Portrait of the Street Strategist as Bar Examiner Part 2

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Portrait of the Street Strategist as Bar Examiner - 2 -

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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 this installment, we shall discuss the basic operations of the bar examinations.

Law

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.

Disqualifications

Relationship with an examinee within the 3^th 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.

Questions

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.

Correction

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.

Credits

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.

Average

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)

streetstrategist@gmail.com

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Portrait of the Street Strategist as Bar Examiner Part 5

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Portrait of the Street Strategist as Bar Examiner - 5 -

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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 Part 3, we discussed the species of bar examiners, their positives and negatives. In Part 4, we discussed the ego of the bar examiners and reviewed a few idiosyncratic bar questions.

In this part, we shall discuss more questionable aspects of test construction as practiced by the examiners over the years.

Great Wall

A reader wrote to correct me that the Great Wall of China cannot be seen from the moon. Yes, if we go by Microsoft Encarta and other web sites lifting and regurgitating the same information from a single source, it cannot be seen from the moon.

On the other hand, during the space race in the late 1960’s to early 70’s, astronauts claimed seeing the Great Wall. Both accounts could be right. After all, given the current state of earth pollution, the satellite cameras and Space Shuttle astronauts probably could no longer see what the cosmonauts could have seen decades ago. And that anecdote about the guards could have been pure yarn. Anyway, what counts is message not the medium.

Misdirected fear

Now back to the bar. Question: What is your greatest fear with respect to the bar examinations?

I don’t have to survey the entire population of 5,000 bar candidates, but based on anecdotal evidence, the following would be the generalized response: “I am less afraid of being asked about my general knowledge of the law and jurisprudence. I am more afraid that the bar examiner will give whimsical and capricious questions that he himself could not answer correctly or cannot answer within the given time or questions that do not test my analytical skills or has no bearing with the realistic legal practice for a new lawyer.”

Thus, the apprehension of the bar candidate is misdirected, his focus is tangential, and his concern is obtuse.

The candidate is afraid that the bar examinations will not test him on what he knows; he is afraid that the bar will test him on what he does not know.

Lack of philosophy

For the candidate, the bar examinations, being limited only to 20 major questions, has become a game of approximating the whim, caprice, and vanity of the bar examiner rather than the judicious process of measuring his analytical skills in integrating and applying different concepts of law and jurisprudence to a legal situation.

The central focus of the bar is the law and jurisprudence, not the whim, caprice and vanity of the bar examiner. The examiner should be invisible.

Otherwise, the weight of the bar as the single most important reference performance metric of the candidate’s analytical thinking process will be reduced to zero.

My theory is that the examiner is an expert in the law but not in test construction. Most likely, the examiner has not adopted his own pervasive philosophy of test construction.

If this is the case, I am going to offer one such philosophy including one such operational implementation towards the end of this series.

Nomenclature

Let’s go over this question in the 2003 Bar:

A, B, C, D, and E made themselves solidarily indebted to X for the amount of P50,000. When X, demanded payment from A, the latter refused to pay on the following grounds: (a) B is only 16 years old. (b) C has already been condoned by X. (c) D is insolvent. (d) E was given by X an extension of 6 months without the consent of the other four co-debtors. State the effect of EACH of the above defenses put up by A on his obligation to pay X, if such defenses are found to be true.

Truthfully, how long will it take you just to internalize and visualize the personalities? You are supposed to think about each and every one of the situations above and write down your answer in a total of ten minutes. Therefore, you have about two minutes per situation. Even if you have perfect information, I doubt if you can write down your answer directly from your brain in two minutes for each situation.

In the bar, every minute counts. As examiner, it would be unconscionable to cause the candidate to devour five minutes just to visualize the entities involved. And this will happen if the examiner is not sensitive to minor things.

An examiner does not realize this additional burden of visualization because it takes him days to think, create, and write down a single problem. Thus, being the creator, he doesn’t feel the burden of initial visualization of the bar problem.

Unfortunately, the candidate does not have this advantage of several days or months familiarizing with the situation envisioned in the bar question.

What’s the deal with A, B, C, D, & E? Why not use names like Adolph, Blaine, Charles, David, and Edward?

There’s a huge difference when normal names are used. Can you feel the difference? There’s that intuitive, realistic, familiar visualization.

As examiner, the Street Strategist will be sensitive to minor things, even those things that other examiners will never ever consider. Remember, we should not burden the candidates unnecessarily, even in the minor matter of nomenclature.

Be it resolved that all bar problems use regular names to minimize the visualization burden. Now, that’s being sensitive to the plight of the terrified candidates.

