Author: TSA Press

One of the annoying things about the bar exam (and there are many) is what happens to you if you do not pass.  Your name isn’t listed.  Others look for your name and don’t find it.  An entire quarter of a year might seem wasted.  Time.  Money.

But the worst thing that happens is the self-inflicted blow to your self-esteem.  No matter how many times people try to cheer you up with “but Hillary Clinton failed the bar,” you realize you aren’t Hillary.  And if you’re conservative, you might even be okay with that.

Regardless, the advice comes in droves:  Pull yourself up by your bootstraps! Just study harder! Quit life and live in a cave to study!  Give yourself a day to recover and then sing something like “Fight Song” as you start studying the next day!  The problem with advice like this is that it fails to take into account that you do need to process your loss.  So that it doesn’t sit in the back of your mind.  The biggest obstacle to tack with retaking the bar exam isn’t your lack of knowledge in Subject X: It’s you.

With that in mind, here are some non-traditional tips to overcoming this temporary life obstacle, and perhaps learning something in the process about yourself.

Start with positive self-talk.  And end with positive self-talk.  The problem of failure is it creates a false narrative that you will forever be that exam score.  Instead, remember things are temporary.  Your loss is temporary.  It is not a permanent state of you.  It can be changed.   Your mind will play tricks on you.  Rather than say, “I failed the bar,” it will say, “I’m a failure.”  No you’re not.  But your self-esteem has taken a beating.  It needs to be nourished.

The trick is to believe that you are successful, that you will be so again.  Any time your inner voice says, “I’m going to fail,” stop.  Literally say the word “stop.”  It is quite empowering.  You can tell yourself to stop saying negative things about yourself, and reframe it: “I’m going to win.”  Start by saying that.  And, believing it.  There’s science behind this.

Next, remember that you are a whole person.  That means recognizing there are things about you that are not bar-related.  In your time of stress is the perfect time to practice gratitude.  Thinking and writing out things for which you are grateful will actually improve your mood.  And happy studying is good studying.

Avoid toxic people who say they are supporting you.  Got a relative who means well but causes hell?  One of those “well, why don’t you try med school” kind of people?  Anyone who doesn’t want you to win (consciously or subsconsciously) has no place near you while you are studying for the bar exam.  For your mental health, avoid toxic people.  You don’t need to try to climb a mountain while you have a drama llama trying to pull you down from it.  That includes the “first-timer boasters,” who offer you advice, but at the cost of them reminding you they passed the first time.  Don’t get me wrong, some very sincere friends are trying to be helpful.  But others may be there to elevate their own ego at the expense of yours.

Remember studying is not homogenous.  An hour of studying is not a uniform unit of measurement.  Certain types of study are more active and require more effort.  The results will be greater understanding of your subject matter the greater your focus and the more active your participation.  Distracted studying is the worst kind of studying.  It is exhausting and unrewarding.  Better to plan a time of happy distractions later in the day and focus on the task at hand.

The body disciplines the mind.   If you aren’t exercising, if you are staying up all hours of the night, if you are burning the candle at both ends, or if you are just staring at books the entire day, understand you are engaged in behavior that will limit your chances of success.  Sleeping is one of the most important studying techniques.  Exercise primes the brain.  I’m not suggesting you do a hard-core workout every morning and afternoon, but physical activity helps you stay on track.

Be honest with yourself.  If you are avoiding a subject like the plague, it is probably your weakest subject.  If you would rather watch videos than take a practice test, it is probably your fear guiding you down what appears to be the easy path. You’ve probably gotten some feedback as to where your weaknesses are, and your brain might seek to trick you into thinking you shouldn’t focus effort there.  As I’ve said before, don’t be your own worst enemy.

Not that I agree with everything the Dalai Lama says, but this is true:  “There is a saying in Tibetan, ‘Tragedy should be utilized as a source of strength.’”  That means that you have a great opportunity here to learn.  I don’t just mean about the bar exam.  I am talking about learning something about perseverance, patience, and your own inner strength.

You can do this.  You will.

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LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.

Another holiday approaches, bringing with it the typical pre-holiday apocalyptic traffic report. The one where the newscaster intones how the roads will be swarmed with vehicles heading off for holiday fun, while hinting that only some of those revelers will actually reach their destination. The rest? Stuck in traffic until it is time to head back to work. While traffic is no fun, it is also more true than ever that today’s cars are in effect rolling computers, full of technology trying to make the driver or passenger experience more enjoyable. Luxury cars and SUVs in particular are stuffed with all manner of driving or leisure aids, from navigation systems that show real-time traffic and require a PhD to operate, to all manner of gizmos designed to keep your phone charged and able to entertain you on the road. Some cars even handle the driving themselves for the most part, even as news of the occasional horrible accident keeps us fearing the days of fully automated automotive transportation.

