Karl Llewellyn and the Theory of Rules

Karl Llewellyn was one of the leading lights of American jurisprudence from the 1930s through the 1950s.  Not only was he the dean of Columbia Law School, he participated in the drafting of Article 2 of the Uniform Commercial Code, and was active in efforts to promote its enactment in the different states.

Add this: Llewellyn was a clear thinker and a gifted writer, and a lawyer through to his core.  At his death, he left an unpublished manuscript, The Theory Of Rules.  Here are some excerpts, as true today as the day they were written:

Karl_Llewellyn

“Any lawyer dealing with any problem is looking for a rule of law to cover it, and any lawyer recognizes as a rule (allegedly or actually positive) a formula setting forth in general terms a type of fact-situation and laying down a legal consequence therefor.”

Right – That’s what we do.  We look for rules to cover a fact pattern.

“The concept fits not only the speech-usage but the working practices of the profession … Side by side with this functional attribute sits another: rules of law are rules with the function of accomplishing control by language communication.”

Right again – Rules achieve their results by the use of language.

“Unless the language of a purported rule of law is clear enough to mean roughly similar things to different officials about what to do with [roughly similar] states of fact, that purported rule fails … to the extent to which its meaning varies.”

And now a word about what law schools teach to aspiring lawyers:

“That I wrote such an observation implies … that I am judging the bad [rules] by the good ones, seeing their defects against the pattern of what we can do.

“And that our best ones are not the general run is simple to demonstrate.  First, if they
were, it would verge on the criminal to give so large a portion of our law curricula over to study of how to deal with not-so-clear rules.”

And now, Llewellyn shows his skills: “There is a touch of weaseling in this proposed division, in that recognition is itself a concept of fact; but the weasel is one capable of muzzling, with care.”

Karl N. Llewellyn, The Theory of Rules, edited and with an introduction by Frederick Schauer (Univ. of Chicago Press 2011)

In re Perl – 9th Circuit Changes Rules Relating to Bankruptcy Stay and California Eviction Law

The law of evictions – titled as “unlawful detainer” in California – is a technical area. The law has statutory roots as far back as the Forcible Entry Act of 1381, which prohibited the use of self-help to retake possession of real property.

That remains an important concept in an action based on the unlawful detainer statutes.  The principal objective in an action for unlawful detainer is a judicial determination whether the plaintiff or defendant is entitled, at that time, to possession of the property.  Unlawful detainer does not focus on ownership, and case law holds that the issue of plaintiff’s title to the property cannot be litigated in an unlawful detainer proceeding.

So, the objective is up to obtain a judgment for unlawful detainer, coupled with issuance of a writ of possession.  By law, the writ of possession is delivered to the sheriff, who has the responsibility to serve and enforce the writ of possession, ultimately using the sheriff’s office to restore possession to the plaintiff.

Remember – no self-help.  The court issues a judgment for possession, together with a writ of possession.  The sheriff enforces the writ of possession and restores possession to the plaintiff.

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Now mix in issues arising under bankruptcy law.  In In re Perl, __ F.3d __ (Jan. 8, 2016), the plaintiff in an unlawful detainer action obtained judgment and the court issued a writ of possession.  The writ was delivered to the sheriff.  Then, before the sheriff effected service, the tenant filed for bankruptcy.  Does the Sheriff’s actions in enforcing the writ of possession violate the automatic stay created under bankruptcy law?

“The question in this case is whether Perl had any remaining legal or equitable possessory interest in the property after … the state court fully adjudicated in the unlawful detainer proceedings.”  According to the 9th Circuit, the answer is No.

More specifically, “We conclude that under California law, entry of judgment and a writ of possession following unlawful detainer proceedings extinguishes all other legal and equitable possessory interests in the real property at issue.”

In so doing, the court overruled the decisions in In re Di Giorgio, 200 B.R. 664 (Bankr. C.D. Cal. 1996) and In re Butler, 271 B.R. 867 (Bankr. C.D. Cal. 2002).

It gets more interesting when the court reviewed the statutory scheme.  The court found that “Pursuant to Code of Civil Procedure § 415.46, no occupant of the premises retains any possessory interest of any kind following service of the writ of possession.”

