Ann Althouse seems surprised that Jeffrey Toobin is a moron about law; I am not surprised *UPDATED*

220px-Jeffrey_toobin_2012Jeffrey Toobin shot to national fame during the OJ trial, when he broke the story about the “race card.”  For New Yorker readers, he speaks ex cathedra on all legal issues.  For people who pay attention to the law, he’s a nincompoop.  Ann Althouse just caught Toobin in a major error about the Hobby Lobby case.  He was able to side firmly with the Obama administration only by ignoring the Religious Freedom Restoration Act, which serves as the basis for the plaintiffs’ claim.

I was not surprised.  Back in 2007, I wrote about another embarrassing Toobin article purporting to explain the law to New Yorker readers.  Since that post was on my old blog site, I’ll reprint it here and now:

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Today’s entry on the long list of media dishonesty is Jeffrey Toobin’s article about the current United States Supreme Court, an article given pride of place as the first entry in the New Yorker‘s “The Talk of the Town.”

The article, which ends with a reminder to New Yorker readers to keep the Supreme Court in mind when they cast their votes in November 2008, manifestly intends to scare people into believing that a new Dark Age, led by Catholic men in dark robes, is dawning. Sadly for Toobin’s authorial honor, and unfortunately for his credulous liberal readers, the only way he can do this is to lie, both by implication and, I’m sorry to say, by an outright falsehood.

Toobin confines his little attack on the Court to three decisions that came out under Chief Justice Roberts aegis. As to one of those cases, involving a death sentence, I have no information and, since it’s in criminal law, I have no desire to educate myself about the case’s ins and outs. As to the other two, however, because I’m familiar both with the cases and with the type of jurisprudence at issue, I do feel capable to comment.

The first case Toobin goes after is Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S.Ct. 2162 (2007). This following paragraph constitutes Toobin’s entire discussion of the case and its outcome:

Moving with great swiftness, by the stately standards of the Court, Roberts, Alito, and their allies have already made progress on that agenda. In Alito’s first major opinion as a justice, earlier this year, he sharply restricted the ability of victims of employment discrimination to file lawsuits. The Court said that plaintiffs in such cases must bring their suits within a hundred and eighty days of, say, an unfair raise. But, because it generally takes employees longer than that to establish that they have been cheated, the effect of the ruling will be to foreclose many lawsuits.

What any sensible reader will understand from this terse summary of the case is that the reactionary Supreme Court, lusting after a return to the 19th Century’s golden era of unfettered employer rights, has foreclosed forever the possibility that employees can claim wage discrimination more than 180 days after that discrimination occurs. In the minds of Toobin’s readers, the justices have placed a permanent wall between these hapless employees and legal redress. Except that this understanding, which is really the only reasonable understanding possible based on the limited information Toobin provides, is entirely untrue.

What the Supreme Court said was that a Federal law imposing a 180 day deadline within which to file a wage discrimination begins to run on the date the employer makes the decision to discriminate, not on the date the employer cuts the last paycheck reflecting that discriminatory decision. That’s all.

Here’s the applicable law as summarized in Ledbetter:

Title VII of the Civil Rights Act of 1964 makes it an “unlawful employment practice” to discriminate “against any individual with respect to his compensation … because of such individual’s … sex.” 42 U.S.C. § 2000e-2(a)(1). An individual wishing to challenge an employment practice under this provision must first file a charge with the EEOC. § 2000e-5(e)(1). Such a charge must be filed within a specified period (either 180 or 300 days, depending on the State) “after the alleged unlawful employment practice occurred,” ibid., and if the employee does not submit a timely EEOC charge, the employee may not challenge that practice in court, § 2000e-5(f)(1).

Ledbetter, 127 S.Ct. at 2166 -2167. In other  words, Congress had mandated that if a person claims that her (or his) gender led her (or his) employer to pay her (or him) a discriminatory salary, then that person has between 180 or 300 days from the discriminatory act to file a claim with the EEOC.

Ms. Ledbetter argued that the legislatively vague phrase “alleged unlawful employment practice” should be understood to refer to her paycheck.  Her interpretation would mean that every single paycheck starts a new cause of action (and, presumably, reaches back to encompass prior paychecks). Her employer contended that the “alleged unlawful employment practice,” if any such act existed, would be the employer’s decision to pay its employee a discriminatory amount, as opposed to the fruit of that decision (i.e., the paycheck). The Supreme Court carefully analyzed myriad prior decisions and concluded that the employer had the better argument.

Speaking personally, I find Alito’s analysis clear and compelling.  As is always the case in the law (or at least mostly the case in the law), one can examine legal precedent and draw different conclusions or find entirely different cases to act as precedent. The dissent, for example, contends that it’s unreasonable to ask people to investigate how their pay ranks against their peers’ pay, and that they should be allowed to wait years, perhaps, before they figure out that they’re getting the short end of the salary stick. By advocating a different standard of responsibility for the employee, the dissent can look to different cases so as to reach a different outcome. And that, from beginning to end, is what Ledbetter is all about.

Knowing what the case is about helps one appreciate what the case is not about: It is not a ruling holding that, henceforth, employees must forever be barred from bringing wage discrimination claims if they don’t figure the problem out within 180 days of their most recent pay raise (or pay raise refusal). The Supreme Court is not making law. It is simply interpreting the law as written in light of case precedent. If the Legislature feels there’s a problem, it can change the law. That last is a singularly important point, since it goes to the heart of the difference between strict constructionists, who limit themselves to interpreting law, and judicial activists, who feel impelled to correct perceived Legislative errors, omissions, and ambiguities.

As I pointed out initially, Toobin’s short, elliptical analysis of the case utterly fails to explain to his readers that the majority was not making a law barring employees forever from complaining about wage discrimination more than 180 days after the fact, but was instead merely interpreting the law as written, leaving the matter open for Legislative change. This serious omission about the impact of a Supreme Court decision forces Toobin’s less informed readers to believe that the Supreme Court has dealt a permanent policy blow to the rights of American workers.

Toobin goes from misleading by omission to out-and-out misrepresentation when he discusses Gonzales v. Carhart, 127 S.Ct. 1610 (2007), the decision upholding Congress’ 2003 Partial Birth Abortion Ban. Here is Toobin’s summary. I’ve highlighted the language that is out-and-out false:

Most notoriously, the Court, for the first time in its history, upheld a categorical ban on an abortion procedure. The case dealt with so-called partial-birth abortion—a procedure performed rarely, often when there are extraordinary risks to the mother, the fetus, or both. But more important than the ruling were the implications of Justice Anthony M. Kennedy’s opinion. The Court all but abandoned the reasoning of Roe v. Wade (and its reaffirmation in the 1992 Casey decision) and adopted instead the assumptions and the rhetoric of the anti-abortion movement. To the Court, it was the partial-birth-abortion procedure, not the risks posed to the women who seek it, that was “laden with the power to devalue human life.” In the most startling passage in the opinion, Kennedy wrote, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Small wonder that Kennedy’s search for such data was unavailing; notwithstanding the claims of the anti-abortion movement, no intellectually respectable support exists for this patronizing notion. The decision to have an abortion is never a simple one, but until this year the Court has said that the women affected, not the state, had the last word.

