note: This series was first published in 2004 in my column in BusinessWorld.

Several of the suggestions in this series have been adopted by the incoming Examiners as early as 2005, the least of which are simple but helpful suggestions such as the use of proper names like Juan, Jose, and Maria, instead of A, B, C; and the use of problem solving rather than memorization and the use of the Discriminating Question. Also since then, the two bar topnotchers mentioned in Part 1 have become prominent; one of them is now a presidential hopeful for 2010, and the other, now a Justice of the Supreme Court. Who has read this series way back in 2004? The readers of the newspapers and the law students and some professors back then. 1. The Supreme Court justices were furnished CDROM versions of this series. There is no proof they actually read it. 2. Many law deans and professors as stated in this letter below sent to me way back in 2004: Consultants consultant Before we proceed, I was amused by a letter I received from a senior lawyer of a very powerful law firm. He was a 7th placer in the bar. He wrote: I thoroughly enjoyed your series of articles on the bar exams. I was wondering how I could get a complete copy of the series, as I would like my colleagues, some of whom are members of the Philippine Judicial Academy and consultants of the Supreme Court on reforms, to read it. Sometimes, it takes someone from the outside looking in to remind those inside of plain common sense and reason. I do intend, with your permission of course, to give a copy of the print out to the following people who I either work with or deal with on a regular basis: Former Dean Eduardo de los Angeles (Ateneo) Former Dean Cynthia del Castillo (Ateneo) Dean Andy Bautista (FEU) Dean Perry Pe (Palawan State University) Dean Dante Cadiz (Enverga) Dean Jud Roy (Pamantasan ng Lungsod ng Maynila) Dean Cesar Villanueva (Ateneo) Fr. Joaquin Bernas I'm not sure if they've read it but I strongly believe they should. Thank you sir, for your letter. As for common sense and reason you may like to read my article called the Seventh Sense written in 2003. And if ever the consultants of the Supreme Court and the Philippine Judicial Academy eventually find the Street Strategists Kennen und Wissen (SS-KW) philosophy useful in one way or another, what does that make the Street Strategist a consultants consultant?)

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Portrait of the Street Strategist as Bar Examiner -1he bar examinations is the single most important criterion for the Supreme Court to admit law school graduates into the practice of law. T The bar examinations is the single most important reference performance metric to measure the candidates total knowledge of the law and jurisprudence. And this pseudo-treatise is the sum total of the wisdom of the portrait of the Street Strategist as a bar examiner on the subject of how to maximize the effectiveness of the bar examinations as the only reference performance metric of the candidate, and how to minimize its inherent shortcomings. None of the qualifications The Street Strategist has never been appointed by the Supreme Court as a bar examiner. But then, this is not a strange omission. Indeed, appointing him would be a bizarre commission. He is not known. He is not an expert. And, most importantly, he is not qualified. Yes, I am not known, but, then again, I am the most famous unknown, proof of which is my essay Famous Man. Yes, I am not an expert, but then, there were a few occasions where my pseudo-treatises were used in corporate brainstormings, assigned as readings in business schools including an American university, and quoted in PhD papers abroad, the latter case, at least in one occasion. And dont forget The Accounting Wizard, my deconstruction of the accounting debit and credit, that has been formally adopted by an accountancy school, and later, by a law school, and was subject of a paid full-page criticism by the accountancy organization. These mental calisthenics were distillations of my curiosity as an amateur always trying to defy the experts. But then, thats me. As much as possible I dont accept the experts right away, although I use their judgment as my initial reference point. Being experts, they are almost always right; yet in isolated instances, I discover fresh viewpoints; and in all cases, I learn, anyway. Its a no-loss situation. Yes, I am not qualified. Theres nothing that the Supreme Court can do about it, even if it wanted to.

Yet, after proving that I have none of the qualifications and all of the disqualifications, why insist on this treatise on the portrait of the Street Strategist as a bar examiner? All the disqualifications Yes, the Street Strategist has none of the qualifications and all of the disqualifications of a bar examiner, yet, there is one single reason for you not to throw this treatise outside the window. This portrait is the definitive sum total of the wisdom of the Street Strategist on the issue of the bar examinations. So what? The portrait of the Street Strategist as a bar examiner is valuable by virtue of one single most important raison detre: He is the Street Strategist and he can see what everybody else has seen and think what nobody else has thought. Court of final resort First, I would like mark out the parameters of this disquisition. I am not questioning the integrity of the Supreme Court; I am not questioning the competence of the Supreme Court; neither am I am questioning the wisdom of the Supreme Court and its appointed bar examiners over the years with respect to the bar examinations. The Street Strategist is not questioning the wisdom of the Supreme Court, instead, he is summarizing the definitive total wisdom of his own. And if in the process, the wisdom of the Supreme Court clashes with the wisdom of the Street Strategist, there can be only one final reigning wisdom the infallible wisdom of the Supreme Court, the court of final resort. The Supreme Courts wisdom is final not because it is infallible; rather, its wisdom is infallible because it is final. Law of entropy Now, that we have established that the wisdom of the Supreme Court is final in case of conflict with the wisdom of the Street Strategist, is there still any residual value at all in listening to his portrait as a bar examiner? Yes, there is. Unlike the quaternions of physics, which are subtractive when contrapuntal, the vectors of wisdom are additive, despite being contrapuntal. Contrapuntal vectors of wisdom never destroy, obliterate, or annihilate each other. Wisdom is invariably additive, never subtractive. Contrapuntal junctions of wisdom have a natural way of augmenting, adding, clarifying, and refining the original opposing wisdoms. After listening to the wisdom of one party, the adverse party will either succumb to the opposing vector of wisdom, or assimilate the weakness of such wisdom as a positive reinforcement of his own. In other words, if the opposing vector of wisdom is intellectually superior, you succumb to it. If it is weak, you can use its weakness to reinforce your own wisdom. Either way, the accumulated wisdom in the universe is always increasing, never decreasing. This is called the Law of Entropy of Wisdom. Seduction At this juncture, I have to make a confession of judgment. I have to apologize for having dragged you this far into this treatise. You may abandon this journey, right now. It is ridiculous for the Street Strategist to possess any wisdom at all that is worth the precious time of those who may have been seduced into thinking that I have some brilliant strategy to offer. Indeed, at the outset, I may have made false promises. I have promised to redeem the

cumulative wisdom of the Supreme Court with respect to the bar examinations. In so doing, I may have seduced some people into thinking I can offer more than the current fare of wisdom, and these unsuspecting people may include justices of the Supreme Court, the justices of Court of Appeals, members of the bench, members of the bar, and the bar candidates. Therefore, before I seduce your further with false advertising, I pray that you abandon this journey. Im sorry for wasting your valuable time this far. This disquisition is designed as an exercise of thought, mind, logic, wisdom, and more importantly, an act of entertainment. Nothing more. Again, Im sorry. But you didnt really, seriously, expect that I have wisdom enough to purify the cumulative wisdom of the Supreme Court, did you? That would have been a ridiculous expectation, right? Now, you can throw this treatise out of the window. Bye, bye. It was nice meeting you. Topnotchers By the way, whenever there is an audience, there are always queer ones who want to be part of the seduction. Yes, you can fool some people all of the time. With this in mind, just before you decide to abandon our amusing journey, bear in mind that some people do find wisdom in the ideas of the Street Strategist. Speaking of the bar exams, I can think of at least two people who may try to stick it out with this pseudo-treatise. Why? Because, previously, they wasted some of their extremely precious time reading my stream-of-consciousness ramblings. What can I say? I think these two are among those with refined intellectual taste by reading the Street Strategist. The Justice The first one who I think will stay with me in this journey, and I hope Im not mistaken in counting him as one of the residual voyagers, works in the judiciary. Currently, he is now a Justice of the Court of Appeals. Oh, yes, he does read the Street Strategist whenever he could, I presume. Now, now, Justices of the Court of Appeals are not a dime a dozen. This person alone is probably the equivalent of 10,000 readers. I dont need thousands of readers to justify my existence; I need only one Justice of the Court of Appeals. But you might question the propriety of counting him as one of the serious followers of the Street Strategist. What is my basis for such a claim? Well, all I can say is, he went as far as ordering the first edition of the first book of the most famous unknown. I think that should count. Fair enough? And yet, that is not enough. This Court of Appeals justice was a bar topnotcher, Yes, number one in the bar exams. It should be easy to identify him if you want. How many number one topnotchers could there be in the Court of Appeals? Several? Okay, granting there are several, but how many of these number-one topnotchers have copies of Strategy Myopia in their bookshelves? When he purchased my book he was not yet a Justice, and I didnt know he was number one in the bar. I just read his name in the paper upon his appointment. And even to this day, I have not met him. Now, guys, are you really going to abandon this journey of ours?

The Congressman Wait, a minute, I mentioned there are at least two. I know there are staffers in Congress who follow my misadventures; however, I didnt realize that this fancy extends to the congressmen themselves. Okay, I admit, at least, one. There is this congressman who asked his executive assistant to call all the bookstores to obtain a copy of my book to no avail because it is not distributed publicly. Eventually, the wonders of e-mail short-circuited her work. This young congressman liked some of my ideas that he wrote a letter, which was eventually published in BusinessWorld. Never mind that he is very rich, as that does not necessarily transform him into a certified Street Strategist cult member. However, there was this one additional information that I gathered from my friends. They said, You dont know who he is? Do you know his middle name? And do you know that he was a bar topnotcher? Ah, pardon my ignorance, sir, but you were really number one in the bar examinations, I finally found out. Thats something. So it is easy to identify my readers. How many rich young congressmen out there who placed number one in the bar? Several, again? If so, how many of these have copies of Strategy Myopia in their bookshelves? Now, guys, are you really going to abandon this journey of ours? If these two bar first placers went out of their way to tell me they enjoy our pseudo-intellectual games and purchased my magnum opus with my golden autograph, who are you to defy their intellectual taste? By the way, before we leave these topnotchers, whom I have never met, theres just one minor thing. I have a theory that the reason the young congressman became a bar topnotcher on that year was due to a very fortunate incident. He was so blessed because the life schedule of the Street Strategist was shattered to random chaos, otherwise, if my earlier plan wasnt yanked out of me, he and I would have clashed on that particular year, and he wouldnt have been number one, I tell you. And for the first time in the bar exams there would have been three persons in the top ten with the same first names and the same middle initials. Cheer up, guys, just theorizing on the possibilities. So, are you really abandoning me? Come on, youre in fine company. Real reason Seriously, guys, before we delve into my portrait as a bar examiner, the real reason why I feel competent to offer my wisdom is that I have a far greater experience in the area of examinations. Not so much as the experience of constructing examinations but in the experience of taking them. The problem with those charged with constructing examinations is that they are experts in their fields, therefore narrow-minded. They have limited experience in how the exams in other fields are being designed, constructed, and conducted. Besides, since they have been chosen as examiners, there is a conclusive presumption that they are brilliant and intelligent. Therefore, they are probably out of touch with reality of the mediocre, average candidate. And they are not accustomed to taking the same exams over and over again, or taking many different exams. These people are the statistical outliers, they are aberrations, and lo and behold, we use their aberrant experiences as the basis of a general examination. On the other hand, I have probably taken more examinations than 90% of the population. And these examinations were not confined to a particular discipline. Some science, technology, mathematics, some economics, some law, some finance, something of everything, Ive tasted

them inside or outside the classroom. Furthermore, my experiences were vicious mental struggles. Like many other candidates, in those examinations, I felt that the questions presented were far from the real state of my knowledge. In other words, I could have passed those exams, or performed better, if the questions were representative enough. During those exams, I always felt that I was being unfairly assessed. Again, to summarize, my expertise is not in the subject of the exams, but in the examinations themselves, how they could be designed better, and how they could assess an ordinary examinee like me. The experiences of the topnotchers do not count. They are the statistical aberrations. I hope that my dismal experience as a struggling examinee will transform me into a brilliant examiner. And that is exactly what the portrait of the Street Strategist as bar examiner is all about. Bar none Should the bar be abolished? No. Despite all its shortcomings, the bar exams serves as a reference performance metric against which all law graduates must be measured. Given the sacred nature of the bar exams, it should not be trifled with, especially by the bar examiners themselves. Now, thats a hint. As a performance metric, the bar exams has two major phases that are beneficial to the bar candidates. The first phase is the comprehensive review called the pre-bar review. It is judicial notice that after the pre-bar review, the average candidate has more knowledge on hand at their command than someone with a decade of experience as a Regional Trial Court judge. Unfortunately, I feel that the Supreme Court and the bar examiners ignore the value of this phase. Or even if they do, they have no ostensible procedure by which this is measured. There are 20,000 possible questions on Political Law alone, yet, only 20 are asked in the bar exams, or 40 questions, if we include the follow-up sub-questions. This is an unfortunate situation because such 20 questions are a narrow-band measurement. The truth is, the greater the number of questions bombarded at the candidate, the greater the probability that the bar exams is going to capture a broader spectrum of his knowledge of the law and jurisprudence. Just as in a market survey, the greater the sample, the more accurate the representation, subject to the law of diminishing returns on accuracy given the same confidence level and error of margin. By the way, for the uninitiated, the entire fourth year in law school is actually dedicated to review. Thus, some of the subjects are Civil Law Review, Criminal Law Review, or Mercantile Law Review. In other words, the six-month pre-bar review is a review on top of the fourth-year law school review. The second phase of the bar exams as a performance metric, is the actual examinations itself. Despite its shortcomings such as being limited to only 20 questions per bar subject, inter alia, the candidate has no recourse but to capitulate to the process. By the way, do not forget that this pseudo-treatise is a reflection of the sum total of the wisdom of the portrait of the Street Strategist as a bar examiner about how to maximize the effectiveness of the bar exams as the reference performance metric of the candidate and how to minimize its inherent shortcomings. Oral bar In other jurisdictions, the bar consists of a written phase and an oral argumentation phase but then, these countries do not have 5,000 candidates annually. As such, oral exams is impractical.

The trial practice of law does not mean practice for trials. It does not mean trial and error exercise of the profession. Yet this happens because there are many candidates who later become lawyers without ever observing any case being tried. Some lawyers havent even seen nor set foot in any trial court at all. Its true. Thus, the written bar exams has an additional mandate: It should rise up the challenge of being an equitable proxy to an oral bar examination. Pursuant to such mandate, the written bar must ask questions that approximate the candidates thinking analysis rather his photographic memory. Thus, the written bar should approximate the ability of the candidate to think on his feet as would have been obtained in an oral bar.