The software and hardware that makes this all possible was invented or coded by someone of course. And because the automotive industry is a supremely competitive one, it is no surprise that auto companies and their suppliers continue to turn to obtaining patents to help protect their innovations — even if those innovations seem to add more complexity to the car than they are worth. Either way, we know that once companies have patents, they are often willing to assert them against competitors. Perhaps more so than usual in the rarefied world of premium car brands, where creating and maintaining the perception that a brand is symbolic of luxury and innovation is paramount. 

In a column from just about a year ago, I wrote about one such case, while noting that we could potentially see an uptick in patent infringement lawsuits between competing car makers. Whether or not that soft prediction comes to fruition remains unclear. It is still interesting, however, to check in on how that case — where Jaguar Land Rover (maker of Range Rovers) sued Bentley over adaptive terrain response selection systems — has developed over the past year. As I noted in my prior column, the case was filed in the rocket docket of the Eastern District of Virginia, where the trial date for a case is typically set around the first anniversary of its filing.

Here, the case did not progress quite that far. But there was still a recently released substantive decision worth parsing. There, Chief Judge Mark Davis denied Bentley’s motion to dismiss (brought on 101 or Alice grounds) Jaguar’s amended complaint. As an initial matter, it should no longer be surprising to any reader that because of the nature (software-based) of the patented technology a motion to dismiss under Alice was filed. Here, the terrain response feature allows drivers to select how the vehicle will respond to different driving conditions, such as driving on sand or other off-road conditions. We can set aside for now how often the purchaser of a $100k+ SUV will decide to take it for a spin in the Sahara. The point is that the functionality exists and is the subject of a patent suit. Moreover, Bentley’s chosen response confirms yet again that Alice motions persist as a first-line defense in a wide range of patent disputes.

So how did the court deal with Bentley’s motion? In a pretty straightforward matter, actually, via application of Alice’s now familiar two-part test. In part one, the erstwhile search for a nebulous “abstract idea,” the court’s analysis centered on finding analogous technology in the automotive sphere. To that end, the court determined that the closest analogy was to cruise control technology, where the user’s input actually leads to the car’s programming physically changing the car’s behavior. Put another way, the court found that the terrain response selection system was a particular way of changing the vehicle’s physical characteristics, rather than an abstract process that simply mimics a driver’s driving approach under certain conditions.

Even though a finding of no abstract idea resolves the Alice inquiry in the patentee’s favor, the opinion also addresses step two (inventive concept) — perhaps as a way to bulletproof the decision for appeal. Here too the court found that the patented technology “improves efficiency” and is therefore eligible subject matter. In doing so, the court credited the numerous submissions provided by Jaguar showing industry praise for the Range Rover technology, thereby establishing that the patent claims were patent eligible. While the court acknowledged that its proto-103 (validity) analysis was not dispositive on the issue of validity, for purposes of the motion to dismiss, Jaguar’s evidence was sufficient to defeat Alice on step two grounds as well.

Ultimately, this case illustrates how real-world machines, even expensive ones like super-luxury SUVs, can contain technologies that raise Alice issues. It also confirms how overcoming the Alice hurdle is just the first step a patentee must take towards achieving its litigation aims. There is no doubt that Alice, therefore, has made the patent litigation landscape more slippery for patent owners. In this case Jaguar had the right response to ensure a smooth ride past Bentley’s motion to dismiss. For other patentees, however, the ride has proven much bumpier.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome. 

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

Tendai Mpofu applied for new passports for his sons more than two months ago. Their current ones expire this month, just when they’re due to travel to South Africa for a school sports event. It may be a long wait before they get new documents.

With inflation at almost 100% and an acute lack of foreign currency, Zimbabwe is facing its worst economic crisis in more than a decade. While President Emmerson Mnangagwa has said that the passport company is refusing to print anything until the government has cleared its debts, others say Zimbabwe is simply too broke to import the ink and paper needed.

An official at the passport office said the situation is “dire” and passports were only being issued for emergencies. Identity cards are also hard to come by – metal cards were replaced with plastic ones but now plastic is in short supply.

Home Affairs Minister Cain Mathema told the state-run Herald newspaper recently that things will improve and that the government was “working on it.”

HARARE – Zimbabwe’s passport-issuing service has ground to a halt, officials said on Monday, leaving many citizens trapped in the country as its economic crisis worsens.

Applicants for new or renewed passports face an indefinite wait as the government does not have the foreign currency to pay for special imported paper, ink and other raw materials.

Officials at the Registrar General Office told AFP that even if citizens want to pay for an urgent application for a passport, they face a minimum wait of 18 months before they can even submit their papers.

“Last month, the urgent applicants were being told to come back at the end of 2020,” said one official who spoke to AFP on condition of anonymity.

She added that non-urgent applicants were told that no date was available for when they can apply.

Millions of Zimbabweans have fled abroad in the last 20 years seeking work as hyperinflation wiped out savings and the formal employment sector collapsed.

Many others are now seeking to leave as conditions worsen under President Emmerson Mnangagwa, who had promised an economic revival after he succeeding long-ruling Robert Mugabe in 2017.

