Portrait of the Street Strategist as Bar Examiner Part 3

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Portrait of the Street Strategist as Bar Examiner - 3 -

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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.

Chink

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?

Justices

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.

Practitioner

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.

Academic

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.

Teaching

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.

Whew!

to be continued

(Thads Bentulan, June 17, 2004)

streetstrategist@gmail.com

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Portrait of the Street Strategist as Bar Examiner Part 4

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Portrait of the Street Strategist as Bar Examiner - 4 -

T

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 Part 3, we discussed the species of bar examiners, their positives and negatives. In this part, we shall discuss the ego of the bar examiners, and review a few idiosyncratic bar questions.

Corruption

With other professional board examinations, the examiners are appointed to a term of office and their identities are public. And if you want to corrupt them, you know who they are.

There were many instances in the past when all you needed was money to pass the board; a higher amount if you wanted to place in the top ten. In our university, there was one case where a Summa Cum Laude graduate flunked the board. She was so distraught but the school did not lift a finger to defend her. She fought the board of examiners and sought her answer booklets. It turned out somebody else had usurped her booklet. It was a case of booklet-switching perpetrated by the examiners. She was eventually proclaimed 4^th placer.

Benz

With the other board exams, the attempt to corrupt the board examiners by the examinee is individual and personal in nature, and any amount involved is similarly individually limited.

On the other hand, the bar examinations has more power and money at stake. Bar candidates have more resources that can be harnessed to corrupt the examiners compared with the board examinees fresh out of college.

Any attempt to corrupt the bar is not individual but institutional. For long, it has been an open secret that fraternities exert their power, influence, and money to obtain leakages.

One bar examiner in the past had been offered a key to a Mercedes Benz. He turned it down. How did the group find out about his identity? Well, that’s how institutionalized the attempt it is.

Would you refuse your fraternity as an institution? Probably, you can refuse an individual. Probably, you can refuse a college frat. But can you refuse your law school frat where most of the members walk the halls of the Presidential Palace?

For this reason, the identities of the bar examiners are shrouded in mystery, and rightly so, especially considering that disadvantaged candidates in the provinces take the bar ten times in their desire to have the title of lawyer inscribed on their tombstones.

It is very unfair to the provincial candidates who spend about P100,000 for the bar in terms of books, materials, review center fees, air and boat fares, and board and lodging in the capital city, not including loss of income during the six-month review.

Weakest link

The Great Wall of China is the only man-made landmark that can be seen from the moon. It was built as a super highway and as a fortress to keep away the barbarians and the enemies of the emperor. It was designed to be impregnable by the state of weaponry at the time. You couldn’t burn it, you couldn’t climb it, you couldn’t ram through it. The Great Wall provided the security and passageway that the empire needed.

How was it penetrated? Quite, simply, really. The enemies of the empire asked the gate guards how much they earned in one year. The corruptors paid them the equivalent of one hundred years and ordered them to vacate their posts and disappear forever.

That’s the power of institutional corruption. A single corrupted agent of the state can be an instrument of the ultimate downfall of an entire empire.

If there’s one single corrupt policeman, that is one too many. If there’s one single corrupt taxman, that is one too many. If there’s one single corrupt judge, that is one too many.

If there’s one single corrupt agent of the state, that is one too many.

Ego

The Supreme Court spends so much money and effort in instituting a system of secrecy in the conduct of the bar examinations. This includes the extraordinary diligence in shrouding in absolute secrecy the identities of the bar examiners.

What is the weakest link? The ego of the bar examiners themselves. If an examiner reveals his identity to one colleague of his, you can be sure that it will become an open secret to five hundred people in a matter of one hour.

Even telling his brother or father about it, is already an uncontrollable source of leakage as to the examiner’s identity.

Do you know that office secretaries, maids, drivers, and messengers are being offered P100,000 per bar question leaked?

In the case of the celebrated bar leakage recently, how on earth did his colleague know that he was the bar examiner?

How on earth is it possible that in almost all bar exams, in the morning of the exams, there are always a few leaked bar questions being shared and feasted upon by the candidates? Yes, it is common knowledge that some of the bar questions are circulated an hour or so before the exams.

Probably, one student gets a leakage and shares all or a few of the questions with his frat brother or his bosom friend or a cousin, and the leakage gets circulated around as a gesture of being a good Samaritan. You have an hour to obtain your answer from a book but the person who had the original leakage has been memorizing the answers for one week already.

You are grateful to scavenge morsels of leakage thrown in the streets that benefits you for a few minutes while they had feasted in the banquet of unfair advantage for weeks.