Portrait of the Street Strategist as Bar Examiner -2his 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 T 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 Bachelors 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 theyll 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. Thats 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, Im 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. Thats 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, dont ever believe those who say that memory is not required in law. How can you remember what you read if you dont have good memory? If what you read in freshman law tends to be a dark memory in your senior year, then youre 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 dont have any strategy on how to attack the problem. Its so funny how college geniuses who dont have time in law school fight the problem with brute force reading and memorizing. Where is their brilliance? They have the brains but they dont apply it. Thats 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. Im 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, thats 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, youre 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.

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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 3th 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

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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. Thats about 50 per day, or 25 in the morning and 25 in the afternoon. Its 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? Thats 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. Portrait of the Street Strategist as Bar Examiner -3-

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.

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In this part, we shall discuss the species of bar examiners, their positives and negatives. Choice of examiners While the Chairman of the Bar Committee is known, the identities of the eight bar examiners are classified as one of the eight mysteries of the world. Since, invariably, the examiners are residing or working in the capital region, the bar candidates in the capitals law schools have an advantage. The examiners are either their former professors, or their fraternity brothers. Since there is a one-year prior freedom period where a professor must sever himself from any institution of law or review center, any professor or bar reviewer who suddenly takes a leave of absence or pretends to be sick is a suspected examiner for the next years bar. If you were his student, you can delve into certain inheritance, which are the lecture notes and previous exams previously given by the professor. The provincial candidates with no inkling that a certain professor is a suspect, much less with respect to the latters favorite topics or questions, are certainly disadvantaged. For this reason, the Supreme Court and the bar confidant protects the identities of the mysterious octet with the zeal of atomic bomb researchers. Chink But then, as with any tight secret, theres always a chink in the armor. Take the case of a recent bar exam. The examiner for Mercantile Law is a practicing lawyer of one of the currently powerful law firms in the country. However, according to accounts, one lawyercolleague of his, stole the bar exam questions from the bar examiners own computer over the network, hence the leakage. This caused the Mercantile Law exam to be avoided. The lawyer-colleague was eventually disbarred. This begs the question: How on earth did his colleague know that he was the bar examiner? Justices The first logical choice for examiners are retired Justices of the Supreme Court and the Court of Appeals and other judges. Sitting judges dont have time to check answer booklets. The advantages of appointing former judiciary members as examiners are obvious. On the hand, the following are the disadvantages. First, they usually tend to ask questions about decisions they have written, and therefore, the range of issues could be restricted. Second, they are senior citizens, therefore, the burden of checking 50 answer books every day for 5 months may cause them skim over the answers.

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Practitioner The practicing lawyer has certain advantages such as expertise on a particular field, and certain issues of the day, and therein lies the Janus obverse. Unless he was a former professor, the practicing lawyer, after two decades of practice, maybe far removed from the academe. As such he may have forgotten what it is like to be a student. He may no longer appreciate that the candidate has many other subjects to master. The expertise of the practitioner may seduce him to think that all bar candidates should be like him, at his level of expertise, on a particular field like what he has been doing in the last twenty years. This expertise may give him narrow blinders forgetting that the subject is actually broader in scope than his expertise. Such blinders may be unfair to the candidates. For example, an expert of intellectual property law may ask three questions on intellectual property out of twenty questions in Mercantile Law. This is not a judicious distribution of bar topics given that this law is a very minor part of the broad range of Mercantile Law. For example, an international law expert will ask four questions on international law to the detriment of the other more serious and more useful issues on constitutional and political law. The practitioner who has no teaching experience may have lost his sense of weight and proportion regarding the several topics of a bar subject, and may not be apprised of the latest jurisprudence on topics other than on his own narrow field, hence, he is the most dangerous species of bar examiners. Academic The academic professor or bar reviewer is probably the most judicious of all the species. He has the maintained the sense of weight and proportion each of the topics covered by the bar subject. He has studied and maintained his discipline in analyzing the jurisprudence and even writes critiques on the recent questionable decisions of the Supreme Court. He knows how to apportion the twenty questions that will cover a correct assessment of the bar candidate more than any other species of bar examiners. After all, he has an outline of the subject that he uses to teach. The argument that academics are theoretical, and not practical, may be valid in other fields of discipline such as physics or engineering but is not a valid argument in the legal profession. Why? Of all the professions, law is the most practical one. In fact, the line between theory and practice in law is tenuous. Law, after all, is practice. The study of law is the practice of law.

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When the professor criticizes a Supreme Court decision, what can be more practice than that? Law is an intellectual endeavor, therefore, being mental, the difference between theory and practice exists only in the mind. Practically, there is no difference between theory and practice in law. By the way, when practitioners claim that there is a difference between theory and practice in law, they are usually referring to the naivet of the academic theoreticians in the corrupt applications in the practice of law. Am I right? The pure professor can devote 100% of his time to checking, and this is very important, as we shall later discuss. The disadvantages of this species are apparent. His absence is immediately suspect. His favorite angles to the topics favor his former students, although the redeeming factor is that if the questions are not whimsical then other candidates are expected to answer them with equal grace. Overall, if one reviews the bar questions in history, the most logical, the most judicious and well thought-out questions were formulated by professors who were at the top of their fields. By the way, the brilliant jurists in the history of the Supreme Court were mostly from the academe and they were appointed on the basis of their brilliant legal minds grounded with solid academic teaching backgrounds rather than on their political lineage. Teaching Is teaching law a practice of law? Since the time of the first bar exams in 1913 when Manuel Roxas was the topnotcher with a grade of 92%, this question has been percolating among the occupants of the bench and the bar. Did you know that as late as 1986 the Minister of Justice opined that teaching law is not practice of law? The opinion cited Quaker vs. State Bar of Texas as to what is considered practice of law. Jettison these foreign arguments. Amazing but true. The logic? Law professors do not deal with clients. Funny. In fact, it was only in the case of Cayetano vs. Monsod that the Supreme Court finally adopted the tact that teaching law is practice of law. Thus, it was only in September 1991 that, finally, the Supreme Court decided that teaching law is a valid and recognized practice of law despite the fact that professors do not interact with legal clients. In the period from 1913 to 1991, almost 80 years, the law professors were subjected to an oppressive, ignominious, undignified injustice.

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Even then, two Justices dissented in this case. I havent read the case yet, but if there were dissenting opinions, the majority opinion must not have been perfectly argued. Why? Because if I wrote the decision I would have demolished all possible dissenting opinions before they could be formed. It is not the dispositive portion that interests me, but how it was arrived at. If I were the Minister of Justice in 1986, or if I were the ponente in the case of whether or not teaching law is practice of law, how would the decision read? Heavens forbid that I become a Justice of the Supreme Court, otherwise, all my cult followers will devour my decisions. If the issue is whether teaching law is practice of law, heres how I would argue and elucidate on the issue and decide for yourself if you can form a dissenting opinion against my disquisition: The Street Strategist hereby declares that there can be no greater practice of law than creating lawyers out of ordinary mortals, and if such practice is not embraced within the traditional definition of what constitutes practice of law, then by all means, cut the Gordian knot of ignorance by changing the definition, rather than adhere to a definition that creates an absurdity that excludes the grand and noble act of the formation of legal minds as beyond the ambit of the practice of law. Whew! Portrait of the Street Strategist as Bar Examiner -4his 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 T reference performance metric (RPM) of the candidate, and how to minimize its inherent shortcomings. In Part 1, we discussed the oblique ratio decidendi establishing the reason why a person who is not even qualified as an examiner should possess the wisdom to conjure up this treatise. In Part 2, we discussed the basic operations of the bar examinations. In Part 3, we discussed the species of bar examiners, their positives and negatives. In this part, we shall discuss the ego of the bar examiners, and review a few idiosyncratic bar questions. Corruption With other professional board examinations, the examiners are appointed to a term of office and their identities are public. And if you want to corrupt them, you know who they are.

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There were many instances in the past when all you needed was money to pass the board; a higher amount if you wanted to place in the top ten. In our university, there was one case where a Summa Cum Laude graduate flunked the board. She was so distraught but the school did not lift a finger to defend her. She fought the board of examiners and sought her answer booklets. It turned out somebody else had usurped her booklet. It was a case of booklet-switching perpetrated by the examiners. She was eventually proclaimed 4th placer. Benz With the other board exams, the attempt to corrupt the board examiners by the examinee is individual and personal in nature, and any amount involved is similarly individually limited. On the other hand, the bar examinations has more power and money at stake. Bar candidates have more resources that can be harnessed to corrupt the examiners compared with the board examinees fresh out of college. Any attempt to corrupt the bar is not individual but institutional. For long, it has been an open secret that fraternities exert their power, influence, and money to obtain leakages. One bar examiner in the past had been offered a key to a Mercedes Benz. He turned it down. How did the group find out about his identity? Well, thats how institutionalized the attempt it is. Would you refuse your fraternity as an institution? Probably, you can refuse an individual. Probably, you can refuse a college frat. But can you refuse your law school frat where most of the members walk the halls of the Presidential Palace? For this reason, the identities of the bar examiners are shrouded in mystery, and rightly so, especially considering that disadvantaged candidates in the provinces take the bar ten times in their desire to have the title of lawyer inscribed on their tombstones. It is very unfair to the provincial candidates who spend about P100,000 for the bar in terms of books, materials, review center fees, air and boat fares, and board and lodging in the capital city, not including loss of income during the six-month review. Weakest link The Great Wall of China is the only man-made landmark that can be seen from the moon. It was built as a super highway and as a fortress to keep away the barbarians and the enemies of the emperor. It was designed to be impregnable by the state of weaponry at the time. You couldnt burn it, you couldnt climb it, you couldnt ram through it. The Great Wall provided the security and passageway that the empire needed.

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How was it penetrated? Quite, simply, really. The enemies of the empire asked the gate guards how much they earned in one year. The corruptors paid them the equivalent of one hundred years and ordered them to vacate their posts and disappear forever. Thats the power of institutional corruption. A single corrupted agent of the state can be an instrument of the ultimate downfall of an entire empire. If theres one single corrupt policeman, that is one too many. If theres one single corrupt taxman, that is one too many. If theres one single corrupt judge, that is one too many. If theres one single corrupt agent of the state, that is one too many. Ego The Supreme Court spends so much money and effort in instituting a system of secrecy in the conduct of the bar examinations. This includes the extraordinary diligence in shrouding in absolute secrecy the identities of the bar examiners. What is the weakest link? The ego of the bar examiners themselves. If an examiner reveals his identity to one colleague of his, you can be sure that it will become an open secret to five hundred people in a matter of one hour. Even telling his brother or father about it, is already an uncontrollable source of leakage as to the examiners identity. Do you know that office secretaries, maids, drivers, and messengers are being offered P100,000 per bar question leaked? In the case of the celebrated bar leakage recently, how on earth did his colleague know that he was the bar examiner? How on earth is it possible that in almost all bar exams, in the morning of the exams, there are always a few leaked bar questions being shared and feasted upon by the candidates? Yes, it is common knowledge that some of the bar questions are circulated an hour or so before the exams. Probably, one student gets a leakage and shares all or a few of the questions with his frat brother or his bosom friend or a cousin, and the leakage gets circulated around as a gesture of being a good Samaritan. You have an hour to obtain your answer from a book but the person who had the original leakage has been memorizing the answers for one week already. You are grateful to scavenge morsels of leakage thrown in the streets that benefits you for a few minutes while they had feasted in the banquet of unfair advantage for weeks.

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But this common incident is not reported. After all, if you are able to get hold of one question and immediately browse your book, being a beneficiary, would you report this to the bar committee? Surprisingly, one actually did report it. Thus, the mercantile law exams was scrapped last year. But I tell you, based on the accounts of the candidates, this happens every year but nobody dares to report it. Repeat: A single corrupted agent of the state can be an instrument of the ultimate downfall of an entire empire. Whether or not, it was done for money or for giving an unfair advantage to a friend. Fifty The bar examiners are required to submit 50 questions. According to a couple of former examiners I have talked to, by the time you reach 20 questions you will have run out of questions to ask. And this probably tempts them to ask outlandish questions. However, I consider this shortage as a mistake in not allowing the possibility of asking similar questions on the core topics. They make only one question under Aleatory Contracts, and only one question under Reformation of Instruments and only one under the Statute of Frauds. Thus, they run out of questions. I think this is a mistake. They should have made at least two questions under each core topic, so that they will not be tempted to construct a question about astronauts. Oh, yes, they did ask about astronauts more than once. Whim Still on the subject of ego, a bar examiner tends to construct questions that are meant to impress the candidates with his supposed expertise rather than test the latters knowledge of the law. Some questions have questionable logic or questionable validity as a metric of the candidates knowledge. However, since discretion is given to the examiner, it is almost impossible to assail the appropriateness of such a bar question. The examiner can always offer a justification for such, and there is nothing you can do about it. For example, in 1991: What is a Constitutional writ of Amparo and what is the basis for such a remedy under the Constitution? What is the value of knowing the answer of this question as a test of the basic knowledge of the law? Even practicing judges dont know what this is. The bar is supposed to test the bar candidate, not to test an international law expert.

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Apparently, according to the law professors, this Amparo doctrine was not even a part of our jurisprudence and law at the time. It is of mere theoretical interest being a doctrine in use in Mexico but never in our country. But the examiner can always argue otherwise. However, that question, in the light of the importance of the bar as the RPM of the candidate, has minimal validity. By the way, the examiner who supposedly constructed this question is now an Associate Justice of the Supreme Court. There goes a possible contempt of court case against me. In 2003: What are the so-called Mandates and Trust Territories? Okay, lets admit the question. Now, the big problem is this: there are no longer Trust Territories in current geopolitics. What then is the value of this question as part of the RPM of the candidate? Again in 2003: What is outer-space? Who or which can exercise jurisdiction over astronauts while in outer space? You know, I can be a very good advocate. I could justify the validity of this question in any public forum, and I will tear down any argument against the question. However, when I sleep in early dawn, I could not bear to convince myself, personally, the importance of such a question. The bar, after all, destroys the careers of the candidates and obliterates their financial resources. I am only given 20 questions to ask out of a possible 20,000 and I destroy a persons years of struggle in law school with such a question? In 1994: What is the difference, if any, between the scope of judicial power under the 1987 constitution on one hand, and the 1935 and the 1973 Constitutions on the other? Great question. If you can answer this in the five minutes allotted, you do not only possess the general knowledge required of a new lawyer, as is the purpose of the bar, but also the knowledge of Herodotus. You can start writing your bestselling history book on the Monday after the exams. Caprice Aside from what I consider as whimsical questions, there are also capricious ones. While going over the exhibits below, try to analyze if the bar examiners abused their discretion or failed to carry out in good faith the heavy responsibility of destroying future legal careers. In 1977: Who are compulsory heirs? Give five instances which shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate.