Official inflation is at nearly 100 percent — the highest since hyperinflation forced the government to abandon the Zimbabwe dollar in 2009 — while supplies of essentials such as bread, medicine and petrol regularly run short.

Power cuts often last 19 hours a day.

Isheanesu Mpofu, a 23-year-old unemployed university graduate, applied for a passport last November but is still waiting.

“I went back early June to check on it, and was told to check again in August,” Mpofu said, adding he wanted to visit his family abroad.

“Besides, it is my right to have a passport so I can travel whenever I want to,” he said.

Mnangagwa addressed the problem last month, saying a dispute with the printers over unpaid bills meant that a state-owned company would take over the job.

“They said they will not print any more passports because of legacy debts,” he said, claiming the money had now been paid.

A passport office official told AFP that only ten passports were being printed each day despite a reported backlog of 280,000.

“We have the capacity to clear the backlog in a very short time but all the machinery is lying idle right now,” she said.

Registrar General Clement Masango told AFP that he had no comment to add to the president’s remarks.

The surprise announcement will ease fears that the central bank might raid foreign currency accounts, as happened during Robert Mugabe’s rule in 2008. Central bank governor John Mangudya said people and companies in Zimbabwe currently hold $1.3 billion in foreign currency accounts.

Mangudya told a parliament committee that individuals would be allowed to withdraw up to $1,000 a day from their foreign currency accounts without restrictions but that companies would have to talk to their banks if they needed cash dollars.

The southern African nation, whose crops were scorched by a drought this year, is in the grip of foreign currency and fuel shortages and daily electricity cuts lasting up to 15 hours.

President Emmerson Mnangagwa, who replaced longtime leader Mugabe after an army coup in November 2017, is trying to repair an economy ruined by hyperinflation and a long succession of failed economic interventions. In May, his government agreed a staff-monitored program with the International Monetary Fund to help Zimbabwe implement coherent economic policies.

But a hoped-for turnaround is yet to materialize, and many Zimbabweans are distrustful of Mnangagwa’s promises.

Last week, the government renamed its interim currency, the RTGS dollar, the Zimbabwe dollar and made it the country’s sole legal tender, ending a decade of dollarization and taking another step toward relaunching a fully-fledged currency.

Mangudya said on Monday the country will initially print 400 million Zimbabwe dollars, to be gradually introduced into circulation to plug the gap left by the end of dollarization.

FEARFUL

Ncube had earlier told the same committee that individuals would be allowed to withdraw U.S. dollars in cash from their foreign currency accounts. He defended the surprise manner of the announcement and promised that Zimbabwe would not fall into money-printing of the kind that caused hyperinflation in 2008.

With inflation close to 100% last month and desperate levels of unemployment, Zimbabweans are impatient for progress but are fearful that abandoning dollarization will cause a new surge in prices. Unions are threatening strikes if Mnangagwa’s government does not overturn the policy.

More than 80% of Zimbabweans are paid in RTGS dollars but many goods and services are priced in other currencies.

“What we have is fiscal discipline of the highest quality,” Ncube said, adding that the national treasury had been running monthly budget surpluses and would raise public sector salaries this month.

Ncube said the official interbank market, where $525 million has been traded since its launch in February, would be allowed to freely determine the exchange rate.

The central bank’s dollar reference rate was 1:7.25 to the Zimbabwe dollar on Monday but some banks bought U.S. dollars at a rate as low as 8.96, in line with black market rates.

Ncube said the central bank’s decision last week to raise the overnight lending rate to 50% from 15% was temporary and meant to stop speculative borrowing by currency traders.

Post published in: Featured

Which law school is the first in the United States to publicly disclose that as of 2019-2020, it will have a yearly cost of attendance of more than $100,000?

Hint: The East Coast law school is a member of the T14 and counts a Supreme Court justice among its alumni.

See the answer on the next page.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

So which Biglaw firm is the biggest of them all? Not like the firm that has the biggest cases or the most M&A deals but just big in the employs-the-largest-amount-of-lawyers kind of way. Well, good news for all you headcount acolytes out there — the 2019 National Law Journal 500 is officially here.

As you may recall, the NLJ 500 ranks firms by overall headcount — temporary and contract attorneys don’t count and any non-lawyer professionals do not either. The list is also focused on U.S.-centric firms, meaning they have more attorneys in the U.S. than any other country.

Before we start our counting expedition, let’s get some help from an old friend.

That was nostalgia inducing, wasn’t it? Anyway, without further ado, here is the NLJ 500 Top 10:

1. Baker McKenzie: 4,720
2. DLA Piper: 3,702
3. Norton Rose Fulbright: 3,376
4. Hogan Lovells: 2,636
5. Latham & Watkins: 2,540
6. Jones Day: 2,518
7. Kirkland & Ellis: 2,307
8. White & Case: 2,150
9. Morgan Lewis & Bockius: 2,015
10. Greenberg Traurig: 1,962

You can check out the rest of the rankings here.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Why Law Firms Are Moving to the Cloud

Why Law Firms Are Moving to the Cloud

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