Unconscionable

In Part 4, I gave examples of my idea of whimsical questions. Yet, despite of the fact that I told you that the answers are very long, I don’t think you really have an idea of how long those answers are. You see, there is a big difference between being told how long the answers are, and the actual experience of reading them.

So, let’s have an example of how tyrannical these questions could be. In the 1977 Bar in Civil Law, there were 20 questions but each of them has sub-questions, about 12 minutes per question. Review the following question and see if you could have picked your brains, formulated your answer and most importantly wrote it down in 12 minutes for all the three sub-questions.

Bar 1977 Question 6:

What are the modes of acquiring ownership and other real rights under the New Civil Code?

What is tradition and give five kinds of tradition which are provided in the Civil Code

What are the requisites of usufruct? How is it constituted and how do you distinguish it from ownership and from lease? What are the modes of extinguishing them?

Answer provided by the UP Law Center:

A. Under our Civil Code, the modes of acquiring ownership and other real rights are the following:

1. Occupation

2. Intellectual creation

3. Prescription

4. Law

5. Donation

6. Testate and intestate succession

7. In consequence of certain contracts, tradition

B. Tradition is a derivative mode of acquiring ownership and other real rights by virtue of which they are transmitted from the patrimony of the grantor, in which they have previously existed to that of the grantee by means of a just title, there being both the intention and the capacity on the part of both parties.

The different kinds of tradition which are recognized in the Civil Code are:

1. Real tradition

2. Constructive tradition

2a. traditio symbolica

2b. tradition longa manu

2c. traditio brevi manu

2d. traditio constitutum possessorium

3. Quasi-tradicion

4. Tradicion por ministerio de la ley

C. There are two requisites of usufruct, the essential and the accidental. The essential requisite is the right to enjoy the property of another, while the accidental requisite is the obligation of preserving the form and substance of such property. The latter is accidental, because the title constituting the usufruct or the law may otherwise provide as in the case of abnormal usufruct.

A usufruct may be constituted:

1. by law

2. by the will of private persons expressed in acts inter vivos

3. by the will of private persons expressed in a last will and testament

4. by prescription

Comparison (ownership vs. usufruct)

Ownership has for its attributes:

1. the right to enjoy (just utendi, jus fruendi, jus abutendi)

2. the right to dispose (jus disponendi)

3. the right to vindicate or recover property (jus vindicandi);

Usufruct is limited merely to the enjoyment of the property (jus utendi and jus fruendi)

Comparison (lease vs. usufruct)

1. As to nature of right – Usufruct is always a real right, whereas lease becomes a real right only when registered.

2. As to constitution – Usufruct is constituted by law, by the will of private persons expressed in acts inter vivos or in a last will and testament, and by prescription, whereas lease is as a rule constituted by contract

3. As to the person constituting it – In usufruct the person constituting it is the owner, whereas in lease the person constituting it need not be the owner.

4. As to extent - Usufruct includes the right to use and enjoy the fruits (jus utendi, jus fruendi) of the thing, whereas lease is more limited.

5. As to duration – There is no limitation to the duration of the usufructuary right, whereas there is a limitation to the duration of a lease right.

6. As to repairs – The usufructuary is responsible for ordinary repairs, whereas the lessee is not.

7. As to taxes – The usufructuary is responsible for taxes on fruits, whereas in lease the lessee is not.

Usufruct is extinguished:

1. By death of the usufructuary, unless a contrary intention clearly appears.

2. By the expiration of the period for which it was constituted, or by the fulfillment of any resolutory condition provided in the title creating the usufruct.

3. By merger of the usufruct and ownership in the same person.

4. By renunciation of the usufructuary

5. By total loss of the thing in usufruct

6. By termination of the right of the person constituting the usufruct

7. By prescription

Perfect information time

So, were you able to answer the above question in 12 minutes? Of course, you didn’t. Why not try this one: Just copy all the answers above on a sheet of paper; can you finish in 12 minutes?

Did you forget any of the enumeration above? Sorry, try your luck next year. Now, who says law doesn’t need memory work? It’s the bar exams itself that’s the proof. Res ipsa loquitur: the thing speaks for itself. Remember, almost all the 20 questions have sub-questions of the same style.

Even if you had the time, could have you remembered all those enumerations and distinctions above?

And even if you have memorized all of them, and the rest of the 2,200 plus articles of the Civil Code, has the above question tested your ability to think and apply your legal knowledge to a legal question? The answer should be a resounding, “No,” right?

There is a sacred responsibility that comes with being a bar examiner. And that includes avoiding an impossible imposition on the candidates. For instance, many examiners do not realize that their questions are impossible to answer in the given time as exemplified above.