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The answer is actually straightforward. Note that you have to answer this in five minutes or so because there are about 40 sub-questions. There are five compulsory heirs, however, you must also specify which of the heirs will receive if one class of heirs are missing (no children, for example.) Just to give you a flavor, one of the class of compulsory heirs are: In default of legitimate children, the legitimate parents and ascendants with respect to their legitimate children and descendants. Of course, the examiner assumes that you have memorized the other class of heirs, including the illegitimate children and parents. Notice that there are actually two sub-questions. Thats how tricky the counting is. In the second part of the question, there are eight instances. Sure you must have memorized them. Again, to give a flavor, one of the instances are: When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment of six years or more if the accusation has been found groundless. You should have memorized the seven others. Isnt this a great question? One more point: Assuming you have memorized the above, and was able to write down all of them in five minutes, has the question tested your ability to think and analyze a situation? In 1996, one question had four sub-questions, therefore you have to allot about two minutes each. Here it is: 1. What are the rights of the stockholder? 2. When may a corporate director, trustee, or officer be held personally liable with the corporation? 3. When may a corporation invest its funds in another corporation or business or for any other purpose? The answer to part 1 alone has eight instances. For part 2, five instances, for part 3, you have to know the percentage of votes required. For part 4, the answer is broad and does not specify what is meant by joint venture as a term. Now, I am challenging even sitting judges, could you have answered those correctly in the time allotted? And if so, has your analytical process been tested by such questions? An examiner has a certain duty and responsibility. Even the examiner himself cannot answer those in the time allotted, even if he knew the answer perfectly. Writing alone takes time. Double injustice

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Now I would like to raise a certain perspective. There are examiners who feel the need to help their fraternity brothers, friends or relatives by leaking some or all of the questions to them. This by itself is an unfair advantage over those provincial candidates who spend much money and time going to the capital to take the bar, and who religiously burn their midnight candles. The problem is that the examiner himself, in helping his friends, intentionally or unintentionally by leakage by a colleague, does not feel the injustice he has done to the other five thousand candidates who had to take the bar four or ten times religiously. And theres another injustice. Whenever the examiner, in a bout of megalomania, ego, whim and caprice constructs questions that are outlandish, whimsical, and capricious, only those who have the leakage are benefited. A leakage is perfect information. The candidate can memorize all the 50 questions and sub-questions and thats all he has to study. While the serious candidate has to read all those mountains of books, and hopefully memorize as much as he can. What Im saying is that outlandish, whimsical, and capricious questions favor those who have leakage. And leakage is common knowledge every year. It disfavors provincial candidates with no connections. Mockery of justice In fact, it is my thesis that outlandish, whimsical, and capricious questions make a mockery of justice when in the first place, the Supreme Court is the first and last bastion of justice. The more bizarre the questions, the more the injustice done. Double injustice, in fact. I have to raise this issue because the ego of the examiners and the negligence of the bar chairman gives rise to double injustice and the worst part is that they may not realize the injustice they may have inadvertently done. Giving unfair advantage to friends is not merely courtesy. It is not even mere injustice. It is actually a double injustice. To summarize my thesis: If the bar examiners stick to basic general questions that measure the knowledge of the candidate, not as experts, but the knowledge required of a new lawyer, then the candidates with no leakage stand a fair chance. Egregious, whimsical, and capricious questions cause double injustice. Topic distribution

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One of the greatest injustices in the bar as the RPM of the candidate is the distribution of the questions. For example, in one bar where the examiner in mercantile law was a high-ranking officer of the Securities and Exchange Commission, too many questions revolved around the Corporation Code which is just a minor topic in the vast area of mercantile law. Since the candidates are required to study many laws, the examiner should be judicious in the selection or distribution of topics. This is the reason why former academics are better in this aspect. In the recent examinations, there was an inordinate number of questions on flimsy areas in international, about 20%, although it is a miniscule area in the subject of political law. According to a professor, the bar committee justified it by saying that since we are in the area of globalization these questions need to be asked. I dont agree. We should ask questions focused on the basic knowledge required of a new lawyer. Discuss the theoretical globalization and astronaut stuff in the classroom. Again, unfair distribution, whimsical and capricious. Do they have the discretion? Are they abusing their discretion? I think so. But remember, the law usually requires grave abuse, not simple abuse, to be actionable. Chairman Who is to blame for unfair distribution, whimsical and capricious bar questions? The responsibility resides in the Justice of the Supreme Court that is designated as the Chairman of the Bar Committee. He has the power change all the questions. In one bar exams, in the wee hours of a Sunday morning where the bar committee staff was mimeographing the questions, the Chairman of the Bar Committee asked his staff who were lawyers: If you were to take these exams right now, will you pass it? They said, No. Instantly, hours before the exam, the Chairman changed the questions. His previous stint as a former professor of law guided his instinct. Reflection Anyway, at this stage, the Street Strategist has discussed the probable sources of injustices in the conduct of the bar examinations which can easily be corrected by reminding the Bar Committee of the possible implications of their actions, on the assumption that they may not have the opportunity to reflect on them.

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Well, the Street Strategist, in his infinite wisdom as the eternal examinations struggler, did the reflecting for you. Portrait of the Street Strategist as Bar Examiner -5his 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 T 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 1960s to early 70s, 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 dont 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.

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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 candidates 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 Lets 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.

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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 doesnt 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. Whats the deal with A, B, C, D, & E? Why not use names like Adolph, Blaine, Charles, David, and Edward? Theres a huge difference when normal names are used. Can you feel the difference? Theres 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, thats 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 dont 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, lets 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:

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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.

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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.

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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 didnt. 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 doesnt need memory work? Its the bar exams itself thats the proof. Res ipsa loquitur: the thing speaks for itself. Remember, almost all the 20 questions have subquestions 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 didnt know the time limit to be set.

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Yet, I knew that the academic lives of these students depended on this time limit and I didnt 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. Heres 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 wasnt 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.

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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. Its 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. Theres always a trade-off somewhere. Nobel Prize And you cannot say that Im 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

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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. Its like Im 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. Portrait of the Street Strategist as Bar Examiner -6his 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 T 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 Part 5, we discussed more questionable aspects of test construction as practiced by the examiners over the years. In this part, we shall discuss the benefits of converting an enumeration question into a problem-type question. Photographs and memories Some people do have photographic memories. And these are candidates who are probable topnotchers. Yet, are these topnotchers good analytical thinkers? The answer ought to be a thundering Yes.

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Isnt answering the bar questions a conclusive judgment on their analytical process? Having topped the bar, we ought to be assured that these topnotchers have the ability to think on their feet. Is the manner by which the bar questions are being constructed a safe harbor? By safe harbor, I mean that having passed the bar, one may conclude that the candidate is qualified as a lawyer with adequate analytical skills to analyze legal situations and not merely a parrot with good memory masquerading as a lawyer. Unless, of course, the bar questions do not measure such capacity for analytical thinking. Unless, of course, the bar is a test of memory rather than a test of analysis. Exemplification To drive home my point regarding the difference between analytical thinking and photographic memory, allow me to illustrate. Question: What are the actions for recovering property? The answer is simple. Of course, you know how many actions there are, and you should have memorized these from the Civil Code, the Rules of Court, and Supreme Court jurisprudence. This is an example of objective or enumeration questions. What is the goal of this type of questions? I really dont know, and if the examiners are going to reveal it to me, I dont think I would be convinced. Yet, these are the types of questions that separate the topnotchers with brilliant memory from the rest of the candidates. If the candidate has obtained a leakage, then the enumeration doesnt bother him, because he has perfect information. All he does is to memorize the enumeration. But if you have a great memory, then you can rattle off this list of actions with their descriptions. In addition, you can enumerate a million other provisions of the law. After all, thats the type of exams they give in the bar exams, and these memory questions are the ones that greatly determine whether you will be a topnotcher or not. Conversion challenge The previous question is one that calls for photographic memory. So now we arrive at a challenge. Portraying the Street Strategist as bar examiner, how should the question be reconstructed so as to avoid merely testing the candidates photographic memory but additionally test

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his analytical thinking process in integrating all the concepts related to the subject matter in question? Original question: What are the actions for recovering property? Reconstructed question: Fiona, wife of Clive, died in a hospital. Due to unpaid hospital bills, the hospital will not release her cadaver to Clive. Additionally, Fionas surviving parents who were against her marriage to Clive since the beginning likewise want to claim her body although they are also unable to pay the hospital bills. Under civil law, which of the actions for recovering property is applicable to recover the cadaver from the hospital? Who between Clive and Fionas parents are entitled to her cadaver? Explain your answers and the remedy to be taken. Which of the two question formats is better? And another huge issue is, are they essentially the same question? Still another issue: Which of the two formats is appropriate to use in the bar, the bar being the only RPM of the candidate? The original format requires only a probable topnotchers photographic memory. On the other hand, the reconstructed format forces the candidate to think and analyze each of the available actions to recover property, and which specific action applies to the instant case. Sometimes, you may not instantly remember all the actions or remedies but when given a problem you will remember one particular action that will apply to the case. It happens, right? You cannot enumerate all the instances but when one instance is presented, you instantly recognize it. The reconstructed form also introduces another issue of who has the locus standi to file the action to recover the body. Furthermore, the reconstructed problem is a legal situation, a controversy that requires knowledge and understanding, not mere memory work. It tests a lawyer, not a high school graduate who has brilliant memory. Is the reconstructed question a better performance metric of a bar candidate compared with the original format? Yes. Did the reconstruction work on the test question require momentous effort? No. You see, it all depends if the examiner has adopted a philosophy that will guide him in how questions should be constructed. Deceptive

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In the problem above, is the original question, in essence, the same as the reconstructed question? Of course, yes. Its all there for you to read. The answer to the original question requires you to enumerate all the instances, while the answer to the reconstructed question requires only one of the instances. In fact, the latter format is actually easier to answer. Choose one instance and justify it. Thats infinitely simpler than enumerating all the instances, right? Hmmm, wait a minute. Youve been with me for five years and by this time you know my style. Its very predictable. I map out a scenario, a very simple one, then I convince you to agree with me. Once youve been convinced, I subsequently reveal the deceptive simplicity of the scenario, and then I conclude that you were wrong in agreeing with me. That ultimate reversal is what I have been calling the Mesmerizing Exit. Going back to our instant problem, which is easier to answer, the original or the reconstructed format? The only way to judge is to know the solution to the problem. Lets attempt to answer the problem. We are lucky because unlike other enumeration questions which call for 7 to 10 items, the instant problem requires only four. Lets analyze the four items, and apply the best one that is appropriate for the problem. There are four actions in civil law that can be instituted to recovery property as enunciated in the very old but leading case of Bishop of Cebu vs. Mangaron (6 Phil. 286). First action The first one is accion interdictal to be filed with the inferior courts, the Municipal Trial Courts (MTC). Under this class, there are two actions to recover possession, but not ownership, of real property. The first one is an action for forcible entry (detentacion) in case the deforciant occupied the real property illegally from the beginning such as occupation by force, intimidation, stealth, threat, or strategy (mnemonic: FISTS). The other interdictal action is called unlawful detainer (desahucio) where the possessor had possession which was legal in the beginning but has since expired. For example, a lessee who overstays beyond the lease period is subject to a desahucio action. Bear in mind that accion interdictal, being a quieting process, is summary in nature, focusing on possession de facto (not possession de jure) and must be brought within one year from the time the cause of action arises.

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Is accion interdictal applicable to recover a cadaver from the hospital? No, because this action applies to questions of possession of real property such as land, buildings, or fixed machinery. Obviously, a cadaver is not a real property. Having excluded accion interdictal, lets proceed to the others. Second action The second type of action involving recovery of property is accion publiciana to be filed with the Regional Trial Court. The focus in this action is possession de jure. Unlike accion interdictal, which is summary in nature and filed with the MTC within one year, accion publiciana is plenary, not summary, and must be filed with RTC within 10 years from the accrual of the cause of action. Both are accion interdictal and accion publiciana are actions for possession (not ownership) of real property, therefore, not applicable to the cadaver, which is not a real property. By the way, try to query lawyers and even judges on this. A common misconception about accion publiciana is that it has to be brought after one year (not before) from the accrual of the cause of action. The reason for this misconception is that when the action to possession is brought within one year of the accrual of the cause of action, then one must file either a detentacion or a desahucio action, the two kinds of accion interdictal. That is wrong. That is a misconception. If the action for possession is based on FISTS, then yes, accion interdictal is the appropriate action. However, if the action is not based on FISTS, accion publiciana can be instituted immediately, without waiting for one year. For example, if the pleading does not allege FISTS in the dispossession, then the action is not detentacion and therefore the MTC does not have jurisdiction over the case. The action is recognizable only by the RTC, and therefore is an accion publiciana without waiting for one year to lapse. Third action Another type of action to recover property is accion reivindicatoria, (one of most misspelled words, even by law professors and authors) which is a plenary action, filed with the RTC and question is ownership (not possession) and must be brought within 10 or 30 years depending on the circumstances on prescription. Again, the subject matter is real property, therefore, this action cannot be applied to the cadaver case.

