Sunday, March 08, 2009

Portrait of the Street Strategist as Bar Examiner Part 3

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Portrait of the Street Strategist as Bar Examiner - 3 -
his is the continuing pseudo-treatise on the portrait of the Street Strategist as a bar examiner on how to maximize the effectiveness of the bar examinations as the only reference performance metric (RPM) of the candidate, and how to minimize its inherent shortcomings.
In Part 1, we discussed the oblique ratio decidendi establishing the reason why a person who is not even qualified as an examiner should possess the wisdom to conjure up this treatise. In Part 2, we discussed the basic operations of the bar examinations.
In this part, we shall discuss the species of bar examiners, their positives and negatives.
Choice of examiners
While the Chairman of the Bar Committee is known, the identities of the eight bar examiners are classified as one of the eight mysteries of the world.
Since, invariably, the examiners are residing or working in the capital region, the bar candidates in the capital’s law schools have an advantage. The examiners are either their former professors, or their fraternity brothers.
Since there is a one-year prior freedom period where a professor must sever himself from any institution of law or review center, any professor or bar reviewer who suddenly takes a leave of absence or pretends to be sick is a suspected examiner for the next year’s bar.
If you were his student, you can delve into certain “inheritance”, which are the lecture notes and previous exams previously given by the professor. The provincial candidates with no inkling that a certain professor is a suspect, much less with respect to the latter’s favorite topics or questions, are certainly disadvantaged.
For this reason, the Supreme Court and the bar confidant protects the identities of the mysterious octet with the zeal of atomic bomb researchers.
But then, as with any tight secret, there’s always a chink in the armor. Take the case of a recent bar exam. The examiner for Mercantile Law is a practicing lawyer of one of the currently powerful law firms in the country. However, according to accounts, one lawyer-colleague of his, stole the bar exam questions from the bar examiner’s own computer over the network, hence the leakage. This caused the Mercantile Law exam to be avoided. The lawyer-colleague was eventually disbarred.
This begs the question: How on earth did his colleague know that he was the bar examiner?
The first logical choice for examiners are retired Justices of the Supreme Court and the Court of Appeals and other judges. Sitting judges don’t have time to check answer booklets.
The advantages of appointing former judiciary members as examiners are obvious. On the hand, the following are the disadvantages. First, they usually tend to ask questions about decisions they have written, and therefore, the range of issues could be restricted. Second, they are senior citizens, therefore, the burden of checking 50 answer books every day for 5 months may cause them skim over the answers.
The practicing lawyer has certain advantages such as expertise on a particular field, and certain issues of the day, and therein lies the Janus obverse.
Unless he was a former professor, the practicing lawyer, after two decades of practice, maybe far removed from the academe. As such he may have forgotten what it is like to be a student. He may no longer appreciate that the candidate has many other subjects to master.
The expertise of the practitioner may seduce him to think that all bar candidates should be like him, at his level of expertise, on a particular field like what he has been doing in the last twenty years.
This expertise may give him narrow blinders forgetting that the subject is actually broader in scope than his expertise. Such blinders may be unfair to the candidates. For example, an expert of intellectual property law may ask three questions on intellectual property out of twenty questions in Mercantile Law. This is not a judicious distribution of bar topics given that this law is a very minor part of the broad range of Mercantile Law.
For example, an international law expert will ask four questions on international law to the detriment of the other more serious and more useful issues on constitutional and political law.
The practitioner who has no teaching experience may have lost his sense of weight and proportion regarding the several topics of a bar subject, and may not be apprised of the latest jurisprudence on topics other than on his own narrow field, hence, he is the most dangerous species of bar examiners.
The academic professor or bar reviewer is probably the most judicious of all the species. He has the maintained the sense of weight and proportion each of the topics covered by the bar subject. He has studied and maintained his discipline in analyzing the jurisprudence and even writes critiques on the recent questionable decisions of the Supreme Court. He knows how to apportion the twenty questions that will cover a correct assessment of the bar candidate more than any other species of bar examiners. After all, he has an outline of the subject that he uses to teach.
The argument that academics are theoretical, and not practical, may be valid in other fields of discipline such as physics or engineering but is not a valid argument in the legal profession.
Why? Of all the professions, law is the most practical one. In fact, the line between theory and practice in law is tenuous. Law, after all, is practice. The study of law is the practice of law.
When the professor criticizes a Supreme Court decision, what can be more practice than that? Law is an intellectual endeavor, therefore, being mental, the difference between theory and practice exists only in the mind.
Practically, there is no difference between theory and practice in law.
By the way, when practitioners claim that there is a difference between theory and practice in law, they are usually referring to the naiveté of the academic theoreticians in the corrupt applications in the practice of law. Am I right?
The pure professor can devote 100% of his time to checking, and this is very important, as we shall later discuss.
The disadvantages of this species are apparent. His absence is immediately suspect. His favorite angles to the topics favor his former students, although the redeeming factor is that if the questions are not whimsical then other candidates are expected to answer them with equal grace.
Overall, if one reviews the bar questions in history, the most logical, the most judicious and well thought-out questions were formulated by professors who were at the top of their fields.
By the way, the brilliant jurists in the history of the Supreme Court were mostly from the academe and they were appointed on the basis of their brilliant legal minds grounded with solid academic teaching backgrounds rather than on their political lineage.
Is teaching law a practice of law? Since the time of the first bar exams in 1913 when Manuel Roxas was the topnotcher with a grade of 92%, this question has been percolating among the occupants of the bench and the bar.
Did you know that as late as 1986 the Minister of Justice opined that teaching law is not practice of law? The opinion cited Quaker vs. State Bar of Texas as to what is considered practice of law. Jettison these foreign arguments.
Amazing but true. The logic? Law professors do not deal with clients. Funny.
In fact, it was only in the case of Cayetano vs. Monsod that the Supreme Court finally adopted the tact that teaching law is practice of law.
Thus, it was only in September 1991 that, finally, the Supreme Court decided that teaching law is a valid and recognized practice of law despite the fact that professors do not interact with legal clients. In the period from 1913 to 1991, almost 80 years, the law professors were subjected to an oppressive, ignominious, undignified injustice.
Even then, two Justices dissented in this case.
I haven’t read the case yet, but if there were dissenting opinions, the majority opinion must not have been perfectly argued. Why? Because if I wrote the decision I would have demolished all possible dissenting opinions before they could be formed. It is not the dispositive portion that interests me, but how it was arrived at.
If I were the Minister of Justice in 1986, or if I were the ponente in the case of whether or not teaching law is practice of law, how would the decision read?
Heavens forbid that I become a Justice of the Supreme Court, otherwise, all my cult followers will devour my decisions. If the issue is whether teaching law is practice of law, here’s how I would argue and elucidate on the issue and decide for yourself if you can form a dissenting opinion against my disquisition:
The Street Strategist hereby declares that there can be no greater practice of law than creating lawyers out of ordinary mortals, and if such practice is not embraced within the traditional definition of what constitutes practice of law, then by all means, cut the Gordian knot of ignorance by changing the definition, rather than adhere to a definition that creates an absurdity that excludes the grand and noble act of the formation of legal minds as beyond the ambit of the practice of law.
to be continued
(Thads Bentulan, June 17, 2004)
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