How to avoid this problem? Allow me to share a personal experience.

There were a few occasions in my younger days when I had to give examinations to a college class, and I didn’t know the time limit to be set.

Yet, I knew that the academic lives of these students depended on this time limit and I didn’t want to have the guilty conscience of destroying their future because of a whimsical and arbitrary time imposition on them. Some of these young people would lose their scholarships forever.

Here’s what I did. I solved the problems one by one, in the step-by-step solution that I considered as the perfect solution. I timed my answers.

Bear in mind, that I know what the perfect solution was, after all, I designed the problems.

I was merely writing it down the way I expected a perfectly arranged solution ought to be. That interval was what I called the “perfect information time”(PIT).

Note that this was extra work for me, spending time to answer my own problems, something which is not normally done by examiners.

Since a student will have to read the problem and analyze it, and make corrections along the way to refine his solution, he would spend much more time than the PIT.

Formula

I invented a formula of the Student Answer Time (SAT) as the PIT plus some extra analysis and composition time (ACT). Thus: SAT = PIT + ACT.

And so it came to pass that I knew exactly what was the PIT, and I assigned the ACT so that the SAT is double the PIT. Therefore, I knew the SAT was not whimsical and capricious.

Back of the book

But then, I soon realized that the ACT that I was giving wasn’t even enough. There were still complaints. Most of the problems I created were not designed for simple application of a formula but designed to use particular insights that were not even discussed in the class although these insights were discussed in a previous semester. The problems used integration of different bits and pieces from all over the place.

For example, I remember this particular problem that I designed that was impossible to solve using the normal algebraic methods but could be solved in ten minutes using polar coordinates, the latter being a concept that is covered in first year math. But how on earth could have you have thought of using polar coordinates? That was the test of critical analysis.

In fairness, I gave it a bonus problem. If any student solved that I would have awarded him the Nobel Prize as well.

When students complained that the time for the exam was not enough, I began to question my own methods. What exactly did I want from them in terms of knowledge and understanding as measured by the test? Speed? Memory?

Then it dawned on me that in real life, the answers are not found in the back of book. In fact, they can open the book when they are going to practice their professions years later.

I realized that what I really wanted from them was to know what part of the book they should be looking at. I wanted them to know where and how to find the solutions.

Finally, I wanted to assess their thinking process, analysis, and integration of separate concepts as applied to a single problem, and not their memory.

Open book, indefinite time

Forthwith, I instituted a simple but very revolutionary experiment: Open books, open notes, no time limit.

If I had the courage to institute such an examination regime, it was because I knew that the problems were designed in such a way that they would have to use their analytical skills.

For an exam that was designed for one and a half hours, the students would eventually submit in two to three hours. Most of them give up, after all, sitting for three hours is enervating. And for those who stay behind after three hours, I would ask them how much time they needed, and whether such additional time would really cause them to formulate a solution. They can continue in the faculty room.

It’s a different case if you are pursuing a solution and you need time for it or if you are just waiting for a miracle from above.

Result? It was fairly easy to know who deserved promotion and who deserved retention.

Of course, this method cannot be applied in full to law school or the bar, but the principle of testing analytical skills rather than memory is there.

Yet, I still received complaints. Some students wanted to revert back to the close book, time limited exams? Why? They realized that my problems would have to be tempered down since they cannot open books and they have to finish it under a time limit. In short, under scarce resources I would be forced to give reasonably easier exams. I, too, began to see their logic. There’s always a trade-off somewhere.

Nobel Prize

And you cannot say that I’m just shooting the bull. I apply these principles to myself as well. For instance, in my article Broadcaster, I wrote about submitting in 30 minutes when the exams was designed for two hours because I could not write anything anymore. It was the equivalent of no-time limit which I could not have availed of, anyway.

As for examples of problems whose answers are not found in the book, these are the problems that I have tackled together with you in the last five years as the Street Strategist albeit those problems were irrelevant, immaterial, and inconsequential.

By the way, before I leave this topic, I have a minor fun problem for you. I will award a copy of my book Strategy Myopia to the first five individuals who can email me their correct solutions. Even if you answer late, you still have the chance because the first answers could be wrong.

Here is the problem: “A guard dog is tied to the outside wall of a cylindrical tower with a radius of 10 meters. If the leash of the dog is exactly half-way round the tower, how much ground area outside the tower is covered and guarded by the dog?”

Come on guys, even a grade four student understands circle and radius. It’s like I’m giving away my book for a song, right? And, by the way, with your correct solution, in addition to awarding you my book, likewise, I will award you the Nobel Prize.

to be continued

(Thads Bentulan, July 1, 2004)

streetstrategist@gmail.com

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