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By this time, have you noticed, that we have used our analytical skills instead of mere memory work? Fourth action The fourth action is for the writ of replevin. It is an action or even a provisional remedy where the complainant requests for recovery of possession of personal property as provided for under the Rules of Court. It can be filed from the moment of dispossession either with the MTC or the RTC depending on the value. Now, finally, we have arrived at a proper civil action to recover property that is not real property. The three actions we have previously discussed, accion interdictal, accion publiciana, and accion reivindicatoria are all actions on real property. Obviously, a cadaver is not real property. So, there we have it an action for the writ of replevin to recover the cadaver from the hospital. Simple, clear, and logical legal analytical process. See the difference between the ordinary examiner and the Street Strategist? Oops! Didnt I say simple things could be deceptive? Did you try to solve the dog and tower problem I proposed in Part 5? Guys, you still have time to send in your solution. I can increase the award to 20 winners. So far, I have received interesting solutions; better late than never. Sometimes, its like that. Problems can appear to be very simple that you can formulate the solution instantly in your head. But as you grow older in intellectual maturity, youd realize that the problem is so complex that you cant solve it in your lifetime. Anyway, back to the cadaver case. Actually, I proposed the problem to several persons, including three professors or bar tutors, one of which is a retired judge. Each of these three experts has teaching experience ranging from 20 years to 40 years. One is an author of four to five books. One has a photographic memory; he should have been in the Supreme Court where he can use his mastery of the law. The other one took ten years to simplify civil law in easy to read diagrams. While their reactions are common, some of them gave specific comments, and instead of narrating different conversations, here is a composite of their reactions. SS: What are the kinds of action for recovery of property under civil law?

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Expert: Forcible entry and unlawful detainer within one year on questions of possession of real property, accion publiciana after one year on questions of possession of real property, and accion reivindicatoria for ownership of real property, and writ of replevin for recovery of personal property. SS: Heres a situation. A person dies in the hospital with unpaid bills. The hospital refuses to release the body, what specific action should one institute? Expert: Hmm (Silence for a few seconds; their common silence signifies rapid analysis) SS: You cannot use habeas corpus because he is already dead. Can we use replevin? (I know replevin would be a doubtful remedy and that is exactly why I proposed the problem to them in the first place.) Expert: But replevin is for a thing? Is a cadaver a thing? SS: I dont know. Thats why Im asking you. Expert: Its not a thing. Its res nullius (the thing belongs to nobody). SS: It cant be res nullius. I want to have that dead body, I own it. Expert: Its beyond the commerce of man. SS: Some people sell cadavers to medical schools. Expert: Can the hospital do that? Can they withhold? SS: Oh, yes they do. If you dont pay, they will not release it. They even refuse you emergency medical attention when you are still dying because you have no money, how much more if youre already dead. Expert: Replevin cannot apply because it is applicable only to commercial personalty like appliances, motorbikes, cars, pianos. A cadaver is beyond the commerce of man. SS: So under what provision of the civil code should I base my action? Expert: I think you should sue for damages (this is their typical solution, I dont know why). SS: Yes, you can sue for damages. In fact, you can sue anybody regarding anything for damages. An action for damages applies to any case. What Im interested in is this: Under the laws of property, what is the exact cause of action I would have to institute? Is it any of the four? If not, what exactly? If you tell me damages, that does not answer the question on property rights.

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Expert: You can ask for the writ of preliminary injunction. SS: Of course, I can. I can pray for any preliminary mandatory injunction regarding anything, it is a general injunction. But an injunction is an ancillary remedy, it is not an original or principal action. Im interested in the law on property rights that I can use as my cause of action. If you say, that I can use replevin, I will use replevin. Expert: But replevin is not appropriate here. Just sue for damages with preliminary mandatory injunction to compel the hospital to deliver the cadaver to you. SS: If we use damages as our remedy, we can also use the principle of abuse of rights under Article 19 , or specific performance. Expert: You can use specific performance. SS: But specific performance is for breach of contract. Here, there is no contract to deliver the cadaver. They probably have the right of retention. I need a cause of action under property law, not under any other matter. Expert: This is not covered. The best option is damages with preliminary injunction. SS: Or invoke the principle of abuse of rights under Article 19. Is there any cause of action under property law? Expert: Why you dont ask author X? He will be coming next month. Hes an expert. SS: An expert on cadaver? Expert (laughing): Not yet, hes still healthy. But maybe he has some idea. Because I couldnt think of an appropriate action. (I did ask author X, and some of his answers are part of this composite narrative.) SS: Then maybe we have to create another action, a new one, under property law to cover this particular case. Legists block Even legists have their own mental block. Let me summarize our case. What we thought was a very simple case of recovery of property was actually a deceptive case. All the experts and the non-experts Ive talked to always fell into silence for a few seconds. Why? As experts they have memorized the four actions to recover property. This is why if this enumeration question is asked in the bar, only the aspiring bar topnotcher who has memorized all the millions of enumeration questions in the book will be able to answer.

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But once I converted it to a simple problem, their capability to enumerate using their photographic memory is swallowed by a black hole where even light cannot escape. The cadaver case is beyond the capability of normal memory work. Therefore, if this problem is given, it will discriminate the memorizers from the analyzers. Your masterful memory does not apply any more. You have to think. Originally, we thought it was a simple case of replevin. However, even the authors and experts agree that replevin is not the case. And worse, they could not name any action in property law to support a remedy. A writ of possession could have been a good candidate as a remedy but it applies to land cases. A suit for damages, for me, is a very weak solution. Yes, it is a remedy alright but it sidesteps the question regarding property rights. It is the last recourse of the weak. In fact, if the authors and professors decreed to me that replevin is the remedy, I would have swallowed it without question. But they did not. We could not rely on the Supreme Court because it will take 15 years for the case to reach there, unless, you raise urgent issues of law, not of facts. Maybe the Supreme Court will accept the case originally and decide in 24 hours because a cadaver is perishable. Remember that I asked you earlier, in the cadaver problem above, is the original question, in essence, the same as the reconstructed question? At first, we thought that answer was yes. Now, in hindsight, the answer is no. The original question calls for a prodigious photographic memory that could land the candidate as a bar topnotcher; it has a simple answer. The reconstructed question calls for analytical thinkers than even law authors, professors, and practitioners from 20 to 40 years could quiet directly attack; it has no answer Therefore, the two formats are no longer the same. Who owns cadaver? Now I have left open the question, who owns the cadaver? Remember the case when a bold movie star died in a car crash and the husband and parents fought for custody of the cadaver? On one hand, death dissolves the marriage and also dissolves the legal relation by affinity. Does the cadaver, being now beyond the dissolved marriage, revert back to the parents? Or is it property that can be apportioned among the heirs, husband and children.

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The question is not easy once the facts state that the husband has abandoned the wife for two years now and has children with a new live-in partner. Open your jurisprudence and textbooks now. And, yes, my command includes sitting judges. You will be surprised; many judges are ignorant of the law. Accion strategia What have we achieved so far in the installment? We have proven that an enumeration question assesses nothing in the qualifications of the bar candidate to become a lawyer with analytical skills. We have also proven that the Street Strategist can reconstruct a simple enumeration question into a deceptively simple analytical problem that may result in a problem with no solution at all. Guys, were just freethinking, okay? Dont let my hyperbole get in the way of your knowledge and understanding. And finally, we have just discovered a new gap in property rights theory. Why not create an action to cover these kinds of problems - actions involving personal property not covered by replevin? And, maybe, the new type of property action could be named after the Street Strategist. Hmmm,yes, it sounds good: accion strategia. Portrait of the Street Strategist as Bar Examiner -7his 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 T 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.

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In Part 4, we discussed the ego of the bar examiners and reviewed a few idiosyncratic bar questions. In Part 5, we discussed more questionable aspects of test construction as practiced by the examiners over the years. In Part 6, we discussed the benefits of converting an enumeration question into a problem-type question. In this part we shall discuss the bar reforms promulgated by the Supreme Court a couple of weeks ago. Preemptive coincidence Talk of preemptive coincidence. Five years ago, in Lessons from Strategy Myopia, my very first column for BusinessWorld, theres a section about the gift of perfect timing. In it, I recounted that the chief executive officer of the largest corporation in the country resigned exactly one month after I wrote Strategy Myopia, the classic that spawned the genesis of the Street Strategist. I wrote Strategy Myopia out of a whim, for no particular reason, except that I was in a writing mood at the particular time; finally, I possessed the power drive to write down the idea that the flagship companies which could have catapulted our country as a major world-class competitor suffered from strategy myopia. Indeed, the essay Lessons itself, was another opus with perfect timing. I wrote Lessons without any intention of having it published because of the very awkward character of the essay. It was unfit for reader consumption; after all, it was an essay about an essay that was just as long. Yet, in a perfect twist of irony, just as I was giving it the finishing brushstrokes, what I considered as the most unpublishable essay I have ever written became the singular perfect solution to my dilemma my inaugural column. (By the way, if theres no such word as unpublishable, I hereby coin it.) Over the years, I have mentioned several instances where articles I wrote with no apparent reason somehow become relevant soon thereafter. Proactive This series - Portrait of the Street Strategist as Bar Examiner - is one such coincidence. One day, I was in a writing mood for a legal topic and I realized it was a very long time since I had one.

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Aside from being predictable for kilometric discourses, I am also predictable in being unpredictable. I mean, I find it amusing to jump from one field of discipline to another. I lose some of my cult members, while gaining some, in the process of changing topics. Win some, lose some. After all, who is the reader who can maintain equal interest in ADHD, traffic analysis, prime numbers, ice trays, bank closures, the Modigliani-Miller proposition, financial evangelism, and now the bar examinations? And dont forget the dog and the tower problem. Anyway, I was just saying that I was in the mood for a legal topic, and out of sheer chutzpah, I applied my genius and wisdom to the design of bar examinations. Now, if you are a regular follower of the Street Strategist, you may have forced yourself to read the first few parts of this series, and made a mental note: Oh no, not another irrelevant series. Yes, an irrelevant essay would have been surmountable, but an entire series on an irrelevant topic for two months? Thats insufferable. And so it came to pass, that out of the blue, the Street Strategist embarked on yet another irrelevant series. But then, in another amusing gift of perfect timing, the irrelevant has suddenly become relevant; the obscure has suddenly become the focused; the immaterial has suddenly become material. Lawyers and even law professors have requested for copies of this series once finished. Why? Some of them want to examine the arguments in this series and see if they can use some of them for a petition to be submitted to the Supreme Court in the coming weeks. Again, why? As an exemplification of preemptive synchronicity, barely five days after the Part 1 was published, the Supreme Court promulgated new bar guidelines and reforms. Of course, it was released to the public only by the time Part 4 was published. Whats so momentous about these new guidelines?

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The proposed reforms are extremely radical and revolutionary. In almost a hundred years in the history of the bar examinations no such similar reforms have created instant controversy. The deans of law schools and other legal organizations are murmuring their reactions, which they shall soon formalize. Suddenly, what I myself thought as irrelevant, even to the members of the bar and the bench when I started it, instantly gained currency in this particular field of discipline. Not so much for the wisdom of the arguments but for the roots of the arguments themselves. The Street Strategist has prepared the groundwork for the debate by providing his own arguments, long before the bench and the bar realized there was going to be a debate in the first place. The Street Strategist has been demolishing the arguments of his antagonists long before the latter had organized their thoughts, in a game of debate long before the latter knew that there was a game to be organized. But you are familiar with this style. In my article the Strategic Stratification of Stocks I wrote: Instead elevate the competition to a battle of the minds. You have a headstart. You can set the rules. All the moves are in your head. Since you were the one who elevated the game, then you are the one with the vision to control game. You created the game. Its a game of strategy. Its not an analysis war, its a strategy war. Theres battle outside its raging and its not about research anymore. Its all about marketing your strategy. Now, isnt it amusing to ride on in this journey of ours - full of preemptive coincidences, proactive debates, and anticipatory synchronicity? Reforms The reforms promulgated by the Supreme Court are classified by scheduled implementation. These are Group A (within 1-2 years), Group B (within 2-5 years), and Group C (after 5 years) and Group D covering other issues. Within 1-2 years 1. Initial determination by the Chairman of admission to the bar examinations of candidates (on the merits of the each case) to be passed upon by the Court en banc. 2. Submission by law deans of a certification that a candidate has no derogatory record in school and, if any, the details and status thereof.

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3. Disqualification of a candidate after failing in three(3) examinations, provided, that he may take a fourth and fifth examination if he successful completes a one (1) year refresher course for each examination; provided, further, that upon the effectivity of this Resolution, those who have already failed in five(5) or more bar examinations shall be allowed to take only one (1) more bar examination after completing (1) year refresher course. 4. Promulgation of disciplinary measures for those involved in (a) attempts to violate or vitiate the integrity and confidentiality of the bar examination process; (b) improper conduct during the bar examination; and (c) improper conduct of "bar examinations." 5. Disqualification of a Bar Examination Chairperson: kinship with an examinee who if his or her spouse or relative within the third civil degree of consanguinity; having a member of his or her office staff as an examinee, or when the spouse or child of such staff member is an examinee; and being a member of the governing board, faculty or administration of a law school. 6. Desirable qualifications of Examiners: membership in good standing in the Philippine Bar; competence in the assigned subject; a teacher of the subject or familiarity with the principles of test construction; and commitment to check test papers personally and promptly pending the creation and organization of the readership panels provided for in item B(6) below 7. Disqualifications of Examiners: kinship with an examinee who is his or her spouse or relative within the third civil degree of consanguinity or affinity; having a member of his or her office staff as an examinee; or when the spouse or child of such staff member is an examinee; being a member of the governing board, faculty or administration of a law school teaching or lecturing in any law school, institution or review center during the particular semester following the bar examinations; having any interest or involvement in any law school, bar review center or group; and suspension or disbarment from the practice of law or the imposition of any other serious disciplinary sanction. 8. Personal preparation, by handwriting or using a typewriter, of fifty (50) main questions, excluding subdivisions, and their submission to the Chairperson in sealed envelope at least forty-five (45) days before the schedule examination on any particular subject; examiners should not use computers in preparing questions; 9. Apportionment of examination questions among the various topics covered by the subject;

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10. Burning and shredding of rough drafts and carbon papers used in the preparation of questions or in any other act connected with such preparation; 11. Publication of names candidates admitted to take the bar examinations; 12. Disqualification of a candidate who obtains a grade below 50% in any subject; 13. Fixing at June 30 of the immediately preceding year as the cut-off date for laws and Supreme Court decisions and resolutions to be included in the bar examinations; and 14. Consideration of suggested answers to bar examinations questions prepared by the U.P. Law Center and submitted to the Chairperson. Within 2-5 years 1. Adoption of objective multiple-choice questions for 30% to 40% of the total number of questions; 2. Formulation of essay test questions and "model answers" as part of the calibration of test papers; 3. Introduction of performance testing by way of revising and improving the essay examination; 4. Designation of two (2) examiners per subject depending on the number of examinees ; 5. Appointment of a tenured Board of Examiners with an incumbent Supreme Court Justice as Chairperson; 6. Creation and organization of readership panels for each subject area to address the issue of bias or subjectivity and facilitate the formulation of test questions and the correction of examination booklets; and 7. Adoption of the calibration method in the corrections of essay questions to correct variations in the level of test standards. Within 5 years Further computerization or automation of the bar examinations to facilitate application, testing, and reporting procedures. Other issues Items not covered by the resolution, such as those that pertain to a possible review of the coverage and relative weights of the subjects of the bar examinations, are maintained.

