Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts

Wednesday, March 11, 2009

Portrait of the Street Strategist as Bar Examiner Part 1

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Note: This series was first published in 2004 in my column in BusinessWorld. 
Several of the suggestions in this series have been adopted by the incoming Examiners as early as 2005, the least of which are simple but helpful suggestions such as the use of proper names like Juan, Jose, and Maria, instead of A, B, C; and the use of problem solving rather than memorization and the use of the Discriminating Question. 
Also since then, the two bar topnotchers mentioned in Part 1 have become prominent; one of them is now a presidential hopeful for 2010, and the other, now a Justice of the Supreme Court. 
Who has read this series way back in 2004? The readers of the newspapers and the law students and some professors back then. 
1. The Supreme Court justices were furnished CDROM versions of this series. There is no proof they actually read it. 
2. Many law deans and professors as stated in this letter below sent to me way back in 2004:

Consultant’s consultant 
Before we proceed, I was amused by a letter I received from a senior lawyer of a very powerful law firm. He was a 7th placer in the bar. He wrote: “I thoroughly enjoyed your series of articles on the bar exams. I was wondering how I could get a complete copy of the series, as I would like my colleagues, some of whom are members of the Philippine Judicial Academy and consultants of the Supreme Court on reforms, to read it. “Sometimes, it takes someone from the outside looking in to remind those inside of plain common sense and reason. “I do intend, with your permission of course, to give a copy of the print out to the following people who I either work with or deal with on a regular basis: 
Former Dean Eduardo de los Angeles (Ateneo) 
Former Dean Cynthia del Castillo (Ateneo) 
Dean Andy Bautista (FEU) 
Dean Perry Pe (Palawan State University) 
Dean Dante Cadiz (Enverga) 
Dean Jud Roy (Pamantasan ng Lungsod ng Maynila) 
Dean Cesar Villanueva (Ateneo) 
Fr. Joaquin Bernas 
I'm not sure if they've read it but I strongly believe they should.” 

Thank you sir, for your letter. As for common sense and reason you may like to read my article called the Seventh Sense written in 2003. 
And if ever the consultants of the Supreme Court and the Philippine Judicial Academy eventually find the Street Strategist’s Kennen und Wissen (SS-KW) philosophy useful in one way or another, what does that make the Street Strategist – a consultant’s consultant?)
Portrait of the Street Strategist as Bar Examiner

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he bar examinations is the single most important criterion for the Supreme Court to admit law school graduates into the practice of law.
The bar examinations is the single most important reference performance metric to measure the candidate’s total knowledge of the law and jurisprudence.
And this pseudo-treatise is the sum total of the wisdom of the portrait of the Street Strategist as a bar examiner on the subject of how to maximize the effectiveness of the bar examinations as the only reference performance metric of the candidate, and how to minimize its inherent shortcomings.
None of the qualifications
The Street Strategist has never been appointed by the Supreme Court as a bar examiner. But then, this is not a strange omission.
Indeed, appointing him would be a bizarre commission. He is not known. He is not an expert. And, most importantly, he is not qualified.
Yes, I am not known, but, then again, I am the most famous unknown, proof of which is my essay Famous Man.
Yes, I am not an expert, but then, there were a few occasions where my pseudo-treatises were used in corporate brainstormings, assigned as readings in business schools including an American university, and quoted in PhD papers abroad, the latter case, at least in one occasion.
And don’t forget The Accounting Wizard, my deconstruction of the accounting debit and credit, that has been formally adopted by an accountancy school, and later, by a law school, and was subject of a paid full-page criticism by the accountancy organization.
These mental calisthenics were distillations of my curiosity as an amateur always trying to defy the experts.
But then, that’s me.
As much as possible I don’t accept the experts right away, although I use their judgment as my initial reference point. Being experts, they are almost always right; yet in isolated instances, I discover fresh viewpoints; and in all cases, I learn, anyway. It’s a no-loss situation.
Yes, I am not qualified. There’s nothing that the Supreme Court can do about it, even if it wanted to.
Yet, after proving that I have none of the qualifications and all of the disqualifications, why insist on this treatise on the portrait of the Street Strategist as a bar examiner?