Comment – Look up CCP § 415.46 for yourself.  It deals with the prejudgment claim to possession that can be asserted by third parties in possession of the property.  The court’s analysis is not supported by statute.

Thus, the court concluded that “The unlawful detainer judgment and writ of possession entered pursuant to California Code Civil Procedure § 415.46 bestowed legal title and all rights of possession upon Eden Place.  Thus, at the time of the filing of the bankruptcy petition, Perl had been completely divested of all legal and equitable possessory rights that would otherwise be protected by the automatic stay.  Consequently, the Sheriff’s lockout did not violate the automatic stay because no legal or equitable interests in the property remained to become part of the bankruptcy estate.”

Comment – I can’t agree.  Possession could be restored only by the sheriff acting pursuant to the writ of possession issued by the court.  As possession was restored by enforcement of a court order, I believe the act of restoring possession necessarily impacted the bankruptcy stay.

The ABCs of Future Public Payments Law – Prof. Mark Burge

Strange how an idea that was once old can become new again.  Roscoe Pound, Dean of the Harvard Law School, was a prolific legal writer in the 1920s and 1930s.  From my perspective, his best work concerned the development of the American legal system from 1850 through 1900, as America reached the end of its Western expansion.

Writing in 1938, Dean Pound discussed why legislation was not effective to address rapidly-changing areas of the law.  Here is Dean Pound’s analysis:

“It would seem that while legislation has proved an effective agency of ridding the law of particular institutions and precepts which have come down from the past and have not been adapted or were not adaptable to the needs of the time, it has not been able, in our legal system, except in rare instances, to do much of the constructive work of change in eras of growth.  So far as everyday relations and conflicts of interests are concerned, it has not been able to anticipate new demands nor to move fast enough when they made themselves felt through litigation.”  Roscoe Pound, The Formative Era of American Law (Little, Brown and Company 1938), pp. 44-45.

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At the same time, I was reading a new law review article by Professor Mark Burge, discussing the future of the law of payment systems.  Once upon a time, the law of payment systems dealt principally with bank drafts, checks, and bills of exchange.  These days, the law of payment systems also encompasses credit cards, debit cards, ETF’s, Apple Pay, and Bitcoin.

As is apparent, payment systems is a rapidly developing area of the law.  In his article, Prof. Burge discusses why efforts at codification via the Uniform Commercial Code have failed, in large part because opponents of consumer protection provisions have “spiked the cannon” (my words, not his).  Note Professor Burge’s analysis of legislative action in this area:

“Public law should presumptively not be the governing device for payments, although the presumption is a rebuttable one … Experience provides three interrelated reasons to err on the side of private governance.

“First, private law is more capable of adapting to technological change in a meaningful timeframe … Public legislative or regulatory process is not nimble enough to keep up with the times. That fact is not a design flaw in deliberative democracy; it is an intentional feature where the intention dates at least as far back as the United States Constitution …

“Second, after bright-line public law protections of system users are in place, the remaining incentives will be for system operators to conduct themselves in a manner that produces the most social benefit.

“Finally, the parties operating a payment system are in the best position to determine allocation of risks unaccounted for by limited public law, and also to handle a limited collection of risks that public law should impose.”

Although separated by 80 years, Prof. Burge’s analysis is not far off the mark from Dean Pound.  Reminding us that everything old is new again.

Mark Edwin Burge, Apple Pay, Bitcoin, and Consumers: the ABCs of Future Public Payments Law, forthcoming in 67 Hastings L.J. (2016)

ChinaCast Education Corporation – Fraud of Officer Imputed to Corporation

Here is a recent decision that is not a surprise under a traditional agent-principal analysis.  Even so, it has to sting, because the corporation loses twice – first, when it was defrauded by the former president, and second when the corporation was sued by shareholders for the diminished value of their securities.

The fact pattern is straightforward.  “ChinaCast founder and CEO Ron Chan embezzled millions from his corporation and misled investors through omissions and false statements – textbook securities fraud.”  These were not small losses: “From June 2011 through April 2012, Chan ‘transferred’ $120 million of corporate assets to outside accounts that were controlled by him and his allies.”