That last statement is just plain, absolutely, completely wrong.

Contrary to most people’s assumptions about Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that case does not create an unfettered right to abortion. Instead, it established a delicate balancing act over the entire length of the pregnancy between the State’s interests and the woman’s interest in the fetus.  In the first trimester, when the fetus is not viable outside the womb, the balancing favors the woman’s right to choose how she wants to handle her pregnancy. In the second trimester, as the fetus nears viability, the balance begins tipping in the State’s favor. And, in the third trimester, when the fetus is viable, the State’s interests may triumph:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Roe v. Wade, 410 U.S. at 163, 93 S.Ct. at 732.

Because it has never been the law of the land that the woman affected “had the last word,” it is dead wrong when Toobin says that Gonzales marks a stunning reversal of American abortion law. Instead, Gonzales is nothing more than a recycling of principles already articulated in Roe v. Wade. No matter how people may fulminate about Justice Kennedy’s touchy-feely analysis of abortion (a bad writing habit he no doubt picked up from his years in a liberal dominated court), the fact remains that the decision he authored in Gonzales did not take away any rights already granted in Roe v. Wade — a case which more than 30 years ago ensured that, near the end of the pregnancy, the State’s interests, not the woman’s, can be given primacy.

Toobin, of course, is not the only liberal to try to make political capital out of what must be a deliberate mis-reading of Roe v. Wade’s clear language. Immediately after the Supreme Court handed down its decision in Gonzales, Hillary Clinton issued a press release that also positioned the case as something entirely new and horrible:

Washington, DC — “This decision marks a dramatic departure from four decades of Supreme Court rulings that upheld a woman’s right to choose and recognized the importance of women’s health. Today’s decision blatantly defies the Court’s recent decision in 2000 striking down a state partial-birth abortion law because of its failure to provide an exception for the health of the mother. As the Supreme Court recognized in Roe v. Wade in 1973, this issue is complex and highly personal; the rights and lives of women must be taken into account. It is precisely this erosion of our constitutional rights that I warned against when I opposed the nominations of Chief Justice Roberts and Justice Alito.”

That Hillary created rights under Roe v. Wade that never existed in the first place isn’t too surprising. While she may be trained as a lawyer, she is first and foremost a politician, and one who has shown a willingness to do and say whatever it takes to obtain a political advantage.

That Toobin did the same thing is more disturbing. Toobin is not only a lawyer, he is a journalist who specializes in legal matters. His readers believe that he is using his legal knowledge and narrative fluidity to explain to them accurately legal matters that, while they may not be intelligible to the average person, nevertheless have immediate and significant impact on ordinary peoples’ lives. Toobin has taken this trust and used it to perpetuate lies. I’d cry “shame” but I suspect that, as to Toobin, that concept, whatever role it may once have had in his life, no longer exists.

UPDATE:  Earl Aagaard reminds me that, while Roe v. Wade refutes Toobin’s statement, it was illusory in its effect:

“…Roe v. Wade…does not create an unfettered right to abortion. Instead, it established a delicate balancing act over the entire length of the pregnancy between the State’s interests and the woman’s interest in the fetus. ”

This is true, Bookworm…..but your post ignored the fact of Doe v. Bolton, issued the same day as Roe v. Wade.  Doe says that a woman’s decision can be based on her “health”, and interprets health to include “mental health”, meaning that there is NO balance.  A woman has only to say she might be suicidal if she has to carry the baby to term and the decision of the SCOTUS says she must be allowed to abort – through all nine months of pregnancy.

What Roe gave, Doe took away, and our country has FAR less restrictive abortion laws than Europe….ever since 1973.

Harry Reid’s nuclear option is a red herring — but the effects will still be profound

Mitch McConnell is too often a GOP stalwart (as opposed to a conservative) for my taste, but when he’s good, he’s very, very good.  He was very, very good this morning, as he attacked Harry Reid’s attempt to change Senate rules so that only 51 votes are needed to get judges onto federal benches (except for the Supreme Court):

Even though Harry Reid’s nuclear option is a red herring meant to distract from Obamacare’s many and varied failings, it’s still an enormously consequential thing. I know all about ideologically packed courts, having practiced in the Bay Area for my entire legal career, and I can tell you that blind justice is never seen in those halls.

As with everything else the Left touches, law is not about applying settled, reliable principles to known facts.  Instead, on the civil side, it becomes purely redistributive. I cannot tell you the number of cases I’ve handled that saw the judge rule against my corporate client, even while admitting that my client had the better legal case. Nor can I count how many times judges have engaged in obscene intellectual contortions to ensure a redistributive outcome. I’ve even worked on a few cases in which appellate court justices have out-and-out lied about the facts in order to achieve a specific end — and then they’ve published those cases, making them case precedent in California.

A court that owes its fealty to a political ideology, rather than to applying settled law to undisputed facts, is an inherently corrupt institution. That corruption spreads far beyond the parties standing in the courtroom. Take just one example:  I worked on a case where a woman defaulted on loan. The bank sued. The woman’s defense was that she hadn’t read the loan documents. Settled law going back to forever says that the failure to read documents is not a defense to a default. The far Left judge felt differently. On the one hand, he had a mean bank; on the other hand, he had a poor little old lady. You can guess the outcome. You can also guess that, in future, the bank increased the cost of loans to offset bad debts such as this one.  You can also bet that the little old lady went home and let her community know that defaulting on a loan in San Francisco county was a reasonably safe thing to do.

The problems with an ideologically corrupt judiciary don’t flow solely from the lessons people take away as they walk out of the courtroom, even though such lessons resonate throughout the community and affect future behavior. There’s an even more insidious problem with a system in which the judge’s pick winners and losers based, not upon facts or law, but upon their place in their hierarchy of Leftist victim-hood.  It’s also the fact that the law is utterly unpredictable if the outcome is dictated by each judge’s personal redistributive biases. Businesses cannot operate in a system that isn’t predictable. They go one of two ways: they become as corrupt as the courts, since lawlessness is contagious; or they retrench, taking their services, products, and investments out of a market that is too unreliable for them to risk.

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And speaking of blasts from the past

Nancy Pelosi, before she drank too deep of the Kook-Aid:

It’s a reminder, of course, that the Democrats don’t have any fixed principles that they routinely apply to all situations.  Their sole, naked goal, is total victory and control.

