t think of anything more boring than arguing large issues of constitutional law. Because it’s vague, it’s shapeless, the caselaw is blowin’ in the wind, and the outcomes almost always come down to the predictable political moods of the justices.

But the law review write-on six months ago was a huge constitutional law question too. And it was the year before. Why are all these student-run competitions based on con law?

Perhaps because con law serves the same purpose in student competitions as thunderstorms do in movies. It adds drama. It makes you think something important is going on when it’s not. It’s ok to speak or write in a windy, pompous way about con law in a way that you can’t speak or write about, say, contracts.

Moot court about a contract dispute! That would be terrific.

But, it won’t happen. And I suppose they have a point. If you’re going to have a fake baseball game, do you pretend you’re on a minor-league team in Chattanooga, TN or playing the All-Star game?

After reading the research materials this afternoon I realized that moot court is really Grueling Write-On Competition Part II. After that it took me about 5 seconds to email in my resignation.

09 Oct 05


Office hours.

Last year, a 3L friend of mine told me his biggest regret of 1L year was not making more use of office hours. I decided to take his advice, and availed myself of professors’ office hours regularly as a 1L.

So far this year, I have been to an office hour once. I can say to my 3L friend, who is now waiting for the results of his bar exam: you weren’t missing much.

Let’s just get this right out on the table: law professors are weirdos. All of them. And they are just not the kind of people I enjoy spending 1-on-1 time with.

Certainly, each law professor is weird in his or her own special way. But there are a few broad types you run into at office hours:

Mr. Old School. You can tell him your name when you come in & he won’t remember it 3 minutes later. Refuses to make eye contact.

Mr. Hot Air. Fond of long, pointless digressions that never answer your question. So you have to figure out tactful ways of asking the same question over and over.

The Automaton (aka The BSoD). This is a common affliction. You ask the professor some variation on a theme she introduced in class and you get the frozen stare of non-comprehension. After a quick ‘internal reboot’ she will summarize exactly what she said in class, taking no notice of your question.

Man of the People. Usually a young professor, not yet tenured. Tells you to use his first name (to show you how ‘down’ he is) but then twitches every time you do (because it reminds him how far he still has to go).

Ms. Befuddlement. Simply doesn’t understand the material very well and gets flustered when you inadvertently point out errors and contradictions in her explanation. Sometimes confused with The Automaton. Here’s how to tell the difference: The Automaton has mastered the material, but just doesn’t care to answer your question. Ms. Befuddlement lacks the cognitive skill to do so.

Mr. Open Door Policy. The professor doesn’t have fixed office hours and encourages everyone to drop by anytime because he’s “always in his office”. 80% of the time you drop by, he’s not there. The other 20% he’s on the phone and asks you to come by in an hour. At which point he won’t be there.

The Shirker. Another common affliction. She says office hours are Weds 3-5pm. You go by at 3pm and there’s a note on the door saying ‘back at 3:45pm’. You go back at 4:00 and the note’s still there.

Ms. Attention Deficit Disorder. Friendly for about 15 seconds but then starts exuding the umistakable vibe that she has about 23 things laying on her desk she’d prefer to be looking at instead of you. Will always take a phone call while you’re sitting there. May even do some email. Eventually you’ll realize you’re better off asking a classmate.

12 Oct 05


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Posted by: XRumakTheBest at December 1, 2007 02:22 PM

Moot court on other planets.

Mercifully, I’m not alone. Not everyone sees moot court as a terrific opportunity to force students to argue large, obscure constitutional law issues.

[In a national moot court competition run by Loyola, the] students will argue a legal malpractice case in which a former criminal defendant who was convicted of a crime sues the public defender who represented him (and their office) because the PD failed to argue that the police “planted a gun” on the defendant. The plaintiff’s (former criminal defendant) conviction was overturned when the officer was arrested and later confessed to planting the gun.

Where’s UCLA among the competitors? ... hm ... let’s see ... nope, not there.

17 Oct 05


Absolutely remarkable.

Ah, so much blog crabbiness recently. Well here comes some uplift. Last week I learned one of the most amazing things I’ve heard yet in law school. No, really. I was truly astonished, which is rare indeed.

UCLA’s financial controller gave a talk to my litigation class about the cost structures of large law firms. He asked us to ponder how much it costs to recruit an associate. Naturally we all thought about free meals, cruises on the managing partner’s yacht, $2300/wk for a summer’s worth of sweet FA.