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For referral to the Legal education Boards: 1. Accreditation and supervision of law schools. 2. Inclusion of a subject on clinical legal education in the law curriculum, including an apprenticeship program in the Judiciary, prosecution service, and law offices. 3. Imposition of sanctions on law schools that fail to meet the standards as may be prescribed by the Legal Education Board. 4. Mandatory Law School Admission Test. Comments on Group A The only items that are critical under the Group A reforms are integrity of the bar (no. 4), the ego of the examiner (no. 8), the judicious apportionment of the questions over the coverage (no. 9). Coincidentally, I have fully addressed these issues in the earlier part of these series, and therefore my reflections on these issues are public. However, the most revolutionary of the all the ideas set forth in this Supreme Court resolution is the five-failure rule. Five-Failure Rule The five-failure rule (FFR) has taken center stage and is the center of a cacophonous raging controversy in the bench and the bar today. First issue: Does the Supreme Court have the authority to mandate the FFR, and can Congress pass a law to repeal such mandate in an act of legislative fiat? Unfortunately, in a long line of landmark cases decided long time ago, the Supreme Court has the sole power to qualify candidates into the practice of law. Second issue: Is there wisdom in the FFR? This is the raging controversy. Will the Supreme Court yield to requests for the dropping or relaxation of the FFR? I dont think so. Why? The Supreme Court manifested its wisdom in the cases of DECS vs. San Diego and Tablarin vs. Gutierrez that a student who fails thrice in the National Medical Admission Test (NMAT) loses his right to education to study in a medical school as a medical doctor. Note that there is a big difference between a mere admission test and the actual board examination for doctors.

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If the Supreme Court upheld the validity of the three-failure rule of a mere admission test to medical school, how do you think it will decide on any petition to remove their new FFR for candidates, not admission into law school, but into the actual practice of law? Actually, when I learned of the San Diego and Tablarin cases recently, although it was decided in 1997 yet, instantly, I thought: Uh, uh, I hope the Supreme Court will not think devilish ideas with respect to the bar. That is now moot and academic. In less than two months since I began to think about the frightening scenario, the Supreme Court did just that. Indeed, it had devilish ideas. FFR: Good or bad? Is the FFR good or bad? Let the other camp raise their arguments why the FFR is bad. Here are the arguments why the FFR is good: 1. Moral hazard. The lack of limitation in the number of attempts is actually a moral hazard situation. It is actually an insurance contract where the candidate is insured by no less than the Supreme Court itself, to become a lawyer, even without serious preparation. Its a certain event that will happen, sooner or later. 2. Removal of the wagering aspect of the bar. I have a friend who is a clerk of court in a Municipal Trial Court and she plans to take her eight bar this year. I have another friend who has a cousin who works in the Supreme Court itself, and has failed the bar five times. These are candidates who are working with the law on a daily basis. Is the bar that tough? Or is the bar exams a mere wager between the candidate and the examiner? Unprepared candidates relying on the wagering aspect of the bar, take the examinations just as if they are wagering in the lottery. After all, it is a mathematical theorem that given infinite number of attempts, the probability of success is unity. As long as there is no limit to the bar, the candidates will take the examinations even without preparation hoping that in due time, the law of statistics descends on them. 3. Focus on preparation. As a consequence of the FFR, the wagering aspect is removed, and the candidate will then rightly focus on preparation. Currently, without the limit, I know candidates who cannot even distinguish if a contract of lease for over one year over a real property can be perfected by mere consent or by delivery, whether it is a consensual contract or a real contract. Yet, they are taking the bar for the third time. And they are asked this question on an open discussion, open book basis. They really have a weak understanding of basic knowledge despite three bar attempts.

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4. Getting serious in law school. A common attitude among law students is not to study hard in law school. They reason out that theyll do the hard work in the bar review. Then in the bar review, they reason out that sooner or later they will pass the bar, anyway, given a sufficient number of attempts. The lack of limitation engenders a moral hazard with respect to their studies. After all, the bar is there forever. After ten times, the student hopes and thinks that he will learn the law. 5. Minimize cost and sacrifice. Given the new limit, only the prepared candidates will take the bar, thus avoiding the multiple costs and sacrifice shouldered by their families. The candidates being forced to take only up to five times, will limit his cost up to the same multiple. Or even lesser because he will not waste his bar opportunities. 6. More first time passers. By limiting the attempts, it is a natural consequence that there will be more first time passers. Why? The logic is simple. A candidate will not waste any opportunity or attempt. He will try to save on his number of lives by making certain each and every bar attempt is done with great preparation. Consequently, given that frame of mind, he may become a lawyer is his first attempt. 7. Few good men. Why is it that only 20% (1 out every 5) pass the bar? Surprisingly, the logic is the moral hazard situation I mentioned earlier. Maybe the bar is tough, or maybe only 20% really deserve to become lawyers. Why lower the quality of lawyers? However, I predict that given the current limits, this percentage will increase because only those who really are prepared will make the attempt. And if they still fail after five attempts, may be they dont deserve to be the same quality of lawyers who get hired by drug lords, corrupt officials, and abusive greedy wealthy men. And you know what, probably those who will not become lawyers will easily enter into heaven. After all, what is lawyering but the only profession in the world that legally allows you to shield the truth and frustrate justice by defending a guilty criminal? Comment on Group B Regarding the creation of Board of Examiners, I am against it, and I have fully reasoned out my apprehensions in the first parts of this series. Having two examiners for one subject will raise the issue of uniformity of appreciation of the answers. This should be discouraged. However, given the new limit of attempts, I expect the number of examinees to drop by at least a quarter. Are you going to wager your remaining balance of attempts by taking the bar without preparation?

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I will tackle the issue of objective type of questions in the next edition, but I think the previous few installments reveal my sentiments on this issue. Portrait of the Street Strategist as Bar Examiner -8his 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 T 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 Part 5, we discussed more questionable aspects of test construction as practiced by the examiners over the years. In Part 6, we discussed the benefits of converting an enumeration question into a problem-type question. In Part 7, we discussed the bar reforms promulgated by the Supreme Court coincidentally just after we started this series. In this part, we shall discuss the computerization of the bar. Weird coincidence Before we move on, let me recount this incident. One of the highest-ranking administrators of the Supreme Court flew into a galaxy far, far away on a weekend to give a lecture to a large audience about the Family Code. Since its not everyday that an authority on the subject wanders into that little patch of the universe, many attended the lecture. After the usual introductions as to the qualifications of the lecturer, the lecture proceeded rather quite smoothly. Among the introductory topics discussed was the concept of civil personality. The introductory concepts went quite well, really. But, suddenly, the face of the lecturer lit up to a smile, and she threw this question at the audience: Is a cadaver a property or a thing? And who owns the cadaver? The lecture hall was alive with small buzz; there were laughs of amusement. But there was one member of the audience who was catapulted to energized attention from his somnolent lethargy. A what? A cadaver? And why has that example, which is not ordinarily used as illustration, gained currency these days? Is the cadaver of former President Ferdinand Marcos a property or a thing?

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The lecturer went on to narrate that when she was still a trial judge there was a case where the concubine would not release the cadaver of the man to the legal wife. The legal wife wanted to file a case of habeas corpus, which of course, was improper. The legal wife merely wanted to borrow the remains for two nights of wake but the concubine would not release it for fear that the legal wife will not return the cadaver to her. The case was settled by compromise; the legal world was deprived of jurisprudence on remedial law. Do you think the audience member let go of that cadaver thing? No, way. The discussion of the cadaver as property or thing was not directly related to her lecture on civil personality. But why did she launch into that side story? Why did the cadaver issue gain currency in her mind? During a break in the lecture, he approached the lecturer: Madam, do you read BusinessWorld? She smiled with acknowledgement. Why, she said? Because lately there was an article there about Who owns the cadaver? she preempted him. Unfortunately, they were interrupted by others who also wanted to talk to her; then she was heading outside the hall. The participant in question was amused at the fact that the reason the cadaver was top-ofmind in the lecturer was due to Part 6 of this series. Now, at least, this was interesting. Two complete strangers meeting for the first time, but bound by common bond. You know, its always nice to know that you share something in common with a person absolutely a stranger to you. But that was not conclusive enough. He needed a blackletter confirmation. When she came back, he approached her with a few questions but delivered the confirmation query as the last question: Really, Madam, did you read that column in BusinessWorld about the cadaver? Yes, she said categorically. For a second or two, the participant was in a state of suspended animation. In his mind, zooming past like a Halleys comet were questions like, should I start a little talk with her about a thing we share in common? Should I ask her if she enjoyed the series? Should if I ask her if she is a regular reader of the column? At the last second, he aborted the attempt. It was good enough that he participated in the earlier discussions by correcting the citation of one of the leading cases she mentioned. It was no big deal, even other authors made the same mistake, although nobody knows why they keep using the wrong name of the respondent in this case.

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Anyway, I was saying that the participant, at the last instant, avoided any further attempt to discuss the cadaver or the fact that they shared something in common with lecturer: the Street Strategist column. He felt it was too inconsequential for the lecturer to discuss with him about a column and columnist that was not really about serious commentaries on politics or economics. He also feared doing so would reveal the childishness in him. After all, she is one of the highest administrators of the Supreme Court. Apparently, her position is high enough that she is officially entitled to use the title Justice before her name. He didnt think an official of that rank could be dragged into a conversation about the most famous unknown, although, he really wanted to discuss it. I mean, its not easy to find somebody who reads an obscure column like you do, right? Do you know how he would have started the conversation if he didnt abort it? I know. And Im going to share it with you. If only he did not fear being ridiculed for liking things that are irrelevant, immaterial, and inconsequential. The ensuing might have been a good conversation after the opening line. In his mind was this classic opening line: Madam, I am the Street Strategist, and yes, I wrote that. Well, theres one more addition to the weird collisions with the Street Strategist, all of which tend to reinforce the belief that I am the most famous unknown. Citations Should a candidate cite case titles and article or section numbers as basis of his answers? The examiners and bar reviewers come with a resounding, No. In fact, many examiners said that they think a candidate is pretentious and may be subject to a strict, instead of a generous, grading regime. This is good news to the candidate. What if you think you are better than the examiner? Now, I got your attention. Let me tone down the proposition. What if you remember a specific instance, that is not famous enough, that may have escaped the attention of the examiner? Anyway, lets move on. There was once a time when a certain expert on Civil Law and a former bar examiner mentioned that only the spouse can impugn the validity (absolute nullity) of the marriage. I raised the issue that the heirs can impugn a void marriage. But the expert said that the heirs can only impugn a void marriage in an estate proceeding after the death of the parents.

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I raised this point twice in the discussion but every time I did it, the expert would maintain that only the spouse when living can impugn, and heirs can only impugn the marriage in an estate proceeding. But we were talking of different things. What the expert is really saying is that the only time the heirs can attack the validity of a void (not voidable) marriage is by way of collateral attack (not direct) in an estate proceeding. On the other hand, what I mean is that the heirs, after the death of their parents, can attack the validity of a void marriage in a direct attack, not a collateral attack. These are two different animals. The first is an action, while the second is via a special proceeding. So every time I raised the issue, the expert would shoot me down. Of course, the shooting down was subtle. The expert is effectively saying, you are right that heirs can impugn the validity but you are wrong in the remedy to be used. On the other hand, I was saying to the expert that my remedy of direct attack is correct and that his remedy of collateral attack is at the same time correct. What is the bone of contention? Under the rule on nullity of marriages, Section 2(a). Who may file.A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. Guys, isnt that clear enough? Only the spouse can question the validity of a void marriage. Not even the Solicitor General can initiate it. So now, do you have a clear idea why every time I raise the issue of heirs directly attacking the void marriage, the expert would kindly guide me to a estate proceeding and a collateral attack? As I said, Im the unqualified, they are the experts. By the way, just to give you a reference point. The expert in question was a member of the committee of the Supreme Court, which drafted the above rule. By the way, the Rule itself, consisting of many sections, is controversial. I have heard of a Justice dissenting in a case at bar, but this is the first time I heard that a Supreme Court Justice issued a dissenting opinion to a Rule. It was very embarrassing, really, because obviously, all the people around me thought I was an obstinate ignorant. Well, in my embarrassment, I always rationalize, Im not a legal genius. I am entitled to my share of embarrassment. But you know me, I dont believe in experts. Do you know how many books misspell res ipsa loquitur as res ipsa loquitor? Funny, I asked several candidates and 100% of them chose the tor. I dont know why. Maybe Im the one whos wrong. Gentle reminder

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Anyway, after that embarrassing insistence that the heirs can directly attack, I can only tell you that in my mind, the battle was something else. Actually, when I raised that point, I was gently reminding the expert that although the rule is absolutely clear, there is in fact an exception worth looking at. In the case of Engrace Nial vs. Norma Bayadog (G.R. No. 133778. March 14, 2000) decided by the First Division, with Justice Ynares-Santiago as ponente, the Supreme Court squarely faced the issue: May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his death? After this revelation, should I be embarrassed on my constant repetition? Again, if you go by the rules, I am wrong. But if I go by Nial vs. Bayadog, I am right. Actually, I was surprised in a small way because the expert even mentioned Nial vs. Bayadog earlier in the discussions, so when I raised my issue on the locus standi of the heirs in a direct (not collateral) attack, I thought the expert would bring on this case too. Why the lapse on the part of the expert? One, Nial vs. Bayadog is famous for one doctrine that the during the entire five-year cohabitation of a man and woman without the benefit of marriage, they have must have no legal impediments, then they can marry without a marriage license. And precisely, the expert cited this case. However, aside from the civil law fame of this case, this case has a not-so-famous doctrine in locus standi under remedial law. And this is the aspect I was referring to which the expert did not realize. So now, going back to the issue of the bar: Do you need to cite case titles? The examiners say. No. But then, as I have recounted above, the expert, who was once an examiner in remedial law, did not realize the doctrine of Nial vs. Bayadog and insisted on the Sec. 2a of the Rule that was created by the committee of which the expert was a member. By the way, I have a poor memory, buy why did I remember this case? Because the lower court judge was a certain Ferdinand Marcos. How could you forget a name like that? And he dismissed the case precisely on lack of locus standi of the heirs and case was raised directly to the Supreme Court on pure questions of law. This was a sad case. The husband, while living with his mistress, killed his wife. He got married to the mistress without the benefit of a marriage license based on an affidavit of cohabitation that they have lived together for five years but in the earlier part of this five-year period, the wife was still alive. Husband dies in an accident. Children sues mistress for nullity of second marriage. Does the bar candidate need to cite case titles? Probably, if you think you are better than the examiner.