All the disqualifications
Yes, the Street Strategist has none of the qualifications and all of the disqualifications of a bar examiner, yet, there is one single reason for you not to throw this treatise outside the window.
This portrait is the definitive sum total of the wisdom of the Street Strategist on the issue of the bar examinations.
So what?
The portrait of the Street Strategist as a bar examiner is valuable by virtue of one single most important raison d’etre: He is the Street Strategist and he can see what everybody else has seen and think what nobody else has thought.
Court of final resort
First, I would like mark out the parameters of this disquisition. I am not questioning the integrity of the Supreme Court; I am not questioning the competence of the Supreme Court; neither am I am questioning the wisdom of the Supreme Court and its appointed bar examiners over the years with respect to the bar examinations.
The Street Strategist is not questioning the wisdom of the Supreme Court, instead, he is summarizing the definitive total wisdom of his own.
And if in the process, the wisdom of the Supreme Court clashes with the wisdom of the Street Strategist, there can be only one final reigning wisdom – the infallible wisdom of the Supreme Court, the court of final resort.
The Supreme Court’s wisdom is final not because it is infallible; rather, its wisdom is infallible because it is final.
Law of entropy
Now, that we have established that the wisdom of the Supreme Court is final in case of conflict with the wisdom of the Street Strategist, is there still any residual value at all in listening to his portrait as a bar examiner?
Yes, there is. Unlike the quaternions of physics, which are subtractive when contrapuntal, the vectors of wisdom are additive, despite being contrapuntal.
Contrapuntal vectors of wisdom never destroy, obliterate, or annihilate each other. Wisdom is invariably additive, never subtractive. Contrapuntal junctions of wisdom have a natural way of augmenting, adding, clarifying, and refining the original opposing wisdoms.
After listening to the wisdom of one party, the adverse party will either succumb to the opposing vector of wisdom, or assimilate the weakness of such wisdom as a positive reinforcement of his own.
In other words, if the opposing vector of wisdom is intellectually superior, you succumb to it. If it is weak, you can use its weakness to reinforce your own wisdom.
Either way, the accumulated wisdom in the universe is always increasing, never decreasing. This is called the Law of Entropy of Wisdom.
At this juncture, I have to make a confession of judgment.
I have to apologize for having dragged you this far into this treatise. You may abandon this journey, right now.
It is ridiculous for the Street Strategist to possess any wisdom at all that is worth the precious time of those who may have been seduced into thinking that I have some brilliant strategy to offer.
Indeed, at the outset, I may have made false promises. I have promised to redeem the cumulative wisdom of the Supreme Court with respect to the bar examinations.
In so doing, I may have seduced some people into thinking I can offer more than the current fare of wisdom, and these unsuspecting people may include justices of the Supreme Court, the justices of Court of Appeals, members of the bench, members of the bar, and the bar candidates.
Therefore, before I seduce your further with false advertising, I pray that you abandon this journey.
I’m sorry for wasting your valuable time this far. This disquisition is designed as an exercise of thought, mind, logic, wisdom, and more importantly, an act of entertainment.
Nothing more.
Again, I’m sorry. But you didn’t really, seriously, expect that I have wisdom enough to purify the cumulative wisdom of the Supreme Court, did you?
That would have been a ridiculous expectation, right? Now, you can throw this treatise out of the window.
Bye, bye. It was nice meeting you.
By the way, whenever there is an audience, there are always queer ones who want to be part of the seduction.
Yes, you can fool some people all of the time.
With this in mind, just before you decide to abandon our amusing journey, bear in mind that some people do find wisdom in the ideas of the Street Strategist.
Speaking of the bar exams, I can think of at least two people who may try to stick it out with this pseudo-treatise.
Why? Because, previously, they wasted some of their extremely precious time reading my stream-of-consciousness ramblings.
What can I say? I think these two are among those with refined intellectual taste by reading the Street Strategist.
The Justice
The first one who I think will stay with me in this journey, and I hope I’m not mistaken in counting him as one of the residual voyagers, works in the judiciary.
Currently, he is now a Justice of the Court of Appeals. Oh, yes, he does read the Street Strategist whenever he could, I presume.