Hat tip: Sadie

Wendy Davis: typical Harvard Law School grad

To those few of you reading this who are conservatives who managed to survive Harvard Law School, my apologies.  But I have to say, having read this, it’s obvious that Texas’s Wendy Davis is a typical Harvard Law School grad:  thin-skinned, unprincipled, arrogant, anti-constitutional, and ill-informed.  Oh, and judging by her claiming the “pro-Life” mantle for herself, appropriately Orwellian.

I know that there are good Harvard Law grads out there.  I’ve always been willing to say that Harvard Law was still producing decent lawyers as late as 1980.  Ted Cruz proves that intelligent people can still go in there and come out alive.

But in my experience, people like Obama and Wendy Davis are the typical Harvard Law grads of the past 30 or so years:  they’re undoubtedly bright going in, but after three years spent at that august institution, they’re ruined.  To them, law isn’t a matter of justice, it’s a matter of social justice.  They operate off of a sense of wounded ego and identity-based victim-hood.  Principles always give way to expediency.  And they have no professional decorum.  Barring one rather insane guy who went to Hastings, I’ve never dealt with ruder, less honest, more unreliable people across the courtroom, fax machine, telephone, email, or desk than Harvard Law Grads.  They’re like rats.

Yale grads are just as insanely ideological, but they at least acknowledge that the law creates boundaries and that professionalism exists, and they try to operate within those parameters.  Harvard Law grads don’t.

Quite possible the best thing that could happen to American politics would be for Harvard Law to suffer some sort of catastrophic financial loss and close its doors permanently.  It’s a factory for defective people who are given instant admission to America’s halls of power.

An update on the story about the liberal mugged by reality, plus news about shoddy police tactics

I wrote a few days ago about my liberal friend who was shocked by the way the judicial system treated a friend of hers who got arrested for allegedly doing a bad thing.  I have absolutely no idea whether the guy is guilty or innocent.  This post posits all three possibilities.

The guy ended up being charged with 21 counts, many of them duplicative, and all of them carrying very high minimum sentences.  He will almost certainly plea bargain.

If he’s guilty, a plea may be a good deal for him.

If he did what he is alleged to have done, but there are extenuating circumstances, that’s irrelevant in terms of deciding the risk of going to trial.  The moment a jury concludes that he committed the acts, he’s done for.  So again, a plea bargain is the way to go.

And then there’s the question of whether he’s innocent.  By charging him with 21 acts, the prosecutor, by bringing 21 counts against him, has already sent a signal to the jury that this is a “bad” man.  The legal presumption may be innocent until proven guilty, but a jury will almost certainly think “Boy, that’s a lot of smoke.  How about if we just convict him on one of the charges?”  The jurors won’t know, of course, that just one of those charges can mean decades in jail.  So again, the best bet for the guy is to plead out.

So think about that for a moment — we have created a judicial system where a person, whether guilty, innocent, or with a good excuse, begs to go to jail rather than to face the stacked deck in court.

But there’s more to it than that: This system encourages lousy police work, because the police know that they probably won’t be called upon to answer for it before a judge and jury.  Police are rational and they are overworked.  Even the best and most decent of them will eventually fall down the slippery slope of dangerously careless policing.

Did I say dangerous?  I meant it.  Please read this post by my friend Mike McDaniel (whose home blog is Stately McDaniel Manor).  It describes the terrible outcome of the kind of shoddy police work that our judicial system actively encourages.

I hate getting stuck in the middle of things

I had a less than pleasant experience today, which reminds me why I don’t really want to do legal work anymore.  Briefly, last week I submitted a draft document to two lawyers with whom I work.  The brief itself had to be filed today.  I finally heard back from one of the lawyers yesterday, telling me he loved what I’d done, but had substantially rewritten it, and could I please edit it and put it to bed.  I said yes.  I got it in pieces between 6 and 9 last night, which intersected with family stuff.  The revised brief bore little relationship to my final product.

I did edit it for a couple of hours last night, and then began again very, very early this morning.  Barring a 45 minute exercise break, I kept at it from 6 a.m. to noon.  Although it was mostly new to me, I figured that was fine.  Mine is not the name on the pleading.  If people want me to be an editor, I will be.  I assumed, of course, that the two attorneys with whom I’d originally spoken had collaborated on the brief’s new direction.

Because it was too long, it took me forever to winnow it down.  That mostly involved my converting passive-voice sentences into active-voice sentences, a surprisingly time-consuming activity.  I filled in missing legal cites, straightened out confusing arguments, and tried to figure out if peculiar paragraphs were formatting or thinking errors.  Then I did the table of authorities (another slow activity) and the table of contents.  I got it back to the attorney by the skin of my teeth time-wise.  I knew it wasn’t great, but it’s better to file a brief with typos than not to file a brief at all.

An hour later, I got a call, not from the attorney who rewrote my draft (I’ll call him Attorney 1), but from the other guy (Attorney 2, naturally).  Attorney 2 expressed surprise at (a) the typos and (b) the brief itself.  He knows my work-product, so he was confused.  I took responsibility for the typos, explaining that I simply hadn’t had the time to give it a final proofreading.  (And as you guys know, even a final proofreading would have left me with a few small errors.)  Mostly, though, Attorney 2 was distressed by the brief’s quality.  I explained what had happened, but felt bad, because I felt that I was blaming Attorney 1. I told Attorney 2 that  I had assumed that both he and Attorney 1 had signed off on the draft I received yesterday.  (Never assume.  When you assume, you make an “ass” of “u” and “me.”)  In any event, there was no time to discuss it with Attorney 1 or 2 and then revamp it.

I should add here that both Attorney 1 and Attorney 2 are the nicest guys.  I enjoy working with them, and wish them both very well.  Their styles are quite different, and Attorney 2′s style is closer to mine, but I don’t have anything bad to say about either of them.  Thinking about it, I think this clash of styles, which goes to fundamental differences in the way both men approach a case, was a significant problem here.

Attorney 2 and I ended the call very nicely. I told him honestly that I appreciated him approaching me directly, rather than brooding and thinking bad things about my work.  He may still have left the call thinking bad things about my work, but at least he was thinking those thoughts about the work for which I was responsible, and not the other stuff.

I’d barely hung up from Attorney 2 when Attorney 1 called.  He was steaming, because Attorney 2 had said “How did the brief end up going out in this form?”  Attorney 1 wanted to share with me how unfairly he and I had been treated by Attorney 2.  All I could think to say is that Attorney 2 is a super nice guy and that, whatever his concerns were, he’d never do anything to undermine us.  I also again took responsibility for those damn typos.