There’s your background.  The corporation, recognized by law as a separate “person,” lost millions of dollars through embezzlement by the former CEO.  At the same time, the former CEO made false representations on behalf of the corporation, which false representations caused damage to investors in the corporation.

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Explained the court, “Throughout 2011, Chan signed SEC filings on behalf of ChinaCast and never disclosed the $120 million in transfers and other fraudulent activities afoot.”  (Of course Chan made false representations – otherwise, he would of been admitting his wrongdoing.)

The corporation brought forth a common-law defense: “The adverse interest doctrine may prevent a court from imputing knowledge of wrongdoing to an employer when the employee has abandoned the employer’s interests, such as by stealing from it or defrauding it.”

“The sole question on appeal is a purely legal one and an issue of first impression in this circuit:  Can Chan’s fraud be imputed to ChinaCast, his corporate employer, even though Chan’s looting of the corporate coffers was adverse to ChinaCast’s interests?”

The Ninth Circuit held that the corporation could be sued by investors based on the false representations, even though the corporation suffered its own separate injuries.  Explained the court, “we conclude that Chan’s fraudulent misrepresentations – and, more specifically, his scienter or intent to defraud – can be imputed to ChinaCast.

“Significantly, imputation is proper because Chan acted with apparent authority on behalf of the corporation, which placed him in a position of trust and confidence and controlled the level of oversight of his handling of the business.”

That’s certainly a difficult result.  Everyone suffered from the wrongful acts of Chan.  In an earlier time, the law probably would have allowed the losses to rest where it found them.  In our increasingly urban society, the law reaches out to protect injured persons, even when the defendant has already “paid once” for the injury.

In re ChinaCast Education Corporation Securities Litigation, __ F.3d __ (9th Cir. Oct. 23, 2015)

Lawsuits in England in the 17th Century – As Bad as Today

The “High Commission” was a court specially established by the Crown in 1535 after the founding of the Church of England.  As the head of state was also the head of the church, heresy became, in effect, an act of treason, giving the Crown a special interest in ecclesiastical matters.

The jurisdiction of the High Commission soon encroached on the jurisdiction enjoyed by the common law courts.  The complaints piled up, until the High Commission was eventually abolished by act of Parliament in 1641.  Here is a feel for litigation in England four centuries ago.

“Many abuses in the practice of the Commission arose from acts of the parties to the suit and not from those of the commissioners themselves.  The commissioners had no interest in prolonging a case, for they were always overrun with business, and the additional fees were paid into the Exchequer, and not into their own pockets.  But the litigants of the seventeenth century firmly believed that the best way to win a suit was to tire out an adversary by delays and ruin him by court charges.

“As for the procedure to which posterity has objected – the examination upon oath ex officio, the written procedure, a trial largely in private before the formal hearing – this the Commission possessed in common with the Star Chamber, the Chancery, the Admiralty, the Court of Requests, all the ecclesiastical courts, the Councils of the North and in the Marches of Wales.

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“Other evils in procedure and practice were due to the propensity of men in the seventeenth century towards litigation.  It was distinctly a part of the tactics of an advocate or proctor to cause his opponent as much delay and expense as possible, to ‘vex’ him by as many frivolous suits as he could in other courts, to gain slight decisions which should entail costs upon him, to aggravate his fine so as to force him to go at least to the delay and expense of attendance at the Court of Mitigations.

“One man was prosecuted at the same time by the same parties in fifteen different suits before the Commission, the Star Chamber, and the Assizes.  Frequently such suits were brought out of malice,  in hope that the defendant would be unable to meet the expense of so much simultaneous litigation.

“It seems clear that these suits, just cited above, were not in the least based upon doubts as to the jurisdiction of any of these courts, but upon a determination to win the case at all costs, and upon the litigant’s thorough belief that, if he only persisted long enough, he would find the right writ and the right court, and would, thereupon, be infallibly awarded the decision.

“The Day of Mitigations, the last court clay of each term, became, even before 1611, an important part of the Commission’s work.  Here fines, costs, and even sentences were reduced upon petition.  The regular practice was to fine heavily in terrorem, and then, at Mitigations, when some evidence of compliance with the Court’s order had been shown, to reduce the fine by one-half, by three-fourths, or even to remit it altogether.  In the same way deprivations, suspensions, excommunications were lightened for those who showed themselves amenable and repentant.”