Now, now, Justices of the Court of Appeals are not a dime a dozen. This person alone is probably the equivalent of 10,000 readers. I don’t need thousands of readers to justify my existence; I need only one Justice of the Court of Appeals.
But you might question the propriety of counting him as one of the serious followers of the Street Strategist. What is my basis for such a claim?
Well, all I can say is, he went as far as ordering the first edition of the first book of the most famous unknown. I think that should count. Fair enough?
And yet, that is not enough. This Court of Appeals justice was a bar topnotcher, Yes, number one in the bar exams.
It should be easy to identify him if you want. How many number one topnotchers could there be in the Court of Appeals? Several? Okay, granting there are several, but how many of these number-one topnotchers have copies of Strategy Myopia in their bookshelves?
When he purchased my book he was not yet a Justice, and I didn’t know he was number one in the bar. I just read his name in the paper upon his appointment. And even to this day, I have not met him.
Now, guys, are you really going to abandon this journey of ours?
The Congressman
Wait, a minute, I mentioned there are at least two.
I know there are staffers in Congress who follow my misadventures; however, I didn’t realize that this fancy extends to the congressmen themselves. Okay, I admit, at least, one.
There is this congressman who asked his executive assistant to call all the bookstores to obtain a copy of my book to no avail because it is not distributed publicly. Eventually, the wonders of e-mail short-circuited her work.
This young congressman liked some of my ideas that he wrote a letter, which was eventually published in BusinessWorld. Never mind that he is very rich, as that does not necessarily transform him into a certified Street Strategist cult member.
However, there was this one additional information that I gathered from my friends. They said, “You don’t know who he is? Do you know his middle name? And do you know that he was a bar topnotcher?”
Ah, pardon my ignorance, sir, but you were really number one in the bar examinations, I finally found out. That’s something.
So it is easy to identify my readers. How many rich young congressmen out there who placed number one in the bar? Several, again? If so, how many of these have copies of Strategy Myopia in their bookshelves?
Now, guys, are you really going to abandon this journey of ours? If these two bar first placers went out of their way to tell me they enjoy our pseudo-intellectual games and purchased my magnum opus with my golden autograph, who are you to defy their intellectual taste?
By the way, before we leave these topnotchers, whom I have never met, there’s just one minor thing.
I have a theory that the reason the young congressman became a bar topnotcher on that year was due to a very fortunate incident. He was so blessed because the life schedule of the Street Strategist was shattered to random chaos, otherwise, if my earlier plan wasn’t yanked out of me, he and I would have clashed on that particular year, and he wouldn’t have been number one, I tell you.
And for the first time in the bar exams there would have been three persons in the top ten with the same first names and the same middle initials.
Cheer up, guys, just theorizing on the possibilities. So, are you really abandoning me? Come on, you’re in fine company.
Real reason
Seriously, guys, before we delve into my portrait as a bar examiner, the real reason why I feel competent to offer my wisdom is that I have a far greater experience in the area of examinations.
Not so much as the experience of constructing examinations but in the experience of taking them. The problem with those charged with constructing examinations is that they are experts in their fields, therefore narrow-minded.
They have limited experience in how the exams in other fields are being designed, constructed, and conducted.
Besides, since they have been chosen as examiners, there is a conclusive presumption that they are brilliant and intelligent.
Therefore, they are probably out of touch with reality of the mediocre, average candidate. And they are not accustomed to taking the same exams over and over again, or taking many different exams.
These people are the statistical outliers, they are aberrations, and lo and behold, we use their aberrant experiences as the basis of a general examination.
On the other hand, I have probably taken more examinations than 90% of the population. And these examinations were not confined to a particular discipline. Some science, technology, mathematics, some economics, some law, some finance, something of everything, I’ve tasted them inside or outside the classroom.
Furthermore, my experiences were vicious mental struggles. Like many other candidates, in those examinations, I felt that the questions presented were far from the real state of my knowledge. In other words, I could have passed those exams, or performed better, if the questions were representative enough.
During those exams, I always felt that I was being unfairly assessed.
Again, to summarize, my expertise is not in the subject of the exams, but in the examinations themselves, how they could be designed better, and how they could assess an ordinary examinee like me.
The experiences of the topnotchers do not count. They are the statistical aberrations.