I hate being in the middle of things like that.  I hate knowing things about people and not being able to speak to them honestly.  I hate feeling somewhat culpable, but not very culpable, but worrying that I’m going to get caught up in someone’s back draft.  I hate clashes of egos.  I have a very strong ego about my writing, but I’ll still usually back down, because all lawyers have strong egos about their writing.

Feh!

The awesome majesty of the state’s power — thoughts for Constitution Day

Nobody believes more strongly in defense attorneys than Progressives.  This is ironic, because the whole point of defense counsel is to be a bulwark against Big Government.  I was reminded of this fact when one of my children, out of the blue, wondered how defense attorneys could bear to represent their clients . . . the really bad ones, she hastened to add.

What an excellent question and one, I think, that goes to the heart of a citizen’s relationship to the state.

It all starts with the Fifth and Sixth Amendments to the Bill of Rights:

Fifth:  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

Sixth:  In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.  (Emphasis added.)

These rights are inherent in each citizen.  Being Mirandized doesn’t create the rights; it simply reminds citizens in stressful situations that they have these rights.  Each of these rights has as its purpose protecting the citizen against the awesome majesty and power of the state.  With the Constitution in place, gone are the days of trials by fire or drowning; lengthy imprisonments before a trial; repeated prosecutions; and coerced testimony.  No matter what information we have about a criminal defendant’s conduct outside of the courtroom — no matter that a hundred people saw him stab the knife into someone’s heart — when he stands before the court, the law presumes him innocent and therefore entitled to every right that goes with that innocence.

In this context, a criminal defense attorney stands as the knowledgeable friend of an innocent man who would otherwise have to face alone everything that the state can bring to bear against him: its coercive power against witnesses; its wealth; its resources; its ownership of the judicial system; its familiarity with rules, law, and procedure; and, most importantly, its capacity to imprison or even to kill the person who stands before it.  A criminal court is Big Government made personal.  A criminal defense attorney is an honorable man (or woman) who stands as a necessary bulwark against potential tyranny.  The attorney represents not only his (or her) client, but all citizens.

Progressives are rightfully fanatic about making sure that an accused person has counsel.  At my law school, it was always the left of Left students who went on to become public defenders.  Most of them burned out, of course, because absent the presumptive assumption of innocence, the people defense counsel work with are for the most part not very savory.  Sure, there are the fools, the innocents, the dupes, the careless ones, the one-time, unlucky DUIs, and the victims, but for the most part, criminal defense work entails representing criminals.

Given their fealty to the notion that the government is an extremely dangerous entity, the power of which must always be constrained, it’s quite peculiar that Progressives are so enamored of Big Government.  One would think that they, more than others who don’t routinely think about our justice system, recognize how monumental government is and how dangerous it can be without our zealously reminding it of its limits.

I just have to boast, just a little bit. No, I have to boast a lot. Sorry, guys and gals….

Since work for Mr. Conservative means that I’m finally doing paid political writing most of the day (along with writing about salacious scandals, violent crime, and bizarre deaths), I sometimes feel as if I’m not a lawyer at all.  This past week, though, I got a call from the offices of a very dear friend of mine.  He was a mentor to me when I struck out in business on my own providing support services to other lawyers, and he’s always been a good friend.  I credit rigorous and enjoyable conversations with him as being part of my intellectual journey from the unthinking Left to the very aware Right.  This means that, no matter how busy I am, I will always do whatever I can to help him and his office.

Anyway, I first got a call from an associate in my friend’s office.  The associate told me he was buried under work, and asked if I could please write up an opposition brief for him.  I said yes, even though I knew it would make for some very long days and too short nights.  I got the opposition to him in a timely way, and he got it filed.  He thanked me profusely (which I appreciated), but what I learned later was that he was so pleased with my arguments that he insisted on reading them aloud to another lawyer in the office.

The next call from that office came directly from my dear friend himself. He asked if I could help him with a demurrer that was due  in just two days.  (A demurrer is a motion that says that, on its face, the complaint is so hopelessly flawed that it shouldn’t go any further, but should just be tossed.)  Again, I said yes, although it was a terribly short turnaround and a case about which I knew nothing.  My friend promised to send me a draft, which he did.  The problem was that the draft was something he wrote off the top of his head, and it didn’t make much sense.  It also had lots and lots of blanks, for both law and references to various iterations of the complaint.  (This was the plaintiff’s fourth effort to state an actual case.)

And that’s where the other lawyer, the one who had my work read aloud to him, comes in.  I’ll call him Jim, which is very much not his real name.  When we spoke, Jim promised that he would fill in as many blanks as he could, since he’d already worked on the case and was familiar with the law and the pleadings.  I was grateful.  He sent me the revised draft Thursday afternoon, when I was finished with Mr.C work and could turn my attention to churning out a 15-page demurrer overnight.  His insertions were very helpful, but I still needed to rewrite pretty much the whole darn thing to make it usable.  I didn’t reinvent the wheel, of course.  I used my friend’s ideas and the various citations Jim provided, but it needed all new words.

The next day, Friday, I got up at 5, worked for Mr. Conservative for three hours, and then finished meeting the 12:30 deadline for getting that disorganized 18-page behemoth into a coherent 15-page brief, complete with beautifully formatted tables of contents and authorities.  (I’m a word processor at heart, so I love formatting legal briefs. A well-formatted legal brief is a visual delight).  Had I missed the deadline, the demurrer would not have been filed and that would have been a bad thing.

After the filing, Jim called to thank me.  And thank me he did.  He told me that he hopes one day to be the writer I am.  He said that he was blown away by how good my writing was.  In fact, he said, he spoke to his wife after the other associate had read to Jim what I had written and after Jim had learned that I would then be helping him.  When his wife asked him “Will she really help?”, Jim told her “She’s an incredible writer.”

Jim repeatedly told me that he found it mind-boggling the way I could make complex subjects so understandable, and the knack I had for distilling difficult legal ideas down into ordinary language.  Add to that my word processor skills, and I had hit a grand slam for him.

I am not exaggerating.  I of course told Jim that he was my new best friend forever.  Despite my dream that I really look like Claudia Schiffer, I actually have no ego tied up in my looks.  Indeed, the only thing that I’m genuinely egotistical about is my writing.  Praise that, and I will love you forever.  Jim has definitely established himself in my mind as a brilliant, insightful man with a heart of gold.

Much as I appreciate (really appreciate) Jim’s kind words, he’s not the final arbiter here.  The judge is.  Now it’s a wait and see thing to see (a) whether the judge thinks my brief is as brilliant as Jim did and (b) whether the judge will decide, brilliant brief or not, that the plaintiff has over-stayed his welcome in the judge’s courtroom.  The law is very strongly against kicking out plaintiffs if anything can be pulled out of a complaint, no matter how badly written.  After four tries, though, the judge may say, “Enough!”