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But then the case was decided in 2000 while the Rule was approved on 2003, which should prevail, the absolute rule or the doctrine of the case? Come on, join the fray. Now, dont you think talking to the Street Strategist in person would have been fun? Alternative answers Another issue with the bar is the alternative answers. What does this mean? The UP Law Center invites experts to formulate answers to the bar questions. And you know what? Some questions have two conflicting answers, and some even have three alternative answers. Why is that? Is the bar question that hard, or is it improperly constructed thats why it is subject to misinterpretations? In 2002, in Civil Law, at least 8 out of 17 main questions had alternative answers. And the big problem is this, the bar examiner is not required to make public his own answer. Thus, the UP Law Center merely provides information for the bar examiner which the latter may actually exclude in correcting papers. By the way, one or two reviewers have mentioned that during these discussions, when the examiner is around, they could tell by the posturing that the examiner himself had the wrong answer in mind. Can you imagine that guys? Zero objective I dont agree with the new Supreme Court leanings towards the objective type of test, and I have discussed my philosophy and have given illustrations in the previous installments. Currently in place are objective questions such as definitions, or distinctions or enumerations. I still maintain that they test memory but not analytical skills given that only 20 to 40 questions are possible in the bar, and that they favor those who have leakage. Should the objective part be reduced to say only 5% of the questions? My philosophy is zero objective questions. I know you dont agree but hear out my logic first. Even if you say that only 5% is objective that is still a very harassing proposition. Why? Because even if you give me only 5% or 10% or whatever percent of enumerations, I would still have to memorize all those distinctions and enumerations. Who are legitimate children? What are the grounds for disinheritance?

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We had this discussion before. The tyranny of the enumeration kills valuable review time for the candidate who should be tested on his lawyering skills. Dont ask for the enumeration of the recovery actions for property rather ask how to recover a cadaver from a hospital. There should be zero objective questions and any of those enumerations or distinctions should be converted into a problem-type. For example, instead of defining what is accion in rem verso, why not create a problem where the facts of the case would make the candidate think: Is this a case of accion in rem verso or solutio indebiti? Funny, I asked several candidates some time ago, and 100% of them didnt know what is an accion in rem verso. Stateside The concept of multiple choice, true-false, enumeration, distinction and other objective equations are found in the U.S. bar exams such as California. But to adopt them in our jurisdiction will be a mistake. In the US, passing law school is very hard, therefore, for them the bar is not really much of an RPM. The objective questions in California are not matter of life and death because the bench knows that the candidates are prepared having passed through the rigors of a California law school. But in this country, many law schools are diploma mills. In some schools, the students pray that the professors will be absent. In some schools, the students pray that the professors will be present. Thats how sub-standard some law schools are. Even the professors dont take their duties seriously. This is the reason that instead of wasting bar questions to test their memory, the questions should challenge the minds of the candidates. Hence, zero objective questions. Computerized test The Supreme Court wants objective questions but the Street Strategist wants zero. Yet, we can meet halfway. The Supreme Court has envisioned the computerization of procedures or checking but these are meant to shield the bar examiner from hard work obviating the fact that the bar is a lifetime decision for the candidate. If the examiner is not willing to work hard, he should decline. PBQ

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But I think the kind of computerization envisioned by the Supreme Court is not comprehensive enough in strategy. Allow me to fully integrate a philosophy into the computerization I propose a PBQ (pre-bar qualification) exam that is 100% computerized and 100% objective. That is, multiple choice, matching, and true-false (MCMTF). 1. Before taking the bar, which will be 100% problem analysis, all candidates must first obtain a PBQ certificate. No PBQ, no bar. Result? Only those who have enough knowledge will be given the privilege to take the bar. Thus, the examiners will no longer be saddled with candidates who do not know the period for perfecting an appeal of a habeas corpus case. 2. A PBQ certificate is obtained by passing a 100% computerized, 100% MCMTF test. This is not part of the bar. But only those with PBQ can take the bar. 3. A candidate will sit in front of a computer take the PBQ test and only those who obtain 90% or more can take the bar. If he fails, then he takes another PBQ test after 30 days. Why 90%? Why not? The answers are guided because they are MCMTF. The computer gives results in seconds. Only the knowledgeable ones should burden the bar examiner. 4. The Supreme Court will of course administer the PBQ centers, in five sites in Luzon, and five spread out VisMin. The integrity of the PBQ will depend on the integrity of the Supreme Court employees watching the computers. Probably a hundred computers in each site. 5. The candidate can take the PBQ only every 30 days, therefore, he reviews again all the concepts. By the way, this PBQ will spawn many flow on businesses. The Street Strategist, for example, will create CDROMs for sale containing a million MCMTF questions. The candidate can test his knowledge at home before he actually takes the PBQ. 6. This PBQ concept is not strange. If you take a drivers license test in the U.S. it is completely computerized. Therefore, it is the computer that screens the candidates. And you wouldnt realize this but the PBQ will greatly improve the quality of candidates with respect to their knowledge (not lawyering skills yet). 7. The PBQ is similar to the pilot and flight attendants test on emergency landing procedures worldwide. In some airlines, even a 50-year old pilot will be dismissed if he fails to get 95% in ELP tests. After all, will you fly in a jet where the knowledge of the pilot on ELP is only 70%? In some airlines, the passing is 100% but you are given infinite attempts. In some airlines, you are only given three attempts to get 95% rating. After the third, you will be dismissed even if you have been an employee for 10 years. 8. The PBQ advantages will outweigh any possible disadvantages. Computerized prescreening; zero work for the bar examiners; forced comprehensive learning on the part of

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the candidates; quality assurance regarding the knowledge of the candidates who take the bar; only a few candidates will actually take the bar; the wagering aspect of the bar is removed and transferred to the computer test, and the Supreme Court makes money out of the PBQ testing fee, and many others. 9. Being computerized it is easy to include new rules and jurisprudence. Yes, even jurisprudence can be a part of the PBQ. For example: Which of the following cases declared that an oil pipeline is a common carrier? A) Macariola vs. Asuncion; B) Calalang vs. Williams; C) Co Kim Cham vs. Valdez Tan Keh; D) None of the above. 10. These PBQ centers can be used by the Philippine Judicial Academy for the prejudicature, the mandatory continuous learning (MCLE), for the bench and for the bar. Strategy I am against objective questions in the bar itself due to the limited questions possible but I have proposed above an integrating philosophy that solves many problems associated with the bar, by computerizing it but in a twist that it introduced the concept of prescreening that is painless to the examiner. Can imagine a bar candidate that gets 90% in the PBQ and only those will take the bar? The papers would be a joy to correct. Actually, this can be done in less than two years. We can start assigning a team to create a million MCMTF questions starting today, and let the computer geniuses of the country buy the software utilized by the US nursing review centers in creating reviewer CDROMs. Again, the integrity depends on the employees but since the questions will be at random, what does it matter if a candidate had a copy of the same CDROM? The Supreme Court can even sell copies of the CDROM itself. Study at home, and then take the same exam randomized at the PBQ center. If you can answer then you have the knowledge, you have pre-qualified for the bar. Its not really different from selling textbooks and asking the candidates questions taken from the textbook. Happy all. Just think of the multiple flow-on benefits of this proposal, and how easy it is to implement. Its really different when we adopt our philosophy, right? Seeing what everybody else has seen and thinking what nobody else has thought. I have to say goodbye for the moment, and by the way, Madam Justice, I am the Street Strategist and thank you for entertaining my questions and for reading my column. As for the rest of you guys, dont forget you learned of the PBQ first from the Street Strategist. Now go and strategize your own professions, companies, operations and your love lives.

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Portrait of the Street Strategist as Bar Examiner -9his 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 T 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 Part 5, we discussed more questionable aspects of test construction as practiced by the examiners over the years. In Part 6, we discussed the benefits of converting an enumeration question into a problem-type question. In Part 7, we discussed the bar reforms coincidentally promulgated by the Supreme Court just after we started this series. In Part 8, I proposed the implementation of the fully computerized Pre-Bar Qualification (PBQ) exam to screen out those incompetent to take the bar. The PBQ can also be used in the prejudicature and the mandatory continuing legal education (MCLE) programs. In this part we shall discuss the possibilities that the answer that the bar examiner has in mind, may be different from the candidates answer, and the latter may be correct. Weird coincidence, part 2 Well, in another very weird coincidence, during another lecture forum, the handsome professor asked, out of the blue: Is a cadaver a property? Is it a thing? Come on guys, why is this question gaining currency in your minds? I was very much amused. Really. You know, incognito, is a very fun thing. Well, of all possible speakers or lecturers, this bar topnotcher would be top of the list as a reader of BusinessWorld. After all, he was a former commissioner of a financial regulatory body. As we drove to his hotel, knowing that he was one of those who drafted the Five Failure Rule (FFR) and other reforms promulgated by the Supreme Court discussed in my previous installment, I told him that I disagreed with the formation of a Board of Examiners. Precisely, as I wrote in this series, because of the institutional corruption involved in the bar. Some judges can even be corrupted, selling their TROs and decisions, how much more for the examiners?

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He related that some organizations do nothing but identify the examiners. Once found out, they try to talk to the secretaries, colleagues, drivers of the examiners. These organizations can offer as much as P100,000 per question. If a secretary can leak 10 of the 50 questions, she stands to gain P1 million, and she can justify it by knowing that she helped some people pass the bar. How about the poor provincial candidates with no connections and bar operations? On another issue, I told him I was against the objective types of questions. He reasoned out that in the U.S. bar exams have multiple choice, true or false, matching types. I repeated my arguments that the case of the U.S. is different. I have written about this last time. I told him, Do you know, sir, that there are some law schools, who pass their students and simply leave everything to the bar? Some professors rarely attend classes themselves, and for this reason, they have no moral ascendancy to fail the students. Some professors attend only once a week. Really? he said. Yes, and if we allow these students to take objective type of bar, then we will have lawyers with no lawyering skills. In the U.S. the law schools are strict, the students learn lawyering in law school, and for that matter, the bar is nothing but a mere formality to them. But in the Philippines , law schools are diploma mills. That set him thinking for a few seconds. I know that the chief executive officer of the National Conference of Board Examiners in the U.S. was one of those who proposed bar reforms. But her experience doesnt count. Their law schools are a continuing four-year bar exams, while in this country, the bar is a continuing lottery contract. Anyway, I have proposed my own reforms in this series, not as an expert but as an outsider looking in. Examiners I hope the Supreme Court will revert to the old guideline that the bar examiner should not be an expert on the subject because he would be asking about deep topics for experts and not the basic knowledge required of new lawyers. For example, a bar topnotcher who is now practicing mercantile law should be assigned to Labor Law. An expert on Taxation should be assigned to Civil Law. In this manner, while the examiners were former topnotchers or former Justices, or former professors, they still have the general knowledge of being topnotch lawyers but not the tyranny of subject expertise.

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The subject experts will be asking about exceptions to the general rule in almost all cases. That is the tyranny. Even the members of the committee of the U.P Law Center balk at the inappropriateness of many questions asked by subject experts. Personally, I have met some experts, over a period of time. What if these people are the examiners, and I would be answering their questions? Hop on. Garbage Hypothetical bar question: Is garbage res nullius? Explain. In one instance, a professor, who is the editor of the book that provides the Supreme Court answers to the bar examinations every year as formulated by experts, was giving a lecture on property. He once cited garbage as an example of res nullius (belonging to no one) in contrast to res alicujus (belonging to someone). This professor has been teaching at the state university for over twenty years. His colleagues have been bar examiners, and many of his former students are now occupying high government positions. If he were the bar examiner, and he asked this question, guys like me stand no chance at all; I have a different answer. During the coffee break, I approached him and said: Sir, I think using garbage as res nullius might be a bad example. He said, Why? I said, Just because a thing is thrown away by the owner doesnt mean somebody else cant own it, even if its garbage. He said, But thats for anybody now to take. I said, Not really, sir. I think the State owns it. The moment, the State uses funds and resources such as garbage collectors and garbage trucks to acquire that garbage, then that garbage is not res nullius. It is res alicujus, and the owner is the State. He nodded his head, and said, Yes, yes I continued, What if theres an invention that can turn garbage into something really valuable? Then everybody will be fighting for that garbage. And if the State has already expended economic resources to acquire that garbage, it should be owned by the State. He nodded in agreement. I continued, Actually, sir, just as an illustration that somebody owns the garbage, there was this case in Hong Kong. All garbage are gathered by the trucks to garbage depots

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around the city. In one case, a government garbage employee, segregated things that are still in good condition such a sofa beds, stereos, aircons, refs. He said, Ah, yes, there they throw away appliances that are still working. And thats what some of the seamen bring back home. I said, Yes, sir, and they are still very good. So, this worker in the depot, segregated the good ones, and later on sold them for a few bucks. But you know what happened, sir? What? he said. This worker of more than ten years lost his job, I said. Why? Because he was charged with corruption. When he sold garbage for a profit, he was actually selling government property, and that money should have gone to the government. It does not matter if the government wouldnt have sold it in the first place. Its the governments decision to sell or not to sell garbage. But then the worker profited from the garbage and that was corruption. He lost his job. Thats how strict they are? he asked Thats how seriously they treat corruption. I said. In this country, the top officials could be receiving millions from gambling and drug lords; the customs and internal revenue field men could be owning mansions, and we only get one or two token charges filed in court that will be dismissed eventually for lack of evidence. We dont even think of selling garbage as a crime here but in Hong Kong, a worker loses his job for scavenging. Anyway, sir, this is just an illustration that garbage might not be res nullius after all. A tenured worker lost his job over it. Goodwill Bar 1999: Is depreciation of goodwill deductible from gross income for income tax purposes? In one occasion, a tax expert who sits in the committee that the Supreme Court has designated to prepare answers to the bar questions in taxation, gave a lecture on allowable deductions from gross income. When he touched on goodwill, I was eagerly waiting for his pronouncement. I knew that in 1999 this was a bar question because, coincidentally, again, it was on that year that I wrote the article The M&A Whiz, tackling among others the then stormy proposal by the US Financial Accounting Standards Board (FASB) to change their treatment of goodwill. I also wrote a follow-up article Goodwill the Intangible.