Bankruptcy Filings Decrease Again in 2015

The federal bankruptcy courts publish detailed statistics on bankruptcy filings.  California has four federal judicial districts, with Fresno located in the Eastern District.

The 2011-2015 bankruptcy filings for the Eastern District of California continue to show a substantial decline, as shown in this table:

 E.D. Cal. total filingsChapter 7 casesChapter 11 casesChapter 12 casesChapter 13 cases
201517,68113,98382143,601
201424,03019,634109184,269
201332,63525,930187306,487
201242,85033,761201378,846
201153,88842,9572343810,659
Decrease from 201426%29%25%22%16%

Truly, the overall decline from 2011 to 2015 is astonishing, and suggests that our economy is improving.

Dorsey v. Superior Court – No Attorneys Fees in Small Claims Cases

As the jurisdiction of small claims court has increased (now up to $10,000), attorneys are called on more frequently to assist on appeal.  (Ground rule – attorneys are not permitted to assist at the original trial, only on appeal.)

In Dorsey v. Superior Court (Oct. 22, 2015) __ Cal.App.4th __, “The small claims court dispute [ ] arose out of a condominium lease, which contain[ed] a prevailing party attorney fee provision.  [The trial court] entered judgment in favor of the tenants [ ] against the landlord [ ] in the principal amount of $1,560.”

This is where it gets interesting.  “After judgment, [the tenant] sought $11,497.50 in attorney fees as the prevailing parties under the attorney fee provision in the lease.  [The landlord] opposed the motion, asserting Code of Civil Procedure section 116.780(c) trumped the contractual attorney fees provision, limiting any award to $150.  The superior court awarded Crosier $10,373.”

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Fort Sumter

Explained the court, “Small claims court exists so people with meritorious claims for small amounts may have those claims adjudicated without spending more on attorney fees than the claims are worth.”

Note – English law has recognized “small claims” jurisdiction for at least five centuries.  As the court discussed, “The small claims court system has been refined over hundreds of years with recurring attention from the courts, legal commentators, and the Legislature.”  It’s not like California invented small claims court.

Continued the court, “Section 116.780(c) reflects a legislative determination that a small claims appeal should require no more than minimal attorney time.  The small claims appeal procedure was intended to be integral to the legislative scheme for expeditious and cost-effective resolution of small claims.

“Therefore, as we explain, section 116.780(c) must be construed to override contractual attorney fee provisions and limit the attorney fee award here to $150.”

The court also discussed the unusual procedure of the case.  “The superior court’s judgment on a small claims appeal is ‘final and not appealable’ … However, if law is to be made settling a significant issue of small claims procedure, ‘the appellate courts must have jurisdiction to entertain petitions for extraordinary review in appropriate circumstances.’  Writ relief is appropriate here to review this significant issue in small claims law and to ensure uniform interpretation of the governing statutes.”

Bottom line – The court can award attorney’s fees up to $150.00 in small claims court.  Dorsey v. Superior Court (Oct. 22, 2015) __ Cal.App.4th __

Lord Mansfield and Sommersett’s Case

In 1927, Prof. William Holdsworth delivered four lectures on legal history to American audiences, which lectures were collected in Some Lessons from Our Legal History (The Macmillan Company 1928).  Holdsworth, a law professor at Oxford, held “the oldest University Chair in English law in the world,” a chair first held by William Blackstone in 1758.

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Read his remarkable analysis of Lord Mansfield’s 1772 decision in Sommersett’s Case.

“As the history of the writ of Habeas Corpus shows, Parliament and the common lawyers were careful to guard the principle of the thirty-ninth clause of the Great Charter, that a man could not be imprisoned except by due process of law.  That in effect meant that any restraint of liberty must be proved to be legally justified, and that all restraints which could not be thus justified, were illegal.

“That this principle so stated, and safeguarded by the writ of Habeas Corpus, was a better protection to liberty than any number of abstract declarations of right, can be seen by the famous Sommersett’s Case in which the idea that the status of slavery was recognized by English law was finally given its quietus.