Useful advice for any young lawyers reading this blog

When you’re drafting a complaint, the best way to structure your various causes of action. and to make sure you’ve properly alleged all the essential elements for a given claim, is to begin with jury instructions.  Too many attorneys wait until later in the case to deal with the jury instructions, whether they’re defending against a motion for summary judgment or actually going to trial.

For basic causes of action, however, you’ve got to make sure up front, when you first have your client pay several hundred dollars in filing fees and service costs, that you can meet the minimum requirements for whatever it is you have to present to a jury.  If you can’t make that bar, don’t bother to include the cause of action in your complaint.  You still have to convince the jury at trial that your facts are believable, but at least your opponent can’t challenge you on the ground that you didn’t even meet the first hurdle of alleging appropriate facts and injury.

(As you’ve probably guessed, I’m trying to beat back a challenge to a complaint, one that I didn’t draft, that’s got the essential elements, but they’re hidden all over the complaint.  My complaints are mechanical, but they always stand up to preliminary challenges based upon the face of the pleading.)

Tipping point idea: Put a sunset provision on all federal laws

(To win over the electorate, conservatives have to be seen as a party with fresh ideas that benefit all Americans. This is the first in a series of Tipping Point posts, promoting ideas that will appeal to all voters, while becoming signature initiatives for conservatives and Republicans.)

United States Code

Did you know that the Code of Law of the United States (USC), which contains all the operative federal laws affecting your life is around 200,000 pages long and that, if one doesn’t count case annotations, it takes up about 6 feet of shelf space?  And did you know that the Code of Federal Regulations (CFR), which contains all the rules that agencies have enacted in order to apply thid federal law, occupies four times as much shelf space as the USC itself.  In other words, in the absence of a page count, one can be reasonably sure that the CFR far exceeds 800,000 pages.

Code of Federal Regulations

America’s common law has always held that “ignorance of the law is not excuse.”  That’s all well and good, but do you actually know your federal law?  I didn’t think so and, in all seriousness, nobody else does either.  We all know the big laws — don’t murder people, don’t cheat on your taxes, don’t download music without permission — but the devil for everyone is in the details.  The result is that citizens who believe they are law-abiding, may suddenly find themselves on the receiving end of a federal investigation.

The previous sentence implies that federal employees do know all this law.  They don’t.  They are reasonably conversant with the law in their area of expertise, and therefore do have that advantage over the ordinary citizen who cannot hire 24/7 legal counsel.  Otherwise, no, they don’t know it any better than you do.

What actually happens at the federal level is that a person or business comes to the government’s attention because of citizen complaints, political vendettas, or because the person or business is engaging in a specifically identifiable, but hard-to-prosecute illegal activity.  When that happens, the government looks at the person’s or business’s activities and then, through legal research, tries to see if those activities match anything prohibited under the federal laws and rules.

Al Capone at Alcatraz

Sometimes, this random approach to federal law is a good thing.  For example, back in the 1920s everyone knew that Al Capone was a mobster responsible for all manner of crimes.  The problem was that he was too wily for law enforcement, and they could never make any charges stick.  Some bright person in the federal government suddenly realized that, if the mountain won’t come to Mohamed, Mohamed must go to the mountain — and to that end, rather than trying to mesh Capone’s violent and offensive actions with some criminal law, decided to bring the tax code to Capone.

Capone was duly prosecuted for tax violations, and went to Alcatraz for seven years.  Although this wasn’t a long sentence, considering his terrible crimes, it was long enough that, by the time he came out, his rivals had taken over his criminal syndicate, leaving him with nothing but mental decline from the syphilis he acquired during his glory days.

Certainly we can celebrate laws that bring dangerous criminals to heel.  As often as not, though, the labyrinth of federal laws operates, not to haul in wily criminals but, instead, to trap the unwary.

Buried in paperwork

In addition to keeping a sword of Damocles over every citizen’s head, the plethora of unknown and unknowable federal laws has two profound effects on American society as a whole:  The first effect is that American’s are unable to rely on their legal system when they conduct their every-day activities.  The law, instead of being a reliable framework that allows people to plan for a stable, legal, and profitable future, instead becomes an arbitrary and capricious force, stifling economic activity.

If it will cost me hundreds of thousands of dollars to assemble the legislative information necessary to start a new business that won’t potentially land me in jail, I might decide that no business is worth that kind of start-up cost.  Nor is starting up a new business worth the risk that if, despite knowing the the laws that affect my business, I can still be undone by other areas of legislation and regulation that seem to touch upon my activities only marginally.

Struggling with paperwork

The second effect of laws and regulations that run into the millions of pages is that people lose their respect for the law.  Law should be seen as both the infrastructure for a stable, civil society and the lubricant that enables people to rub along next to each other without resorting to violence.  These basic functions only work, however, if people are capable of knowing the law.

What has happened in America, though, is that federal law has become an impenetrable maze that allows loopholes by the thousand for those rich enough or well-connected enough to exploit all those openings.  At the same time, federal law has becoming a meaningless background buzz for the ordinary citizen, who suddenly becomes aware of it only if he or she is unlucky enough to get trapped by one of its random, unknowable prohibitions or mandates.

What’s really tragic is that so many of these laws and regulations are useless or outdated.  To the extent that they have no current purpose, they exist only as traps for the unwary.  Until the trap is sprung, no one cares about these superfluous laws and rules and, if the trap springs in the government’s favor, the government has no incentive to purge them from the books.

Presidential candidates periodically announce that they’re going to trim back the CFR (I recall Al Gore getting this task in the 1990s), but it’s a boring job, so it never comes to anything — and meanwhile, Congress just keeps passing more and more laws, and the agencies enact more and more regulations.

Sunset

That’s where the idea of a Constitutional Amendment inserting a sunset provision in all federal laws (and their accompanying regulations) comes into play.  The Sunset Amendment would mandate that all federal law and their accompanying regulations automatically expire twenty years (or some other set time) after they go into effect.  The only way to preserve the laws and regulations would be for Congress to act affirmatively to vote on each law and reinstate it before it expires.

Three things should happen:  First, legislators will think twice about enacting laws that they’ll have to review again (and fight about again) in twenty years time.  Second, legislators will take more care writing the laws, since they and their aides will be tasked with wading through them and learning about their effects, along with working on current matters.  (Imagine if a Sunset Amendment had been in place when Obama’s Congress enacted all 2000+ pages of ObamaCare.)  Third, rather than undertaking the tedious work of reviewing patently irrelevant, obsolete, or failed laws, Congress will simply allow them to lapse without any discussion.