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What I was interested in was how he would discuss the changes in the tax treatment of goodwill. That same question in 1999 would have a different answer in 2001. He said goodwill cannot be amortized, and is not allowed as a deduction from gross income. So far, so good. That is the new answer. But I wanted him to discuss the historical change so that others could have a deeper insight into the concept of goodwill. Why cant we amortize goodwill? I asked. Because it does not a definite life, he said. What if we assign a life to it? No, it does not have definite life, it is an intangible, he said. Cant we assign a life of 20 years or 40 years to goodwill? No, it has no period or life at all, he said. He was somewhat annoyed that I couldnt understand a simple thing such as goodwill not having a definite life and why I insisted in putting a life span to it. The others in the conference hall were probably wondering about my asinine line of questioning. If the tax professor were the bar examiner, still, I dont have a ghost of a chance. I approached him after his talk. I said, Why cant we amortize goodwill? His answer was the same. But in the U.S. you can amortize goodwill, right? I said. I dont know, he said. Yes, you can, and in fact, this was a very big hit during the merger manias such as Worldcom-Sprint. Their annual amortization about twice the capitalization of PNB is tax deductible. It was then that I realized, we were talking of apples and oranges. He was talking of RP GAAP which I did not know, and I was talking of US GAAP which he did not know. All this time, I thought I had the correct answer to the 1999 bar question on goodwill. But I thought wrong. It didnt sink in to me at the time that this country uses the IAS standard while my limited knowledge was based on the U.S. FASB standard which allowed from 20 to 40 years for amortizing goodwill. But then, again, since 2002, the FASB abandoned goodwill amortization and opted for goodwill impairment.

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By the way, I looked up UP Law Centers official answer to this question and they offered two answers, both correct: a) No, it is not deductible and b) Yes, it is deductible citing different reasons. So which is which? Thats the bar for you. Youre even fortunate that the said center did not come out with three different answers, which they did with some questions. All Im saying is, if the tax professor were the bar examiner, I dont have a ghost of a chance because my answer is different. Commodatum Hypothetical bar question: Are depositum, commodatum, and mutuum gratuitous? Can there be a stipulation to the contrary? A former judge and professor of law, not sure if he still is, who tours the lecture circuit around the country once said that depositum, commodatum, and mutuum are gratuitous, unless there is a stipulation to the contrary. If he were the bar examiner with the question above, Id be a goner because my answer is different. I raised my hand to interject a query but he ignored me. You see that is a very important concept. According to this, if you borrow money from me (mutuum) without any mention as to interest, then it is presumed that there is none, despite the fact that I have a risky lending exposure. After his lecture, I approached him. You said earlier that depositum, commodatum, and mutuum are gratuitous, unless there is a stipulation to the contrary. Yes, he said. Therefore, in depositum, even if I burdened the person with my deposit of personal property, I dont have to pay him? Unless there is a stipulation to the contrary, he said. But sir, you cant have a stipulation to the contrary in commodatum, I said. Why not, you can have a stipulation, he said. But, sir, in commodatum, you cant agree on payment, I said. Why not? Because the moment there is payment, it ceases to be a commodatum, I said.

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What would it be? he asked. It would cease to be a commodatum, and it becomes another contract such as lease. I said. Ah, yes, he nodded as he finally saw my point. But commodatum is essentially gratuitous. Essentially gratuitous, or absolutely gratuitous? I pressed the point. He thought for a second or two before answering this question. Absolutely gratuitous, he finally agreed. I was glad that our answers finally converged. As I said, if he were the bar examiner with the question above, Id be a goner because my answer is different. In personam Hypothetical bar question: In an action strictly in personam, may there be service of summons by publication? If the author mentioned below were the examiner, and I would have to take that particular bar, I will surely flunk, because his answer is divergent from mine, as usual. Involved this time is a bestselling author of several books for bar candidates. During one of his lectures in the conference hall, I slipped him a note that read: In your answer in your book, you stated that it is not allowed, unless the action is converted from an action strictly in personam to an action quasi in rem. You cited Citizens Surety vs. MelencioHerrera 38 SCRA 369. Some of lecture participants are now debating; because they agree with your books answer but, respectfully, I disagree. This is patent Street Strategist. You know, if you ask me to recite the 11 exceptions to the hearsay rule, I could name only three. On the other hand, even if you dont ask me to, I will find chinks in the armor of experts whether traffic experts, economists, or legal luminaries. Of course, not being a legal genius, nobody believed me, even if I revealed my logic to them. After all, who was I go against the book which devoted half a page to specifically to this question? As I have said many times before, facts alone do not form a belief. Some people demand the credibility of the person himself, not what he is talking about. Its sad, when you come to think about it, that some people cant separate the thought from the personality. My note continued, Your answer now creates a confusion in my mind because I am under the impression that the Rules of Court does not distinguish whether the action 1) is

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purely an action in personam, or 2) an action in rem, or 3) an action quasi in rem. (When the law does not distinguish, we should not distinguish.) In fairness to the legal expert, I consulted the book by a retired Associate Justice of the Supreme Court who currently holds the highest scores in the history of the bar examinations. The latters book is not very eloquent on the matter, and even cited the same jurisprudence above. Of course, we know that Ameurfina Melencio, who was a former Associate Justice of the Supreme Court is the third woman to top the bar (1947), next to Cecilia Munoz (1937) who also later become an Associate Justice of the Supreme Court , and Gregoria Cruz (1946). In the abovementioned case, when she was still a trial court judge, Justice MelencioHerrera dismissed a case because there was no proper service of summons on the defendant because it must be done in person, and not by mere publication. The Supreme Court sided with her that the court has not acquired jurisdiction over the defendant but overturned her decision to dismiss the case, and instead instructed her to archive the case. The two authors contention: In actions strictly in personam, summons by publication does not vest jurisdiction over the defendant, otherwise, his constitutional rights of due process will be violated. The remedy, according to them, is to convert the action into one which is quasi in rem. My position is that it is not necessary to do so. Why is there a need to convert it? Anyway, by talking to some of the lecture participants, I soon realized why it is so hard for them to accept my idea, which is probably the same reason why the two legal luminaries are committed to Citizens Surety vs. Melencio-Hererra. Every time the defendant is missing, the authors applied Sec. 15 or Sec 16 but mysteriously turn a blind eye on Sec. 14 of Rule 14 of the Rules of Court. Obviously, my friends follow the luminaries. Of course, since I am an amateur, I have no qualms whatsoever in disagreeing with a former justice of the Supreme Court who retains the highest ever ratings in the bar, and a former judge who is an author of several books on different areas in law. It was only when I showed the distinctions, which is not clear from Rule 14 itself, that I was able to convince some of them. My note further read: Sec. 14 is intra-territorial, a point not specifically pointed out in the Rule. Therefore, this section applies when the defendants Philippine address is unknown, but still residing in the Philippines, and that summons by publication under this section applies to any action including ones strictly action in personam. (when the law

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does not distinguish we should not distinguish.). There is no requirement here to convert the action to one which is quasi in rem. Sec. 15 is extra-territorial. Therefore, it applies only to actions quasi in rem or actions in rem (but not to actions strictly in personam.) Since Sec. 15 is extra-territorial it has additional requisites compared with Sec. 14 which is only intra-territorial. Therefore, the requirements in Sec. 15 should be followed. Sec. 16 is extra-territorial. Therefore applies only to quasi in rem or in rem actions but not to actions strictly in personam (when the Philippine resident is temporarily abroad.) Eventually, the author after having scanned my arguments on why I disagree with his book, said, Shall we discuss this in this forum, or shall we discuss this later? He didnt want to openly discuss my objection to his book, but then he made a sweeping statement without referring to the clash with his answer in the book, Under the Rules, it is possible to serve summons by publication in an action in personam and so on and so forth. And then, he made one last remark: This will make a good bar question. Thank you, sir. At least, our answers converge, finally. I hope his newly released edition contains the issues we discussed. What do the other legal luminaries think? Come on guys, join the debate. Isnt it fun that an unqualified amateur such as the Street Strategist could bring the discussions on obscure points of law to a controversial level? Income tax Hypothetical bar question: Is income tax, as an operating expense, deductible from gross income for purposes of rate-determination of a regulated utility? Explain. If this was asked by the experts, I would suffer big time. One of the highest ranking officers of the BIR said, No. He cited the latest jurisprudence of the case. But, sir, that is the worldwide standard, I protested. No, under the internal revenue code, income tax is not one of those deductible, he said. Thats what the Supreme Court said. Well, I was testing him on what his reaction was to this case. As expected, he agreed with the Supreme Court.

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During the coffee-break I cornered him. I started in this way, Sir, regarding that case, I know that the Supreme Court has decided, and being a taxation expert, you agree with the decision. He looked at me. The lawyers of the private utility are my drinking buddies. During the pendency of the case, I told them that they cannot possibly make the taxpayers pay for their income tax, or deduct such tax from their gross income. I said, But let me tell you why the Supreme Court is wrong, and why the private utility itself is wrong, and why the Solicitor-General is wrong. Who wouldnt fall for a statement like that? He gave me the attention. After about ten minutes of illustrating my logic, he, unexpectedly, agreed with me. Thats was fun. Really fun. Now, that is a complete reversal on the part of the taxation professor who is the principal member of the committee that prepares the answers to the bar questions on taxation law. But I cannot discuss the details now; only in another article. All I can tell is you is that we ended our discussion with proposals as to the remedy left for the private utility now that the Supreme Court decision has become final. Anyway, I was saying that if this were asked in the bar, the answer of the examiner will be different from the answer of the Street Strategist. Thats one thing, for sure. Yet, after listening to the arguments of the Street Strategist, whose answer will change? Thats one thing thats no longer sure. It could go either way. Options Hypothetical bar question: Distinguish options from warrants. If the expert below were the examiner, I would be annihilated in the bar. Why? Because my answer diverges from his. This time, the person involved is a real expert. He was a former bar examiner in Mercantile Law. He has worked for more than 20 years in the biggest financial practice law firm in the country. He is a professor of law, and of, course, a book author. I love to sit-in and listen to conferences, lectures, and forums, on any topic, whenever I can. Whether it be science, engineering, accounting, literature, whatever. At this one lecture, I listened to the lecturer with interest because it was about banking and finance laws. When he arrived at one particular topic, I raised my hand and said: Sir, theres a mistake in your book. Remember, I didnt ask him to clarify if it was a mistake or not. I said directly that there was a mistake.

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A mistake? Where? On this page I told him the page. The others in the lecture hall were murmuring, after all, they didnt even know there was mistake. They opened their books as well. Yes, whats the mistake here? he asked. Oh, its just a typo, sir, I said. You probably mixed up the cut-and-paste. Which one? he said. Wait a minute, I thought he saw the mistake by the time he saw the page. The definition of options is not correct, I said. The definition of warrants is not correct too. Why, what should it be? he asked. Oh boy, this was getting serious. Just a typo, youve got their definitions reversed. I said. The one for options should be the definition of warrants, and vice versa. No, these definitions are correct, he emphasized. They are not reversed. But, sir, the definition of options is I proceeded to discuss with him why his book was wrong. But that is exactly what an option is, he said. These definitions are correct. He said that with finality. It was not use arguing with him, it was his book, he was the practitioner, and he was a former bar examiner on Mercantile law. As for me, when I raised my hand, I only wanted to point out to him the typo error in his books. After all, it was written for bar candidates. It then turned out to be a very scary revelation. The error was not in the typo. The error was in the experts knowledge. The error was in the experts understanding. How can you correct that? After all, who was I, but just another nameless face in the crowd? The worst part is this: We were not arguing on a mere statement of fact in his book. No, its not that simple. We were arguing about the correct answer to his Question and Answer portion in the book. In other words, his own Q&A had the wrong answer. Thats the worst part. I just hope that this will not come out in the bar exams. Otherwise, using his book, the candidate will be annihilated. Of course, I could be wrong. After all, I wrote a short

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history of option theory in my article The Exogenous Actor. Remember, when it is the expert against the Street Strategist, you know whose side you should be on. Mind benders But you must bear in mind that I made extra efforts to make them change their minds and their answers. Would a candidate have such luxury in the bar? Remember, that virtually all the examiners have demanded that a candidates answers should be limited to three sentences because it is not easy to correct 50 booklets every day for 5 months. Altogether, the Street Strategist has an amateur mind, therefore, subject to any corrections from the experts. A mind that questions every tradition and presumption established by leading experts in the industry, a mind that has the courage to expose its own ignorance, a mind that has the ability to see what everybody else has seen and think what nobody else has thought: the mind of the Street Strategist. Portrait of the Street Strategist as Bar Examiner - 10 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 T 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 Part 5, we discussed more questionable aspects of test construction as practiced by the examiners over the years. In Part 6, we discussed the benefits of converting an enumeration question into a problem-type question. In Part 7, we discussed the bar reforms coincidentally promulgated by the Supreme Court just after we started this series. In Part 8, I proposed the implementation of the fully computerized Pre-Bar Qualification (PBQ) exam to screen out those incompetent to take the bar. The PBQ can also be used in the prejudicature and the mandatory continuing legal education (MCLE) programs. In Part 9, we discussed the possibilities that the bar examiners answer may be different from the candidates answer, and the latter may be correct. In this concluding part, the Street Strategist offers an integrating philosophy on learning, teaching, and analysis. Philosophy

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Throughout this series, you may have discovered that the Street Strategist has specific comments on specific issues in test construction. They may be scattered all over the place but in his mind, they are neatly and perfectly arranged based on his philosophy. You may have discovered as well that he feels strongly about certain issues to the point that he completely disagrees with the Supreme Court in its decision to increase objectivetype of questions up to 40%. You may think that he has an unjustifiable abhorrence against objective questions. On the other hand, he thinks that the Supreme Courts decision was anchored on a wellmeaning but backfiring philosophy. It is therefore, a clash of philosophies: The Supreme Courts philosophy favors increased objective questions.; the Street Strategists philosophy abhors them zero objective. Much of his scattered thoughts and strong sentiments about the different facets of the conduct of the bar examinations, or any other examination for that matter, may come across to you as random, disorganized, and haphazard expressions of emotional sentiments. But theyre not that at all. They are based on the foundations of his philosophy on learning, teaching, and analysis. Whenever he notices a statement or procedure that sticks out against this philosophy, immediately, he points out the inherent weaknesses of such statements. Thus, throughout this series, what may appear as potshots and reactionary sentiments on his part with respect the bar examinations are actually implementations of his personal philosophy. Now is the time to integrate all those comments, reactions, and concepts under one sweeping philosophy. However, being a personal philosophy, you may completely disagree with it. KW The Street Strategist calls his philosophy Kennen und Wissen (KW) which is German for to know and to understand, respectively. He first mentioned this philosophy in his article The Tobin Tax: a strategy against currency speculation written in 1999 and is part of his book, Strategy Myopia (2002). He has since mentioned KW in subsequent articles. It was his humanities professor in college, who emphasized that to learn is to know and to understand. The professor wrote: x = a + b. To learn = to know + to understand.

