California Supreme Court Retains Bar Exam Pass Score at 1440

The California Supreme Court decided to keep the passing score for the Bar Exam at 1440, the second highest in the nation.   The review was prompted in large part by the steady decline in the Bar pass in recent years.  The pass rate for the 2016 July Bar Exam (which most new law graduate take) stood at about 43%, compared to 55-60% in earlier years.

As is well-known, California has the lowest bar passage rate in the country.  Of all the 50 states, Nebraska’s was the highest nationwide, at almost twice that for last July’s Bar Exam, 82%.  For comparison, other states’ bar passage rate for last July’s exam:  New York – 64%, Florida – 59%, Texas – 71%, Illinois – 72%, Massachusetts – 71%, Pennsylvania – 69%, Virginia – 73%, Washington – 70%, New Jersey – 65%, Georgia – 66%.  (The only jurisdiction that had a 100% pass rate was the Northern Mariana Islands, but it is not a state and only had 2 persons take the exam last July.)

Clearly, many lawyers who are unable to meet the requirements in California would have passed the bar exam in other jurisdictions.

For a complete listing of bar passage rates across the country, see the National Committee of Bar Examiner’s report for 2016.

Another Pruitt Folly:  An EPA Directive in search of a problem to solve 

One might laugh, if the subject wasn’t so serious.  EPA Administrator Pruitt issued a new Agency directive today, entitled “Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements,” together with a memo explaining it.  The objective of the Directive is to restrict the ability of the EPA to settle certain types of law suits, oftentimes where the Agency is in clear violation of a statutory deadline or other legal requirement.  Anyway, here is a link to an op-ed that I wrote about this issue a few years ago and why I think there is no real beef to the controversy.  But I am not writing about the merits of the issue here.

Why do I say that the directive is in search of a problem?  Take a look at the language in the Directive laying out the factual basis of the problem it is supposed to fix.

It has been reported . . . that EPA has previously sought to resolve lawsuits filed against it through consent decrees and settlement agreements that appeared to be the result of collusion with outside groups.  In some instances, EPA may have taken actions that had the effect of creating Agency priorities and rules outside the normal administrative process.”

“It has been reported?“ “EPA may have taken?”  Wow.  Some careful lawyering to make sure that there is no actual assertion of fact about the issue.  In fact, the entire directive appears to be based on hearsay, i.e. some abstract “reporting” on the issue.

Ok, so if there is no factual basis for the problem, maybe there is at least a theoretical legal problem to solve here?  Hey, we law professors always love theoretical legal problems to solve.  Turns out that the issue addressed by the Directive – the possibility of an agency colluding with the other litigant, exceeding its statutory authority, or agreeing to something that it shouldn’t via a court settlement, is actually addressed by Justice Department regulations.  These regulations are the result of a set of policies initiated under U.S. Attorney General Ed Meese, also referred to as the Meese Memo.  (When I was a junior attorney in the Justice Department’s Environment Division, I actually had to deal with the Meese Memo.)  The Meese Memo sought to address exactly the same perceived problem that is described in the Pruitt Directive and Memorandum.  However, since EPA is represented in any litigation by the Justice Department, all EPA court settlements must be approved by Justice Department authorities.  Therefore, any court settlements are subject to the Meese Memo regulations, which does much the same as the Pruitt directive.  Mmmh.  So, no theoretical legal need for the new Directive either.

I wish I could say that this is amusing.  But I am not amused.

EPA Administrator Pruitt’s new rule repealing the Clean Power Plan

The new rule, initiated by EPA Administrator Pruitt to repeal the Obama Administration Clean Power Plan (CPP), is not a surprise.  But today’s EPA press release, which made official what Pruitt had announced yesterday in Kentucky, is truly disingenuous as to the Administration’s broader objective of bringing back coal jobs.  In the end, the repeal of the CPP will do virtually nothing for the recovery of the coal industry.  It is well-documented that the decline of coal jobs is the direct result of market forces — competition from cheap natural gas (coming from fracking) and automation trends in mining.  These developments have affected the industry for decades already,  Repeal of the CPP will not change that.  Instead, the false “war against coal” rhetoric only distracts from more important issues and serves as a convenient excuse for not doing more for communities adversely affect by the decline of coal .

Some of the most troubling parts of the press release are found in the Agency’s description of the cost and benefits of the CPP repeal.   Under Administrator Pruitt, the Agency has changed how international vs. domestic climate change effects are considered, excluded the co-benefits of public health improvements from the elimination of other pollutants, and changed how energy savings are accounted for.  An op-ed piece by Richard Revesz and Jack Lienke in today’s NY Times does well in exposing these shenanigans.

I found especially galling how the public health co-benefits of reducing coal usage are being dealt with.  These public health benefits come from reducing power plant pollution, such as particulate matters and other substances, that have well-documented adverse health consequences.  In other words, the pollution reductions from the CPP would have helped American citizens.  Where is the “America first” in ignoring that?