Of course, a Sunset Amendment would have to include a clause dealing with those laws and rules that are already on the books.  A practical approach would be to require that a specific number or percentage of laws and regulations would have to be reviewed and, if necessary, re-voted every year after the Amendment’s passage, for a set number of years, until each existing law and regulation has been voted upon or been allowed to expire.

Although cleaning up Federal laws and regulations is an issue that all Americans should embrace, and a burden that legislators should willingly shoulder as part of their job (not to mention a reasonable amount of work considering their salaries and pensions), it especially behooves Republicans and other conservatives to push for a Sunset Amendment.  The whole notion of “smaller government” makes sense only if we clean up old laws, in addition to enacting fewer, and less onerous new laws — and then we make sure that the law books don’t get cluttered up all over again.

If you think this is a good “sticky” issue to help Americans reach a tipping point that turns them towards smaller government, please take this idea and run with it:  talk about it on Facebook or Twitter; post it at your blogs (feel free to reprint this whole post, although I’d appreciate attribution); contact your Senators or Congressman; and bandy it about at the water cooler.  Good ideas make a difference only if people spread them around and then act upon them.

(Thanks again to Mike Devx for coming up with this good idea.)

 

More thoughts on robots and the future

Robot

I wrote last week about the fact that the lapdog media is finally catching up with Obama’s claim that the problem with America’s economy is that ATMs are job destroyers, and that’s why our economy is a mess.  Many of you commented that, in your own industries, you’ve seen automation chip away at jobs so that a handful of people are doing what it once took dozens or even hundreds of people to do.  I agree completely.  Technology definitely destroys jobs.

What I was trying to say, though, is something different.  What’s unique about this ongoing recession/depression, is that the government has been working overtime to depress the new jobs that usually arise as a result of technology.  Absent government intervention, our transitions in the wake of a major technological change have usually been beneficial to the majority, even though there’s no doubt that a minority saw itself lost to history’s backwash.  For the first time, though, we’ve got a government so busy grieving for the minority who are becoming obsolete, that it’s enacted policies to ensure that the majority will suffer too.

I speak quite personally about this, because I’m a perfect example of someone who took modern technologies and spun off a new career.  My new career has been less profitable than my old one, but infinitely more enjoyable, not to mention a better match with parenting.

My graduating year from law school was one of the last years that saw new associates arrive at law firms that didn’t have desktop computers.  We had Word Processing departments, which would use primitive word processing machines (who else remembers old Wang systems?) to finalize briefs or, if they were particularly sophisticated, they had primitive software to do the same task.  To get a brief done, the attorney would hand write or dictate a brief, and then walk it over to a secretary, who would transcribe it.  It was a very time-consuming process.

Law books

Legal research was also done the old-fashioned way, which meant surrounding oneself with heavy books.  To research a legal question, you’d go to the Westlaw Digests.  You’d start by perusing the Decennial Digests (massive volumes that broke the law down into categories).  These were good, because you could do ten years worth of research in a single category.  If it had been nine years since the last Decennial Digest, though, you’d then have to go through nine years worth of annual digests, including the pocket updates stuffed in the back.  Once you had hand written a long list of potential cases, you’d head for the stacks and pull out volume after volume of case reporter.  You’d page through to your cases, and hope that at least some of them were on point.  Once you found them, you’d either write notes by hand, or you’d spend hours (and dollars) photocopying.

Both Westlaw and Nexis did have computer research available, but it had to be done on dedicated machines and it cost a small fortune.  It was much cheaper to pay an associate to do fifty or even one hundred hours of research, than to go onto Westlaw and spend a couple of hours writing and printing.  (Keep in mind that, back in those days, all connections were dial-up and were incredibly slow.)

Old desktop computers

Within a few years of my starting to practice law, the world turned upside down.  Lawyers got desktops and dedicated word processors became obsolete.  That’s when I fell in love with Word Perfect, which is still my favorite word processing software because you have the best control over the look of the final product.

In the beginning, those desktop computers were stand-alones, so you still had to walk to your secretary’s desk, only this time you’d hand over a floppy, rather than a sheaf of yellow paper or a little tape recording.  Just a year or so later, with the firm’s four walls, those floppies were obsolete, as the firms had become networked.  Suddenly, you didn’t even need to stand up to send your secretary that pleading that needed to be finalized.  Instead, you just pushed a button.

Online legal research continued to be expensive, but Lexis and Westlaw now had software that enabled you to use your laptop to connect directly to those services.  This was another technological advance that meant you didn’t need to get up from your chair.  (Right now, I’m seeing, not only a technological trend, but a trend in lawyers getting flabby and gaining weight!)

Woman at computer

One day, I sat at my desk and realized that I was totally self-sufficient. I didn’t need a secretary, since I’ve always been a better typist and word processor than any secretary I ever had, and I didn’t need access to a law library, since my desktop had become a law library.  I also realized that home computer prices were dropping and that the case-reporting services were dropping their prices in response to the increased competition that accompanied increased demand.  Since I hated going to court, and loved doing research and writing, I quit my job and set up a home practice.

Floppies

As the years went by, having a home office became easier and easier.  In the old days, I still had to put my documents on floppies, or print them up, and then hand-deliver them to my clients.  Within a short time, however, either my clients got email, so I could just send an attachment, or they upgraded their network services so that I could connect from home and simply upload my work onto their systems.

The new systems made hoards of young lawyers unnecessary.  While it had once been cheaper to give a second or third year associate a fifty hour research job, it was now much cheaper to contract the work out to me.  With my on-line research, home computer and printer, and network or email connections, I was not only faster and better than a young associate, I didn’t force the firm to carry me during the dead times, nor did it have to pay any benefits to me.  Technology would have destroyed my old job, but instead it created a new job for me, and one that I liked much better.

In the Obama economy, though, I have no work.  If I were a young lawyer done out of a job by new research and writing technology, it would be impossible for me to set up my own thriving business (and it did thrive for many years), because there is no work to be had for anyone, whether in a firm or outside of it.  The old jobs are dying, but the economy is too regulated, taxed, and constrained to create new niches.

And that’s what I meant when I said only Progressives believe that robots are job killers.  Their belief is true only to the extent they’ve made it so.  I fervently believe that, in the normal, non-Obama world, even as technology kills many jobs, a free market, coupled with human initiative, can create many more (better ones too).

Both mandatory unions and mandatory professional organizations are antithetical to Constitutional Free Speech *UPDATED*

California Bar Seal

The State Bar of California, which I have to pay into in order to practice law in the State of California, long-ago abandoned its core responsibility of ensuring that people who hold themselves out as lawyers to California citizens are at least minimally qualified.  As with all these mandatory organizations, it’s turned into a political advocacy group and, again in sync with all these mandatory organizations, it advocates Left. That is, it forces me to pay money if I want to have a livelihood in my chosen profession, and spends that money on heavily politicized issues such as abortion.  (It hews so far Left that, even when I was a Democrat, I was offended by many of the political stands it took with my money.)