Lord Mansfield

“In the eighteenth century the slave trade was a lucrative business, in which many had an interest … Lord Mansfield [ ] decided that … Harrison, in Elizabeth’s reign, had correctly stated the law when he said that ‘if any [slaves] come hither from other realms, so soon as they set foot on land they become as free in condition as their masters.’

“The fact that Lord Mansfield refused to follow the commonly received view of the merchants, and was induced to give a decision opposed to that view, after hearing an argument based mainly on the mediaeval law as to villeinage, probably surprised many of his contemporaries as much as an opposite decision would have surprised us.

“But I think the decision was largely due to maintenance of the view, that any interference with liberty must be justified by law.  There was legal warrant for recognizing the status of a villein: there was none for recognizing the status of a slave.

“As Lord Mansfield said at the close of his judgment, ‘Whatever inconveniences may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.’”

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That’s right – in 1772, Lord Mansfield declared that slavery was not recognized by English law.  Even more, the case came up on a writ of Habeas Corpus.

From Wikipedia: “Mansfield is best known for his judgment in Somersett’s Case on the legality of keeping slaves in England.  The English had been involved in the slave trade since 1553, and by 1768, ships registered in Liverpool, Bristol and London carried more than half the slaves shipped in the world.

“James Somersett was a slave owned by Charles Stewart, an American customs officer who sailed to Britain for business, landing on 10 November 1769.  A few days later Somersett attempted to escape.  He was recaptured [ ] and imprisoned on the ship Ann and Mary, owned by Captain John Knowles and bound for the British colony of Jamaica.  Stewart intended to sell him there.

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“However, three people claiming to be Somersett’s godparents [ ] made an application before the Court of King’s Bench for a writ of habeas corpus, and Captain Knowles was ordered to produce Somersett before the Court of King’s Bench, which would determine whether his imprisonment was legal … As a result of Mansfield’s decision, between 14,000 and 15,000 slaves were immediately freed in England.”

Explained Holdsworth, “Sommersett’s Case, decided on a writ of Habeas Corpus, is an excellent example of the fact that the principle of personal liberty is assumed; and that, in practice, its ambit depends upon the scope and application of the remedy for its infringement.”

“In later days it has sometimes been necessary to suspend the right to get a writ of Habeas Corpus; but this can only be done by an act, not of the executive, but of the Legislature; and in England it is not possible by a single act of the executive or the Legislature to suspend all constitutional guarantees, or to proclaim a state of siege.”

William Searle Holdsworth, Some Lessons from Our Legal History (The Macmillan Company 1928)

Interpretations of Legal History (The Macmillan Company 1923)

Roscoe Pound, dean of Harvard Law School, was an influential legal scholar with a large body of writings.  Some say he later contradicted himself; perhaps, but his earlier writings offer deep insight into the American legal system.

(Pound was born in 1870, and was raised in Nebraska.  His chief academic training was as a botanist, and he received a PhD in botany.  Nebraska, and many other midwestern states, were ravaged by locusts in the late 1870s.  Consider how such events transformed the young botanist.)

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Here is Pound in full power, writing in 1923:

●    On 19th Century law in America

“The truth that more and more since the sixteenth century and universally in the nineteenth century the end of law was conceived in terns of the maximum of individual self-assertion.  This end was to be attained through a politico-legal ordering of society in which coercive social control was reduced to its lowest terms.”

●    Aka, “frontier justice.”

“Self assertion is one of the fundamental instincts or, if you will, one of the fundamental desires of men … The conception of law as a necessary evil, the doctrine that each rule of law must be justified by showing that it promotes a maximum of individual self-assertion, the doctrine of a minimum of law, restricted to what is demonstrably necessary to the realization of freedom as an idea, are protests against which … eighteenth-century thinking had seemed to lead.”

●    Law and Society

“We cannot develop the utmost that is in human powers in a mad scramble in which values are lost by friction and waste.  We must have a certain ordering of human activities that puts limits to human action, that assigns each to do things in order to protect existing values and to further the creation of new ones.  How far this ordering shall go must depend on the civilization of the time and place, on the values to be conserved and the means at hand to create new ones.”