But that’s not the whole picture, he cautioned. Associates and partners have to visit schools to conduct interviews for OCIP. Then they have to do callbacks. These all take time which could conceivably—actually, would definitely—otherwise be billed to clients. So that’s a measurable opportunity cost.

Then, you have attrition. After all the interviewing, many won’t take the summer offer. After taking the summer offer and the wining & dining, some won’t take the permanent offer (and some won’t get the permanent offer.)

Thus you have to sum all these costs and divide them among the relatively small number of associates that will end up with their well-educated asses warming Aeron chairs on the 45th floor. That is the true measure of what it costs to recruit each of a season’s worth of associates.

So what is the number per associate? I want you to think of your answer and then roll over the box below:

Nobody could believe it, but the Controller assured us that it is an accurate estimate for large firms.

Suppose you’re a partner in one of these firms. Now wouldn’t you be saying to yourself gee, if I could reduce attrition among my associates, I could recruit fewer each year, and just keep that money in my pocket. Judging from the actual attrition rates, I guess this interior monologue is not happening.

Anyhow—for those of you headed to the world of big law—if you think you have debt, console yourself by thinking of your employer, who has just shelled out big-time for the pleasure of your company.

18 Oct 05


Bench bling.

From the Administrative Office of the U.S. Courts ... the net worth of the members of the Supreme Court (excluding homes, autos and salaries). For mysterious reasons it’s given as a range, but you can get the general trend. There’s three basic tiers.

The Full-On Mack Daddies:

Souter: $5.3M - $25.8M

Ginsburg: $5.8M - $24.0M

Breyer: $4.2M - $15.5M

Not Too Shabby for a Government Employee:

Scalia: $2.0M - $7.2M

Roberts: $2.6M - $6.7M

O’Connor: $2.6M - $5.7M

Stevens: $1.4M - $3.1M (however, he’s 85—did he never learn of the magic of compound interest?)

Dude, Where’s My 401(k)?

Thomas: $150K - $400K

Kennedy: $80K - $230K

19 Oct 05


So you’re saying that there might be a relationship between liberal guilt and being wealthy? Shocking. I guess it’s easier to vote to allow for a private developer to take somebody’s home when you know it will never happen in your ritzy little neighborhood.

Posted by: dont aks like you don’t know my name at October 19, 2005 11:28 PM

Recruiting costs pt 2.

Another piece illustrating where those recruiting dollars go:

In the fall 2003 recruiting season, Fried Frank lawyers interviewed some 1,100 law students around the country. Approximately 90 partners plus a recruiting staff of six participated in the effort, which began in August and lasted until early December. On each campus, most partners took on one schedule, which included 18 to 20 students, or sessions. During Interview Week, the days started at 9 a.m. and ran at least eight hours, with three breaks ...

At most major firms ... about half the students interviewed on campus get a callback. Maybe seven in 10 accept. Many decline; some never respond. Of the students who accepted callback invitations to Fried Frank’s New York office last fall, 57 eventually accepted offers to work as summer associates in 2004.

You got all that? It takes 1100 initial interviews and 385 callbacks to yield 57 summer associates, and some smaller number of those actually become permanent associates.

(What kind of law firm name is that anyways? I see ‘Fried Frank’ and I think ‘corn dog’.)

20 Oct 05



I went riding at a racetrack today. How many waivers do you have to sign first? A lot. My favorite part was this somewhat defective summary of California negligence law:

In California, a person may be actively negligent either by doing some act or by participating in some manner in some kind of conduct or omission which caused an injury (for example, a decision made by school staff not to place a flag man at a spot where a collision later occurs) ...

In other words, negligence is defined as causation.

I accept and use all equipment furnished to me “as is”, with any defects, whether apparent or not. I intend to release [all the] equipment suppliers from any strict or product liability for my injury or death.

This part got me thinking about Asahi, World-Wide Volkswagen, and whether I could obtain personal jurisdiction over Kawasaki anyhow. Made me a little misty for first year civ pro.

22 Oct 05


The 60-Year-Old Virgin.

I just read this morning that Harriet Miers is still the nominee for the Supreme Court! I can’t believe it. Now here’s somebody who can’t take a hint. No wonder she has not been so successful with her dating life.*

I’m sort of looking forward to the confirmation hearings, which will doubtless be the most entertaining since a certain pubic hair once flitted onto a certain Coke. But I think it’s more likely that Miers will fake a wicked stomachache and ask to be sent home. Or tell everyone that the White House staff was playing ‘truth or dare’ and for her turn, it was this or make out with Karl Rove.