The State Bar isn’t the only professional organization that leans Left.  The American Bar Association is heavily political too in a Leftist kind of way. The difference between the ABA and the State Bar, though, is that the form is a voluntary organization. I was therefore able to cancel my membership when I realized that my money was being used to support political causes that were unrelated to law and with which I disagreed.  Sadly, I can’t opt out of the State Bar — not if I want to be a practicing lawyer, that is.

Looked at this way, I have the same lack of rights as union members who don’t live in in right-to-work states. Here’s the deal: if unions and bar associations limited themselves to their original function, which was to ensure that union workers have good conditions or that lawyers have reasonable qualifications, union dues and mandated bar memberships would be less of an issue. Unions and Bar associations, however, have drifted far afield from these core responsibilities.  They’ve branched out since the 1970s or so to become political action groups taking far Left stands on just about everything.

When states mandate that workers must join unions or that professionals must join professional associations, the state is effectively coercing citizens into funding speech with which they may disagree. Looked at this way, mandatory participation in activist unions and professional associations is a profound perversion of the First Amendment right to free speech. Free speech doesn’t just include the right to speak freely, it also includes the right to refrain from participating in speech with which one doesn’t agree.

All of this popped into my mind when I received an email from the president of the State Bar of California (emphasis mine):

Begging

By now, you should have already received your State Bar of California fee statement. Statements were sent out on Nov. 30, and many of you may be taking steps now to send your payments before the Feb. 1, 2013 deadline. If you have not yet received your statement, it may be helpful to know that you can sign in to My State Bar Profile to calculate and pay your 2013 fees.

As the president of the State Bar, I would like to take this moment to enlist your help with an important opportunity that you have through your annual dues.

As attorneys, other people’s problems challenge us to do our very best. We straighten out transactions gone awry. We resolve property and commercial disputes. We counsel our clients through criminal proceedings and personal difficulties and help with innumerable other problems that ordinary people have every day.

But there is a new challenge. Sadly, our economy has experienced an almost unprecedented downturn with interest rates at historic lows. It is the Interest on Lawyers’ Trust Account (IOLTA)* revenue that pays for civil legal assistance for indigent people statewide; and it is barely a quarter of what it was in 2008. There is no cushion left as we struggle to close the justice gap – the gap between the legal needs of the poor and the legal help we can provide for them. This is an unprecedented crisis for those we are charged with protecting.

But there is a powerful step each of us can take in seeking a solution to the justice gap. Your tax-deductible donation to the Justice Gap Fund (a component of the statewide Campaign for Justice) will expand access to justice for the millions of Californians with nowhere else to turn. The Justice Gap Fund is the only statewide vehicle to restore critical funding to nearly 100 legal nonprofits that serve our biggest cities as well as the most isolated rural communities.

A gift made at line 10 of your annual dues statement, or online anytime at www.CAforJustice.org, will make a real difference.

Please join me in the Campaign for Justice. Make a life-changing gift to the Justice Gap Fund – it will make a real difference to those who most need our help.

I have to say that my heart strings remain un-tugged.  The Leftist policies of coercive organizations such as the California Bar Association helped lead to a long, deep economic collapse and painfully drawn-out recession.  The Bar, with its speech amplified by coerced dues, managed to out-shout someone like me, who would have had more money if the Bar hadn’t taken it away.  If I could have been left to my own political speech, I might then have been more amenable to contributing to a fund that helps poor people entangled in the political system.  Because the fund is owned and managed by the same group of people who contributed to this mess, however, I’ll hang onto my money until I find more worthy charities.

UPDATE:  You have to check out Michael Ramirez’s perfect editorial cartoon, because it distills to a single picture the whole free speech (or non-free speech) argument I made above.

Congress not only can tax anything that moves, it can tax anything that doesn’t move

The Supreme Court opinion on ObamaCare runs to 193 pages.  It is the size of a book, only more boring than any book anyone would ever want to read — and that is true despite the fact that Ruth Bader Ginsburg, the worst writer on the court, didn’t write it.  I’ve been making a valiant effort to read it, but because I have other things to do with my life, I abandoned the darn thing about one-third of the way through.  For now, bottom line is sufficient.  Per the Supreme Court, ObamaCare imposes a tax on people who refuse to buy a product from a third-party. An example of that includes the Affordable Care Act which forces a penalty on those who do not take part in the newly-appointed health insurance marketplaces. That imposition is consistent with Congress’s power to impose taxes.

Ed Morrissey managed to encapsulate my immediate reaction to this, frankly, bizarre outcome:

It’s an interesting argument, but one that should have Americans worried.  Basically, this is a tax that you have to pay to private companies.  For all of the screaming the Right did over single-payer — and for good, outcome-based reasons — at least the money paid by taxpayers would go directly to government [see update II].  The Supreme Court has signed off on what is, in very practical terms, a tax levied by the insurance industry on Americans simply for existing.  It’s an amazing, and fearsome, decision that really should have both Right and Left horrified.

Nevertheless, this is the law of the land.  We can now look forward to taxes levied by the auto industry for not having bought a new car in the last seven years, the liquor industry for buying too few bottles of wine to maintain your health, and by the agricultural industry for not buying that damned broccoli after all. We might even have Obama attempt to impose a tax for not buying enough contraception; we can call that the Trojan tax.

Taxes have traditionally been levied to enable the government to buy and build things.  This is the first time in history, so far as I know, that a tax is being levied as a penalty against citizens who refuse to buy products from private vendors.  Taxes normally tax activity.  Sure, you pay taxes on a product when you buy a product but those are (a) state taxes, which are a different animal from federal taxes; and (b) taxes on a voluntary transaction.  That’s the important thing.  The transaction is voluntary.  You can opt to sit it out and the government cannot reach you.  Here, though, we are being told that the government can exact an onerous tax for inactivity.

The decision constitutes a radical redefinition of what constitutes a tax.  It is exactly what opponents said it was:  the biggest tax in history and one, moreover, that Americans cannot alter their behavior to avoid.  I am therefore at a loss to figure out why Roberts signed on to this decision, let alone authored it.  It is a staggering constriction on individual freedom.  The closest analogy to this tax is the poll tax of 1380, a tax that saw one of the biggest revolts in medieval British history and one that almost toppled the monarchy.  Poll taxes are flat taxes but, more importantly, they tax someone just for being.