But this common incident is not reported. After all, if you are able to get hold of one question and immediately browse your book, being a beneficiary, would you report this to the bar committee?

Surprisingly, one actually did report it. Thus, the mercantile law exams was scrapped last year. But I tell you, based on the accounts of the candidates, this happens every year but nobody dares to report it.

Repeat: A single corrupted agent of the state can be an instrument of the ultimate downfall of an entire empire. Whether or not, it was done for money or for giving an unfair advantage to a friend.

Fifty

The bar examiners are required to submit 50 questions. According to a couple of former examiners I have talked to, by the time you reach 20 questions you will have run out of questions to ask. And this probably tempts them to ask outlandish questions.

However, I consider this shortage as a mistake in not allowing the possibility of asking similar questions on the core topics. They make only one question under Aleatory Contracts, and only one question under Reformation of Instruments and only one under the Statute of Frauds.

Thus, they run out of questions. I think this is a mistake.

They should have made at least two questions under each core topic, so that they will not be tempted to construct a question about astronauts. Oh, yes, they did ask about astronauts more than once.

Whim

Still on the subject of ego, a bar examiner tends to construct questions that are meant to impress the candidates with his supposed expertise rather than test the latter’s knowledge of the law.

Some questions have questionable logic or questionable validity as a metric of the candidate’s knowledge. However, since discretion is given to the examiner, it is almost impossible to assail the appropriateness of such a bar question. The examiner can always offer a justification for such, and there is nothing you can do about it.

For example, in 1991: “What is a Constitutional writ of Amparo and what is the basis for such a remedy under the Constitution?”

What is the value of knowing the answer of this question as a test of the basic knowledge of the law? Even practicing judges don’t know what this is. The bar is supposed to test the bar candidate, not to test an international law expert.

Apparently, according to the law professors, this Amparo doctrine was not even a part of our jurisprudence and law at the time. It is of mere theoretical interest being a doctrine in use in Mexico but never in our country.

But the examiner can always argue otherwise. However, that question, in the light of the importance of the bar as the RPM of the candidate, has minimal validity.

By the way, the examiner who supposedly constructed this question is now an Associate Justice of the Supreme Court. There goes a possible contempt of court case against me.

In 2003: “What are the so-called Mandates and Trust Territories?”

Okay, let’s admit the question. Now, the big problem is this: there are no longer Trust Territories in current geopolitics. What then is the value of this question as part of the RPM of the candidate?

Again in 2003: “What is outer-space? Who or which can exercise jurisdiction over astronauts while in outer space?”

You know, I can be a very good advocate. I could justify the validity of this question in any public forum, and I will tear down any argument against the question.

However, when I sleep in early dawn, I could not bear to convince myself, personally, the importance of such a question. The bar, after all, destroys the careers of the candidates and obliterates their financial resources. I am only given 20 questions to ask out of a possible 20,000 and I destroy a person’s years of struggle in law school with such a question?

In 1994: “What is the difference, if any, between the scope of judicial power under the 1987 constitution on one hand, and the 1935 and the 1973 Constitutions on the other?”

Great question. If you can answer this in the five minutes allotted, you do not only possess the general knowledge required of a new lawyer, as is the purpose of the bar, but also the knowledge of Herodotus. You can start writing your bestselling history book on the Monday after the exams.

Caprice

Aside from what I consider as whimsical questions, there are also capricious ones. While going over the exhibits below, try to analyze if the bar examiners abused their discretion or failed to carry out in good faith the heavy responsibility of destroying future legal careers.

In 1977: “Who are compulsory heirs? Give five instances which shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate.”

The answer is actually straightforward. Note that you have to answer this in five minutes or so because there are about 40 sub-questions.

There are five compulsory heirs, however, you must also specify which of the heirs will receive if one class of heirs are missing (no children, for example.)

Just to give you a flavor, one of the class of compulsory heirs are: “In default of legitimate children, the legitimate parents and ascendants with respect to their legitimate children and descendants.”

Of course, the examiner assumes that you have memorized the other class of heirs, including the illegitimate children and parents.

Notice that there are actually two sub-questions. That’s how tricky the counting is. In the second part of the question, there are eight instances. Sure you must have memorized them.

Again, to give a flavor, one of the instances are: “When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment of six years or more if the accusation has been found groundless.”

You should have memorized the seven others.

Isn’t this a great question? One more point: Assuming you have memorized the above, and was able to write down all of them in five minutes, has the question tested your ability to think and analyze a situation?