* OK that was cruel. But here’s the thing. Everyone wants to know how serious a conservative she is, right? And conservative Christians don’t believe in premarital sex, right? So a conservative Christian lawyer ... who has never been married ... should be a virgin, right?

While the media is not making this analysis in so many words, there has been a strange fixation on uncovering former paramours, like Jim Martin, a law school classmate:

“She was a lot of fun,” he said. “Good sense of humor. Cute. She was athletic. She was a very good tennis player, and we played a lot of tennis. She’s just a very good sort of regular person. No airs about her.”

One night, after another grueling workday, they met for a late meal at a Denny’s restaurant. Over a plate of eggs over easy and ham, they broke it off.

“Our time wasn’t our own,” he said. “She’s a very warm and caring person and would make someone a wonderful wife. It’s just that she’s extremely focused on her career. In that context, she has never had enough time to carve out a significant relationship that would take a great deal of time.”

Doesn’t that just break your heart. But “fun”, “cute”, “athletic”—come on, you seriously think they didn’t do it?

But MB, you argue, how could they have had sex? They were law students. Yeah, good point.

We also have the curious case of Justice Nathan Hecht of the Texas Supreme Court:

For 30 years, Hecht and Miers ... have nurtured a kinship that has entranced and confounded their closest friends. They are traditional conservatives content in a modern, nontraditional relationship, one that leaves plenty of time for their true love, their work, to take center stage.

Romantic at times, the relationship has played an important role in their ascent to power—she as White House counsel, he as a justice of the Texas Supreme Court, where he has served for 15 years ...

“We are good, close friends,” he said Friday. “And we have been for all these years. We go to dinner. We go to the movies two or three times a year. We talk. And that’s the best way to describe it. We are not dating. We are not seeing each other romantically. Not currently.”

Can we seriously infer that they have been seeing each other for thirty years and never did it? Now you see what’s really at stake in these confirmation hearings.

UPDATE: 48 hrs after this post, Miers has withdrawn. Coincidence? You decide.

25 Oct 05


You’re really in the service now.

Members of my tax class were required to go see Donald Korb, chief counsel for the IRS, speak at UCLA this week. It was pretty weak all around.

To begin, one of our business law professors spent a few minutes kissing Korb’s ass. Then Korb got up and kissed his own ass for another 10 or so. It’s clear you don’t get to be chief counsel of the IRS unless you’re a pretty accomplished & talented guy. But Korb went on and on about all the important tax laws he had been a part of in his early career, eg. “Can you believe I was helping design the capital basis recapture rules—at age 28?” Gee, that’s incredible.

It started to make more sense, if not become more tolerable, when it became evident that a major goal of Korb’s visit was to recruit students to work for the IRS. He congratulated himself on coming up with their new recruiting slogan “it’s a great place to start”.

That shows creativity worthy of a federal government agency, I’ll grant him that. But doesn’t it imply that the IRS may be a great place to “start”, but not a great place to “stay”? I think most people imagine if they’re going to be mercilessly exploited for the first few years of their career, might as well do it for top dollar in private practice.

The rest of his talk was strangely devoid of any substantive commentary on the state of the tax code or tax policy. His big speculation was considering whether Form 1040 could be redesigned in landscape format, or on two sides of a postcard. He spent a long time on some anecdote about his wife bugging him to clean the garage. And then he left.

To be fair, the kind of people who enjoyed this talk are probably exactly the kind of people well-suited to work in federal govt. So as a recruiting tool, it may be ideal.

27 Oct 05


Happy Halloween ... punk.

Seen this morning along the entire length of Sunset Blvd.

UPDATE: So many of you UCLA students read this site, and how many candygrams did I get today as token of your gratitude? Yeah, zero. I’m not going to count the certain someone who skimmed off the bits he liked from his own candygram and gave me the rest. It’s not really the same, is it.

31 Oct 05


And how many did you give out to your loyal readers, hmmmm? I know MY mailbox was sugar-free this year.

Didn’t Momma tell get back what you give!

Posted by: at October 31, 2005 09:55 PM

I don’t even need to guess who that certain someone is.

And let’s not forget, candy’s bad for you. We can’t have you suing Nestle for making a defective product that caused your teeth to fall out...

Posted by: at October 31, 2005 10:42 PM

Hey, if you want fan appreciation day, go to Dodger Stadium. I work for (as yet nonexistent) tips.

Posted by: MB at November 1, 2005 12:26 AM

matthewb @ ucla
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