I hope that my dismal experience as a struggling examinee will transform me into a brilliant examiner. And that is exactly what the portrait of the Street Strategist as bar examiner is all about.
Bar none
Should the bar be abolished? No. Despite all its shortcomings, the bar exams serves as a reference performance metric against which all law graduates must be measured. Given the sacred nature of the bar exams, it should not be trifled with, especially by the bar examiners themselves. Now, that’s a hint.
As a performance metric, the bar exams has two major phases that are beneficial to the bar candidates.
The first phase is the comprehensive review called the pre-bar review. It is judicial notice that after the pre-bar review, the average candidate has more knowledge on hand at their command than someone with a decade of experience as a Regional Trial Court judge.
Unfortunately, I feel that the Supreme Court and the bar examiners ignore the value of this phase. Or even if they do, they have no ostensible procedure by which this is measured. There are 20,000 possible questions on Political Law alone, yet, only 20 are asked in the bar exams, or 40 questions, if we include the follow-up sub-questions.
This is an unfortunate situation because such 20 questions are a narrow-band measurement.
The truth is, the greater the number of questions bombarded at the candidate, the greater the probability that the bar exams is going to capture a broader spectrum of his knowledge of the law and jurisprudence.
Just as in a market survey, the greater the sample, the more accurate the representation, subject to the law of diminishing returns on accuracy given the same confidence level and error of margin.
By the way, for the uninitiated, the entire fourth year in law school is actually dedicated to review.
Thus, some of the subjects are Civil Law Review, Criminal Law Review, or Mercantile Law Review.
In other words, the six-month pre-bar review is a review on top of the fourth-year law school review.
The second phase of the bar exams as a performance metric, is the actual examinations itself. Despite its shortcomings such as being limited to only 20 questions per bar subject, inter alia, the candidate has no recourse but to capitulate to the process.
By the way, do not forget that this pseudo-treatise is a reflection of the sum total of the wisdom of the portrait of the Street Strategist as a bar examiner about how to maximize the effectiveness of the bar exams as the reference performance metric of the candidate and how to minimize its inherent shortcomings.
Oral bar
In other jurisdictions, the bar consists of a written phase and an oral argumentation phase but then, these countries do not have 5,000 candidates annually. As such, oral exams is impractical.
The trial practice of law does not mean practice for trials. It does not mean trial and error exercise of the profession. Yet this happens because there are many candidates who later become lawyers without ever observing any case being tried. Some lawyers haven’t even seen nor set foot in any trial court at all. It’s true.
Thus, the written bar exams has an additional mandate: It should rise up the challenge of being an equitable proxy to an oral bar examination. Pursuant to such mandate, the written bar must ask questions that approximate the candidate’s thinking analysis rather his photographic memory.
Thus, the written bar should approximate the ability of the candidate to think on his feet as would have been obtained in an oral bar.
To be continued
(see the other parts of this series already posted in the blog)
(Thads Bentulan, June 3, 2004)
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Tuesday, March 10, 2009

Portrait of the Street Strategist as Bar Examiner Part 2

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Portrait of the Street Strategist as Bar Examiner - 2 -
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 this installment, we shall discuss the basic operations of the bar examinations.
Prior to admission into law school, one must have a Bachelor’s degree with major in political science, English, Spanish, history and economics under Rule 138, Sec. 6 of the Rules of Court. However, the Supreme Court is not strictly enforcing this, relying instead on the Certificate of Eligibility for the Bachelor of Laws program issued by the Commission on Higher Education.
Thus, other Bachelor degrees that contain a minimum amount of certain units in English, or political science have been certified by CHED.
Unexplained variance
There is one curious situation in law school. Students who were brilliant in college seem to be struggling in law school. It is not easy to identify and explain the variance of their mediocre performance in law school compared with their excellent performance in college. Is law harder than accountancy or physics?
What is the logic behind this unexplained variance? There is one convincing theory. The reason is that Bachelor of Laws is necessarily a second academic degree. So what?
Think of your college days. As a full-time accountancy student, did you have classmates who were part-time night-time students? Did you expect them to be of Summa Cum Laude caliber? Did you expect CPA board topnotchers out of them? Definitely, not, after all, they were merely working students. You were even wondering if they’ll finish accountancy in the first instance.