In any event, since today’s announcement is just the initiation of a rule-making process, nothing much will change for quite a while.  The repeal has to go through the same regulatory process as the initial promulgation of the CPP rule itself.  And after that, there are bound to be litigation challenges to the repeal, just as opponents to the original CPP regulation (such as Pruitt himself) tied up the CPP’s effectiveness by court challenges.

But there is a silver-lining for the environment in the disingenuousness of Pruitt’s announcement . . . the repeal of the CPP regulation will definitely not accomplish what it has been advertised by this Administration to do — bring back coal as a major source of energy.

Ultimately, the repeal is just a gigantic smoke-screen for delay and obfuscation on the need to take serious policy action on climate change.   In a few years from now, when climate change science will have progressed even further and provided us with yet more confirmation of the causal connection between our changing climate and the link to human-originated greenhouse gas emissions, we’ll look back at this as an important missed opportunity for the US to redirect its economy.

Rock’n Roll San Jose Half Marathon

I had a terrific morning running the San Jose Half-Marathon with my friends Professor Frank Wu (Hastings Law) and Professor Carol Suzuki (U. New Mexico Law).   I came in at 2:15:07, a personal best, just edging out Frank (2:17), who also ran a personal best.  Even though Carol would have been faster than either of us, she decided help pace Frank.

The highlight was seeing a group of my first-year torts students at the corner of Washington and Newhall, closest to Santa Clara University, who had come out to cheer me on (Bekah, JP, Garrett, Osvaldo, Justin, Davis, Hikari, Caitlin, Joyce, Felipe, Alexis and Roosa). There even seemed to be a student who had called in via face-time, though I don’t know who.  What a cheer squad!  Of course I had to stop and take a selfie with them.

Position: Vermont Law School, Clinical Assistant Professor (Deadline: Oct. 27, 2017, South Royalton, VT)

Vermont Law School

Institute for Energy and the Environment


Clinical Assistant Professor Description

September 2017


VERMONT LAW SCHOOL invites applications for a Clinical Assistant Professor position to lead research, create open source resources, and teach in the law school’s new Farm and Energy Initiative, which is a joint project of the Center for Agriculture and Food Systems (CAFS) and the Institute for Energy and the Environment (IEE).   The position is anticipated to begin in January 2018 with the start of the spring semester but later start dates will be considered.


Given the importance of both agriculture and energy production to our economy and the critical need to improve the sustainability of both sectors, this new initiative provides a leading edge leadership opportunity for a highly qualified attorney.  Some of the compelling policy areas this new initiative could address include

  • promoting farms energy self-reliance,
  • solar siting on agricultural land while protecting soil resources,
  • future feasibility of biofuels as an energy resource, including impacts to agricultural production and lifecycle analysis, and
  • the use of biodigestors to manage the reuse of organic waste & generate local energy.




  • A minimum of 2 years of legal experience
  • Clinical teaching experience
  • Experience and interest in mentoring and supervising students
  • A demonstrated commitment to public interest work – a background in energy, agriculture or both
  • Excellent legal analysis, research, and writing
  • High degree of professionalism in all aspects of lawyering
  • Strong interpersonal skills
  • Creativity and flexibility in approaching and solving problems
  • Strong academic credentials
  • An active U.S. bar membership


Vermont Law School is the top-ranked school for environmental law in the country.  Our graduates become attorneys and environmental professionals who work across the country and the globe.  We offer a rich array of environmental courses and a range of degrees including a Masters and LLM in Food and Agriculture Law and Policy and a Masters and LLM in Energy Regulation and Law as well as certificates in the JD program in food and agriculture law and energy law.  More information about our environmental program is available at


Vermont Law School’s mission is to educate lawyers for the community and the world. The faculty believes that its scholarship, teaching and service should be meaningful and relevant to the local, national, and international communities. The law school is dedicated to building a diverse faculty, and it strongly encourages candidates of color, women, veterans, and members of other underrepresented groups to apply. Please submit a cover letter, curriculum vitae, law school transcript, writing sample and names of three references to IEE Director Kevin Jones, Vermont Law School, 164 Chelsea Street, South Royalton, VT 05068.  Electronic applications are strongly preferred and can be submitted to Materials should be submitted by 5pm October 27, 2017, and clearly marked ” Clinical Assistant Professor for Farm and Energy Initiative,” although submissions received after this time may be considered until the position is filled.

6 Haikus in Honor of the Santa Clara University Environmental Law Society’s Beach Clean-up (September 16, 2017)

These haikus were composed in honor of the Santa Clara Environmental Law Society’s Beach Clean-up Activity a couple of weeks ago. Santa Clara Law Beach Clean-up - September 2017

Natural Bridges
Wonder on the Western sea
Death strikes on the shore

Sea otter carcass
Devon, Mike and Natalie
silently weeping

Ocean waters rise
Robin, Ayla and Laura
murdering the trash

Rubbish in the brier
cigarette butts like locusts
Cynthia unbowed

Litter galore, help!
Josi and Antonia
rush in from abroad

Traffic cone, gas can
Brian and Arielle – score!
Litter defeated.


Tseming (“Whitman”) Yang