●    What is Law?

“There is no universal body of legal institutions and legal rules for all civilizations.  Instead there is a universal idea, namely, human civilization.  ‘Different in its details,’ [Kohler] says, law ‘is alike in the fundamental quest, that is, the furthering of civilization through a forcible ordering of things … a relation which takes on a different content with the infinite variety in the conditions of human cultivation’” …

“But law is not only a means toward civilization, it is a product of civilization.  We must look at it, therefore, in three ways: as to the past as a product of civilization, as to the present as a means of maintaining civilization, as to the future as a means of furthering civilization.”

●    Rural America

“In rural, pioneer, agricultural America of the forepart of the last century, there was no occasion to limit the contracts a labourer could make as to taking his pay in goods.  To have done so would have been arbitrary.

“In urban, industrial America of the twentieth century, on the other hand, a regime of abstract freedom of contract between employer and employee often led to a destruction of values.  It led to sacrifice of the social interest in the human life of the individual worker.  Hence it was not unreasonable to put limits upon what employer and employee might contract.”

●    How Society Maintains Order

“There must be some system that does this.  It may be done by political or politico military machinery, as in the extreme case of Sparta; by tradition and stratified society resting on authority, as in the Middle Ages; by free competition, as we sought to do in the nineteenth century, or by an economic regime, as today.”

“In any event it is the place of the law to uphold that system so that civilization may he maintained  … A change of attitude in legal thinking throughout the world, which marks twentieth century jurisprudence, rests on recognition of the social interest in the individual life as something broader and more inclusive than individual self-assertion.”

Roscoe Pound, Interpretations of Legal History (Macmillan Company 1923)

Law School and Mental Health Issues

Prof. Andrew McClurg is the author of an excellent guide to the first year of law school.  Below are short excerpts relating to mental health issues that can affect law students.

Self-Doubt

Law school is the undisputed champion of causing talented people, people who have achieved at a high level their entire lives, to almost instantly begin questioning their self-worth.  As one student put it, “It seems that law school is designed to make the student feel unsure of himself and inadequate.”

“Cognitive distortion” is a psychological term used to describe a condition that occurs when a person internalizes neutral or mildly negative external stimuli as signs of severe personal failure.  Law school establishes optimal conditions for this to occur.

Everything a student does is judged and it never seems good enough.  Every word uttered in law school classes is critically scrutinized.  Professors often critique student classroom comments even when they wholeheartedly agree with them.  It’s the nature of the Socratic beast.  Some students shrug it off, but many take it personally and let it diminish their self-image.

Depression

Law students also suffer disproportionately higher rates of depression than the general population and other graduate students.  On depression scales, 17-40 percent of law students in the second University of Arizona study mentioned above were found to suffer from much higher rates than exist among the general population.

A 2000 study of University of Michigan law students found that more than half of law students showed symptoms suggestive of clinical depression by the end of their first year and that these high levels remained throughout their law school careers.

Comparing the law students’ scores on the Center for Epidemiologic Studies Depression Scale to scores for other groups subject to extreme stress yielded somewhat startling results.

The 50 percent of law students who scored above the depression cutoff compared to rates of:

●    30-45 percent for unemployed people
●    30-45 percent for people testing HIV-positive two weeks after they received notice
●    50 percent for people experiencing the death of a spouse or marital separation in the past year
●    50-60 percent for persons being treated for substance abuse, and
●    50-70 percent for homeless people.

This isn’t to suggest, of course, that being a law student is as bad as the listed traumatic events, but law school can strongly push the brain’s depression buttons.

51Bd7wgmPoL._SX321_BO1,204,203,200_

As with anxiety, the gloominess pattern continues after graduation.  A Johns Hopkins University study found that lawyers ranked fifth in the overall prevalence of depression out of 105 occupations.  When the data were adjusted to focus on the association between depression and the particular occupation by taking into account non-occupational factors contributing to depression, lawyers moved into first place.

The study of Arizona and Washington lawyers mentioned above found that 21 percent of male lawyers and 16 percent of female lawyers exceeded the clinical cut-off measure for depression, significantly higher than depression rates found in the general population.

1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law School (2nd Ed.) by Andrew McClurg