Now, since Law is a second degree, almost all law students are working students with no time to read the jurisprudence and no time to memorize the provisions. That’s the main logic of the variance.
The law may be hard
There is a principle of law that says dura lex sed lex – the law may be hard but it is the law.
This means that sometimes the law, when applied, will result in a harsh decision but we cannot do anything about it because it is the law.
The remedy, of course, is for the legislature to cure the harshness by amending or abrogating the said law. In principle, remedial legislation is uncomplicated.
However, in practice it may take five decades, given the personal financial priorities of our legislators to recoup their unreported egregious campaign expenses.
But let me pose the question: Is Law hard? As a degree, I mean.
The Street Strategist summarizes it this way: The law may be hard (dura lex) but the law, as a subject matter, is very easy.
Yes, I’m going to repeat that. Law is one of easiest subject matters to study.
In fact, high school algebra is more difficult. For example, a physics graduate can read and understand a textbook on Political Law on his own, even without attending a single class. Can you expect a political science graduate who is now a lawyer to read quantum mechanics on his own?
In other words, anybody can read the law but not everybody can read mathematics. There is a non-commutative relationship.
It is very simple to study law. Just read and remember. That’s all. No mental acrobatics of factoring trinomials, no mental calisthenics of the Black-Scholes option pricing theory, and no mental contortions of integral calculus. Just read and remember what you read. Even a high school graduate can do that.
If studying law is very easy, how come many flunk the bar exams?
Simple rationale: Lack of reading and remembering. Remember that Bachelor of Laws is a second degree. Almost 90% are working students which by nature is strictly contrapuntal to the requirements of the study of law: time and memory.
Thus, those who flunk in the bar never had the time to read the law, and never had the good memory to remember the cases assigned in law school, and they are cramming in the six-month bar review. The main culprit is that they were working students with no time to read.
By the way, don’t ever believe those who say that memory is not required in law. How can you remember what you read if you don’t have good memory?
If what you read in freshman law tends to be a dark memory in your senior year, then you’re dead. However, there is a redeeming grace. Constant repetition and comprehension of the law is a good substitute for memory.
By the way, another reason why many of the working students flunk, aside from lack of time to read and memorize, is that they don’t have any strategy on how to attack the problem.
It’s so funny how college geniuses who don’t have time in law school fight the problem with brute force reading and memorizing.
Where is their brilliance? They have the brains but they don’t apply it. That’s why, sometimes, its fun to be a struggling student like the Street Strategist. I may not be brilliant but at least I know how to identify problems.
The students and the professors have no strategy in studying law. This is not the time to discuss, but I tell you, the way law is taught by the professors is wrong, not only in the country but worldwide.
I’m talking about strategy in studying law. Yes, that is a sweeping statement but I did it before. I made a sweeping statement that the accounting professors are wrong in the way they teach debit and credit.
There is no cohesive strategy that candidates employ in the study of law.
Well, that’s the case of seeing what everybody else has seen and thinking what nobody else has thought. Remember, I was the one who had the courage to tell the entire accounting world they do not know how to teach debit and credit.
Soon, I will tell the world that they do not know how to teach law and I will show them how. But not now.
Bar subjects
The bar examinations is a one-month ordeal administered in four consecutive Sundays in the month of September.
On the first Sunday, the subjects are Political Law and Labor Law. On the second Sunday, the subjects are Civil Law and Taxation. On the third, Mercantile Law and Criminal Law, and on the fourth, Remedial Law and Legal Ethics.
The subject with the biggest weight is Remedial Law at 20% which is the subject on how to enforce the law. You may not believe it, but Remedial Law is all about the Rules of Court, including how many days you are given to respond to a pleading, or whether the testimony of a witness will be admitted. In other words, the subject with the greatest weight is one which is not strictly about law but about how and where to file cases.
Political Law includes constitutional law, political law, administrative law, election law, local government code, municipal corporations, human rights and international law. Can a municipality enact an ordinance imposing on movie houses to grant a 50% discount to children?
Labor Law covers the Labor Code, social legislation, sexual harassment, and agrarian law. Is a pension fund fully funded by the company with no employee contribution subject to collective bargaining?