In 1996, one question had four sub-questions, therefore you have to allot about two minutes each. Here it is: “1. What are the rights of the stockholder? 2. When may a corporate director, trustee, or officer be held personally liable with the corporation? 3. When may a corporation invest its funds in another corporation or business or for any other purpose?”

The answer to part 1 alone has eight instances. For part 2, five instances, for part 3, you have to know the percentage of votes required. For part 4, the answer is broad and does not specify what is meant by joint venture as a term.

Now, I am challenging even sitting judges, could you have answered those correctly in the time allotted? And if so, has your analytical process been tested by such questions?

An examiner has a certain duty and responsibility. Even the examiner himself cannot answer those in the time allotted, even if he knew the answer perfectly. Writing alone takes time.

Double injustice

Now I would like to raise a certain perspective. There are examiners who feel the need to help their fraternity brothers, friends or relatives by leaking some or all of the questions to them. This by itself is an unfair advantage over those provincial candidates who spend much money and time going to the capital to take the bar, and who religiously burn their midnight candles.

The problem is that the examiner himself, in helping his friends, intentionally or unintentionally by leakage by a colleague, does not feel the injustice he has done to the other five thousand candidates who had to take the bar four or ten times religiously.

And there’s another injustice. Whenever the examiner, in a bout of megalomania, ego, whim and caprice constructs questions that are outlandish, whimsical, and capricious, only those who have the leakage are benefited.

A leakage is perfect information. The candidate can memorize all the 50 questions and sub-questions and that’s all he has to study.

While the serious candidate has to read all those mountains of books, and hopefully memorize as much as he can.

What I’m saying is that outlandish, whimsical, and capricious questions favor those who have leakage. And leakage is common knowledge every year. It disfavors provincial candidates with no connections.

Mockery of justice

In fact, it is my thesis that outlandish, whimsical, and capricious questions make a mockery of justice when in the first place, the Supreme Court is the first and last bastion of justice.

The more bizarre the questions, the more the injustice done. Double injustice, in fact.

I have to raise this issue because the ego of the examiners and the negligence of the bar chairman gives rise to double injustice and the worst part is that they may not realize the injustice they may have inadvertently done.

Giving unfair advantage to friends is not merely courtesy. It is not even mere injustice. It is actually a double injustice.

To summarize my thesis: If the bar examiners stick to basic general questions that measure the knowledge of the candidate, not as experts, but the knowledge required of a new lawyer, then the candidates with no leakage stand a fair chance. Egregious, whimsical, and capricious questions cause double injustice.

Topic distribution

One of the greatest injustices in the bar as the RPM of the candidate is the distribution of the questions.

For example, in one bar where the examiner in mercantile law was a high-ranking officer of the Securities and Exchange Commission, too many questions revolved around the Corporation Code which is just a minor topic in the vast area of mercantile law. Since the candidates are required to study many laws, the examiner should be judicious in the selection or distribution of topics. This is the reason why former academics are better in this aspect.

In the recent examinations, there was an inordinate number of questions on flimsy areas in international, about 20%, although it is a miniscule area in the subject of political law.

According to a professor, the bar committee justified it by saying that since we are in the area of globalization these questions need to be asked.

I don’t agree. We should ask questions focused on the basic knowledge required of a new lawyer. Discuss the theoretical globalization and astronaut stuff in the classroom.

Again, unfair distribution, whimsical and capricious. Do they have the discretion? Are they abusing their discretion? I think so. But remember, the law usually requires grave abuse, not simple abuse, to be actionable.

Chairman

Who is to blame for unfair distribution, whimsical and capricious bar questions? The responsibility resides in the Justice of the Supreme Court that is designated as the Chairman of the Bar Committee.

He has the power change all the questions.

In one bar exams, in the wee hours of a Sunday morning where the bar committee staff was mimeographing the questions, the Chairman of the Bar Committee asked his staff who were lawyers: “If you were to take these exams right now, will you pass it?” They said, “No.”

Instantly, hours before the exam, the Chairman changed the questions. His previous stint as a former professor of law guided his instinct.

Reflection

Anyway, at this stage, the Street Strategist has discussed the probable sources of injustices in the conduct of the bar examinations which can easily be corrected by reminding the Bar Committee of the possible implications of their actions, on the assumption that they may not have the opportunity to reflect on them.

Well, the Street Strategist, in his infinite wisdom as the eternal examinations struggler, did the reflecting for you.

(Thads Bentulan, June 24, 2004)

streetstrategist@gmail.com

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