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If you only perform the to know part of the equation without doing the to understand part, then the equation is not complete. Your education is half-baked. The Street Strategist has since adopted this philosophy and transformed it into the KW philosophy with some implementing and operational ideas. The flow-on benefits of KW are tremendous. Given this philosophy, a student or a teacher would immediately recognize any statement or procedure or activity that runs counter to it. Consequently, one will not pursue such countermanding activities or statements. Whenever you break down your study of law or mathematics into the knowledge portion and the understanding portion, instantly, you will realize where the weakness in your learning lies. It is some kind of a self-critical analysis. Without the KW philosophy, you will have no honest self-evaluation of your education. With the KW philosophy, your self-evaluation is truthful. Magic It works like magic. Before KW, you are confused. After KW, it becomes crystal clear: you will know that youre confused, and identify exactly where the confusion lies. In other words, KW works as a dissecting instrument; it will cut through all the morass of confusion and will map out for you exactly where you are confused. Thus, instead of merely in a state of I dont know you will be elevated to a state of Now, I know why I do not know. The difference between these two sets of realization is tremendous. Application With KW, your attitude towards learning will be changed. For instance, if somebody asks you. Do you know what is a certiorari? Then your answer would be: As of the moment, I dont know what it is. But once I know what it is, I am sure I will understand it better than you do. Thats the attitude. Lets apply this principle to some situations. Stranger: Do you know something about bonds? SS: Not yet, but once I know about it, I am sure I can explain it better than anybody can. The result is the article The Century Bond. Stranger: If you find a cellphone, should you return it?

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SS: I dont know. Let me find out, then I will even give you more insights into theft. The result are two articles, Theft and Forced Reward, which came out with very unexpected conclusions regarding the issue of rewards. Stranger: Do you know traffic engineering? SS: Not yet, but once I know about it, I can understand the causes of traffic and will propose solutions to the problem. The result is the five-part article Traffic Wizard. Stranger: Do you know the size of A4 bond paper? SS: Not yet, but after knowing it, I will go further by understanding why its dimensions are like that. The result is the article A4. Stranger: When wristwatches are advertised what time do they usually display? SS: I dont know, but Ill find out and will even try to understand why they choose that particular time. The result is the article 10:09:36. Anyway, what Im trying to say is that given the attitude that learning does not stop with knowing but ends in understanding, we can solve time travel, split quarks, and sort out the certiorari conundrum. The Street Strategist thinks that his greatest personal experience was with debit and credit. Usually, the problem is that one knows about a certain topic but does not understand it. In his case, it was worse: Both knowledge and understanding were lacking. He did not know what were debit and credit, and worse, he did not understand them. It took him a decade to know and finally to understand debit and credit, but it was worth it. The Street Strategist has formulated six codes and three rules that he claims as the worlds most effective and most efficient method to learn debit and credit with perfect accuracy and no room for mistake. This method has already liberated thousands of students, professionals, engineers, lawyers, and doctors from the shackles of the debit/credit confusion. WQ In the context of the bar exams, since there are only 20 main questions, the examiner has only 20 concepts to dwell on. Therefore, the probative value of each question must be commensurate to the importance of each question within the context of the lifetime career of the candidate. Each of the 20 questions has the potential to create or destroy a mans life. Many candidates write in their booklets, Please let me die a lawyer. Thats how important the bar is to them. As such, the examiner should also realize such importance. This he can do so by avoiding the Wasted Question (WQ).

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What is WQ? Anybody under the influence of the KW philosophy will never ever think of giving a WQ in the bar. Why? Because these questions do not pass the understanding clause of the KW philosophy. Again, this emphasizes the fact that those examiners who have not adopted any integrating philosophy in the construction of the bar questions are the most oppressive and most unpredictable element of the bar exams. A WQ is a waste in opportunity. An examiner has only twenty chances to test not only the knowledge but also the understanding of the candidate, yet, he wastes one of them by asking a question that does not meet the KW philosophy. Examples of WQ are: 1991 Bar: Discuss any five of the following and explain each, using examples: a) Reprisal b) Retorsion c) Declaratory Theory of Recognition Principle d) Recognition of Belligerency e) Continental Shelf f: Exequatur g) Principle of Double Criminality h) Protective Personality i) Innocent Passage j) Jus cogens in International Law 1996 Bar: Define Securities. 1991 Bar: What is the foundation of the agrarian reform program under the 1987 Constitution? Who are the direct beneficiaries of the program? To summarize, under the KW philosophy, each question should test both the knowledge and understanding of the candidate, otherwise it will be a wasted question. SQ Given only 20 main questions, one of the methods of implementing the KW philosophy is Single Question (SQ). The SQ implementation is very simple. You are the examiner and the candidate is before you in person. If you are allowed only a single question regarding the topic of appeals, and given the condition that if he can answer it, he instantly becomes a lawyer, right there and then, what would it be? That is the SQ. If there are 20 major topics in civil law, then the examiner should construct an SQ on each of those topics. Since there are 50 questions to be prepared, then the examiner can create two SQs per major topic. If the SQ is implemented for each major topic in the bar coverage, then you can be assured that the quality of the question is excellent, and that the SQ will not be a WQ. DQ

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In the foregoing analysis, I was actually establishing the predicate for one ultimate concept in test construction which Im introducing for the first time. The Street Strategists ultimate concept in Kennen und Wissen philosophy is the Discriminant Question (DQ). First, recall that we have excluded WQ because Wasted Questions are an anathema to the KW philosophy. Second, we have emphasized that all bar problems should be an SQ. Now, we will discuss the DQ. What is the Discriminant Question (DQ)? In statistics, there is a branch called Discriminant Analysis. It is a statistical method used to place an item that could belong to any of two or more sets of variables in the correct set, with a minimal probability of error. In other words, if you have a person who could either be lawyer (set A) or nonlawyer (set B), where would you place him with minimal error in making that decision? I will adopt this concept of Discriminant Analysis from statistics to the legal profession. Well, at least, you couldnt fault me for not trying all tricks in the book, including statistics, to justify that the Street Strategist will make a good bar examiner. The bar is about basic knowledge of the law, not a test of narrow specialization based on exceptions to the exceptions. The bar is also about analysis, not memory work. And the bar should be about selecting a new lawyer from a non-lawyer. Under the KW philosophy, virtually all objective-type of questions are ruled out. This is the reason it was so easy for me to disagree with the new Supreme Court guidelines; right there and then. I recognized the guidelines as anti-KW. This is the reason one must adopt his own philosophy so as to instantly recognize situations, and then one can instantly provide his comments on the issue; thinking one ones feet. Confusing definition Going back, what is a DQ? Lets answer this in a roundabout way because if I told you the answer, youll be confused instantly. Suppose, you have formulated one question. Two candidates answer this same particular question correctly. Note, that I emphasized that their answers are both correct. Based on their answers to your single question, it is possible for you to discriminate whether one candidate is of lawyer quality while the other is not? In other words, is your question able to discriminate one from the other assuming they both gave the same correct answer?

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Right now, you are confused, arent you? This is the reason I said Im going to explain DQ in a roundabout way. And this is also the reason why only a few bar examiners would ever think of a question in terms of being a DQ or not. But dont worry, once you will understand what is a DQ, then you will realize that all bar questions should be DQ. DQ illustrated 1984 Bar: Who are citizens of the Philippines? Given this question, two persons, Gauss and Dylan, were able to give the correct answer. The third person, Fourier, failed. Now focus your attention on the two correct candidates. We will focus on the third person later. Between Gauss and Dylan, both having given the correct answer, which of them is a better candidate for admission into the bar? Who deserves to be a new lawyer? But then, thats a crazy question, right? Who would ever think of a question like that? Of course, both of them having given the same correct answer, in fact, in toto, from the Constitution, have the same equal rank and deserve to be admitted to the bar. Under the equal protection clause of the Constitution, both candidates, having given the same correct answer deserve to become new lawyers. In other words, we should not discriminate Gauss from Dylan. Both of them have the same score. By the way, discrimination is actually allowed under the Constitution but such discrimination must have a legal basis such as laws applicable only to women or children. Anyway, going back to the bar problem, we have no criterion for discriminating one from the other because they have give the same correct answer. We cannot discriminate between Gauss and Dylan. Indeed, why did this concept of discriminating one from the other enter into our minds in the first place? Crazy. Before, I proceed any further, I would like you to carefully understand the above logic because it is very important in context with what I have to say next. It must be crystal clear in your mind: We cannot discriminate one candidate from the other if they answered the same correct answer. Understood? Perfectly clear? Crystal clear? In fact, the candidates names are not found in their answer booklets, therefore, the only sole basis by the examiner for discriminating between the two candidates are their answers. Same answer, same score, same qualification; both new lawyers. Discriminant

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Now listen very carefully. Actually, Gauss is a law school graduate. On the other hand, Dylan is actually only a brilliant high school graduate who had studied the Constitution in school and memorized the entire Constitution. I will throw the question at you once more: Which between Gauss and Dylan is better suited to become a lawyer? Given this additional information as to their backgrounds, your answer changes, right? The answer is now Gauss. You are now in favor of Gauss. You are now convinced that Gauss is better suited because he has a law degree while Dylan only has a high-school degree. But the problem is that based on the answer booklet alone, and based on their perfect replies, you couldnt have discriminated one from the other. In other words, there was a failure in the selection or discrimination of the candidates. Where is the fault? The fault, my dear Brutus, is not in the candidates but in the examiners. The examiner did not construct a question that could discriminate one from the other. The question is not a Discriminant Question. If a question is not discriminant, it provides zero insight into the quality of the candidate. DQ defined Therefore, a DQ is one that when answered correctly by a candidate, the bar examiner will be able to discriminate him, conclusively, from other ordinary mortals, and that the candidate is qualified to practice the profession, but not the business, of law. Thus, with the advent of the DQ, we again eliminate almost entirely any possibility of enumeration or definition questions. Given the same concept of testing the candidates knowledge how should the question be reconstructed? Here a thought: Reconstructed: In 2005, war broke out between China and the Philippines over the Yamashita gold. China occupied Philippines and overpowered the latters weak military defenses. But the USA came to the rescue and soon evicted China out of the Philippines. After the war, Harry, a Filipino citizen, was accused of aiding and abetting China, an enemy during the war. He was accused of treason, as well. In his defense, Harry claimed that during the war, he renounced his Filipino citizenship and became a citizen of China, therefore he could not be accused of aiding and abetting the enemy, or for treason, because he was not a Filipino citizen when he committed said acts. Decide.

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Now, this problem is a DQ. No high school student could answer that. The candidate will probably use the doctrines in Laurel vs. Misa and People vs Manayo in his answer. By the way, remember the third person, Fourier? The reason he failed is that when asked who are citizens of the Philippines, he wrote: There are 80 million citizens of the Philippines, and I cannot possibly name them all. This question is preposterous. Conclusion In this series, we started out with several scattered ideas on the different aspects in the conduct of the bar examinations. Not being an expert, the Street Strategist infused certain insights, that definitely cannot be classified as in-breeding. These ideas are integrated under one philosophy. This philosophy automatically rules out certain types of question formats and automatically induces certain approaches to test construction. Among the operational implementation of KW are the WQ, SQ, and DQ implementations. By adopting the KW philosophy, we eliminated many undesirable and ambiguous test constructions and their tyrannical effects. At the same time we reinforced and accentuated the analytical aspect of the bar examinations by emphasizing that any question must meet both the knowledge clause and the understanding clause of the KW philosophy. To learn is to know and to understand. Did the Street Strategist invent something new? Not exactly. What I did was to summarize all the problems. Then I attempted to eliminate them. Then I summarized all the positives and reinforced them by adopting KW and DQ. I did not change things. I changed the way we think about these things. We subjugated and integrated them under one concept, doctrine and strategy. I changed the perspective. You may say, its all the same and that I said nothing new. Yet, it is no longer the same. By integrating them, we have achieved a sense of direction, vision, mission, and strategy. Our ideas are clearer because we have an integrated conceptual approach. In the process, not only did we attack the bar examinations but all other examinations as well, inside and outside the classroom. We saw the importance of analysis over memory work. In real practice, you can open books for the enumerations but you cannot fake your talent for analysis. Remember that dog and tower problem? Thats an example of an open-book, open-time problem. I received more than a hundred solutions from engineers, professors, and executives. Yet, out of the many responses, only one of them had the correct insight. Its not as simple as it seems.

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Going back, we changed our perspective with respect to the bar. The Street Strategist did this by seeing what everybody else and thinking what nobody else has thought. He did not allow his lack of expertise on the subject matter to dissuade him from formulating his own ideas whether right or wrong. We all have the ideas but in separate, isolated, vessels. By providing my own insights into the bar exams, I hope that the overall wisdom with respect to the bar is increased positively. With my ideas, your ideas, and their ideas, we can integrate them as a better whole than scattered fragments. Thats what I do generalization and integration. I can integrate the parts and make them whole. Only this time, in sum, the whole is greater than the sum of its parts because of the Street Strategists generalization and integration. And this ability to integrate is the wisdom and the justification of the portrait of Street Strategist as bar examiner.

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