Civil Law includes the Civil Code, the Family Code, Adoption Laws, Property Registration and conflict of laws. By the way, the Civil Code alone has more than 2,200 articles. Now, you’re telling me that memory is not needed? Just try this, what are the differences between a precarium and an antichresis.
Taxation covers the National Internal Revenue Code, Tariff and Customs Code, and the Local Government Code on taxation and how to enforce remedies therefor. Is income tax expense a valid deduction from gross revenue for the purpose of determining the return on rate base for a utility?
Mercantile Law covers the antiquated Code of Commerce (which is so old there is no number of this law unlike other laws like RA 3952, the Bulk Sales Law). It covers Letters of Credit, Warehouse Receipts, Negotiable Instruments, Insurance Code, Transportation laws, maritime laws, Corporation law, Securities law, banking law, Intellectual property law, mortgage, and insolvency. Does the doctrine of the last clear chance apply to maritime collisions?
Criminal Law covers the Revised Penal Code, which in itself is daunting array of distinctions. When is it grave coercion or kidnapping or arbitrary detention? This covers probation law, anti-fencing law, other specials laws including the Anti-corruption law.
Remedial Law covers the Rules of Court. The Rules are subdivided into Civil Procedure, Criminal Procedure, Evidence, Special Proceedings, Summary Procedure and other related laws. Is the decision of a division of the Supreme Court considered a decision of the entire court itself? What is the difference between appeal by certiorari and the special civil action of certiorari?
Legal Ethics is probably the most violated of all laws by lawyers and judges. In addition to ethics, this subject includes legal forms and exercises.
Bar Committee
The chairman of the Bar Committee is an incumbent Justice of the Supreme Court that changes every year. He appoints Bar Examiners from the former Justices or judges, practicing lawyers and sometimes from the academe.
Recently, a special study group on the Bar Examination reforms suggested certain qualifications and disqualifications of Examiners. Among the qualifications are expertise and the capacity to check test papers personally, and on time. This is the reason why sitting Justices of the Court of Appeals or judges in the Regional Trial Courts are seldom chosen as examiners.
Relationship with an examinee within the 3th civil degree, staff or family members of his staff, connection with a law school are disqualifications. For this matter, professors usually take mysterious leaves of absence from school for one year, and he becomes a suspected examiner. The search for his lecture notes and previous quizzes starts immediately.
The identity of the examiners are only revealed after the bar exams to the other members of the bar committee. The public knows them only at the time of the release of the bar results.
Each examiner is supposed to give 50 questions personally to the Chairman at least 45 days before the exams. The questions are preferably in the handwriting of the examiner.
Of the 50, the Chairman will select 20 questions or, the latter may reject all questions and make his own.
The cut-off date for the laws and decisions covered by the bar is 30 June of the previous year.
The correction is a cloak and dagger operation. Within 10 days after the exams, the Bar Confidant will deliver to the examiner, personally, at a secret place and time, 250 answer books in a sealed and locked canvass. The balance of the 5,000 or so answer books are kept in a vault in the Supreme Court. One key is given to the examiner and one key is given to the Bar Confidant. Thus, the answer books are safe.
The examiner is given one week to correct 250 notebooks. That’s about 50 per day, or 25 in the morning and 25 in the afternoon. It’s a very boring, tiring job.
Each week, the examiner will hand over 250 checked notebooks and get 250 more to check. For 10 weeks, that 2,500 and 20 weeks for 5,000 answer books.
Can you imagine checking 25 answer books every morning and 25 every afternoon for 20 weeks? That’s close to 5 months of non-stop checking of 50 booklets per day.
There is only one rating in your notebook and that is the total cover on the cover. You have no way of knowing what is your exact score for a specific question. The exact score are actually written on a grading sheet, one copy goes to the Bar confidant and the other copy retained by the examiner.
The scores on your book are in whole numbers, not fractions like 84.5. The passing grade is an average of 75% of all the subjects subject to the condition that one should not obtain a grade below 50% in any of the subjects. One person who obtained an average of 74.99% fails.
These are the basic details of the bar examinations as a process. We will discuss the implications of these in the coming installments.
to be continued
(Thads Bentulan, June 10, 2004)
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