Okay, that’s the bad news and it’s very bad in the long-term.  There are some potential short-term benefits, although they’re only possible, not probable:

Because ObamaCare is a tax, it’s easy to repeal the tax aspects, which leaves the whole thing unfunded.  Still, unfunded doesn’t mean vanished.  All the bits and pieces, the obligations, impositions, panels, etc., live on, unless Congress can gather itself together and formally repeal the whole darn thing.

The other short-term benefit is that it might galvanize those Americans who hate ObamaCare, leading them to vote for Romney.  That’s so not a sure thing, though.  It’s a great victory for Obama, and might finally put the wind at his back.  His signature legislation is a good thing, said the United States Supreme Court.  For many Americans, that might fall into the category of “that’s all she wrote.”  The fat lady has sung.  The opera is over.  It’s time to go back home and get on with your life.  If Roberts had some strange idea that he’d help a Romney election, he was taking a mighty big gamble with the American people, their freedom, and their money.  (Speaking of money, it’s no coincidence that the market plummeted once it received word that Congress not only can tax anything that moves, it can tax anything that doesn’t move.)

I am disheartened, but disheartened is not the same as defeated.  It is now imperative that Republicans take back Congress in its entirety and win the White House.  Jim Carville and others may proclaim the Tea Party dead, but I suspect they’ll see a Zombie Tea Party taking to the streets this summer.

Others blogging:

Kim Priestap

Maggie’s Farm/Bruce Kesler

American Power

The Anchoress and The Anchoress again

The Volokh Conspiracy (was Roberts somehow forced to uphold the law?)

Jay Cost (this may harm Obama more than he thinks in the long run)

Slate (Obama wins battle; Roberts wins war)

Noisy Room

 

Asserting executive privilege shows desperation in the Obama White House

Wow!

Wow!

From a lawyer’s point of view, it’s hard to imagine anything more stupid than for the Obama White House to assert executive privilege as to the Fast and Furious documents.  The subpoenaed documents must have some pretty damning information for the White House to make this move.

More than that, by having asserted the privilege, the lawyer-led White House showed either a profound misunderstanding of the nature of privilege or is conceding that the Fast and Furious scandal — which saw the Justice Department pour thousands of guns into criminal hands in Mexico, resulting in the murders of two American law enforcement officers and untold numbers of Mexican and American civilians — goes all the way up to the White House.

Wow!

If you’re wondering why those two conclusions (either the White House is dumb as a collective post or guilty as sin), here’s a little information about legal “privileges.”  Once a case is in the legal system, the law imposes upon each party a duty to reveal information, provided that the opposing party properly requests that information.  When I’m advising people who are contemplating litigation, I always warn them that filing suit means giving up lots of their privacy.  They’ll be required to turn over vast numbers of documents and to answer intrusive questions, provided that the other side can credibly show that the information sought is reasonably likely to lead to the discovery of admissible evidence.

A typical (and appropriate) discovery request might read “Please produce all communications between you and any realtors other than the defendant regarding the sale of your home at 123 Any Road in Nowhere Town.”  Those “communications” would cover writings, emails, phone messages, etc.  I’ve worked on cases that have involved the production of hundreds of thousands of pages, answers to hundreds of questions, and innumerable live depositions.

There are relationships, however, that the law considers so important it insulates from discovery or testimony any original communications between the parties to those relationships.  The law will not involve itself in trying to ferret out communications between a priest and a penitent, nor will it interfere with the bond between husband and wife.  Likewise, recognizing that an attorney cannot give counsel to a client without full and free communications between the two, the law protects any direct communications between an attorney and his client.

In my years as an attorney, I would have to say that “attorney client privilege” is the privilege I see asserted with the greatest frequency.  What I also see is lawyers who assert it in the hope that no one notices that a lawyer isn’t actually involved in the communication at issue — or, at least, wasn’t involved initially.

The deal is that you cannot shield otherwise unprivileged information by lodging it with your attorney.  For example, if your corporate client has a memo on file that says “I’ve got a great idea for defrauding our competitor,” your client cannot prevent the other side from discovering that document by mailing it to you, the lawyer, with a cover letter saying, “You need to know about this document.”  However, to the extent your client writes you a long letter explaining everything he knows about the case, good and bad, that letter to you is privileged.  In the same way, your response explaining the legal consequences of the events described in the letter is also privileged.

More simply put:  in order to assert any legal privilege, both of the parties covered under the privilege must have participated in the communication and must have exchanged original information that does not exist independent of the privilege.

Because of the way privilege operates, we can understand Obama’s assertion of executive privilege in only three ways.  (1) Obama’s White House was either involved in Fast and Furious, which is bad; (2) or it means that Obama’s White House doesn’t understand the nature of a privilege, which is embarrassing, especially with a lawyer at the helm; (3) or it means that the documents Holder is hiding are so dreadful that Obama’s White House would rather risk looking criminal or stupid than take the risk of allowing Congress and the public to see those documents.

No matter how you look at it, by inserting itself into this struggle between Holder’s Justice Department, on the one hand, and Congress, on the other hand, the White House made an already bad situation look much, much worse.

Just as Obama vows to ignore federal law, the California State Bar vows to ignore state law

In ordinary times, criminals disregard the law.  In the PC Obama era, however, elected officials and state government agencies don’t have much use for the law either.  Take Obama, for example.  Contrary to the original headlines regarding Obama’s newly discovered immigration rights, Obama’s recent announcement regarding illegal immigration isn’t an executive order.  Instead, it’s simply an abandonment of his executive responsibilities, insofar as he has now publicly announced that he refuses to enforce the laws that the legislative branch has passed.  He’s still King Obama, taking the law in his own hands but, instead of making the law, he’s breaking the law.

It turns out that, in Obama’s America, the federal executive branch is not the only government agency that has no use for explicit laws.  In California, the State Bar is vigorously arguing that it doesn’t need no stinkin’ laws either.  Let’s begin this discussion with the law itself.

Under California law (Calif. Bus. & Prof. Code sec. 6068), a licensed attorney is obligated to support both federal and state laws:

It is the duty of an attorney do to all of the following:

(a) To support the Constitution and laws of the United States and of this state.

Attorneys cannot plead ignorance of this requirement, as they must expressly state this obligation as part of the oath of office they take as a prerequisite to becoming fully licensed (Calif. Bus. & Prof. Code sec. 6067):

I solemnly swear that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.

Put simply, California requires that, to practice as an attorney, the licensee must orally and explicitly promise that he or she will to support, not break, either state or federal law.

With this in mind, how in the world can the State Bar of California argue that an illegal immigrant should become a licensed attorney?  Shouldn’t both the Bar’s and the newly licensed attorney’s first obligation be to turn the attorney in for violating explicit federal immigration laws?

An illegal immigrant who passes the bar exam and demonstrates good moral character should be eligible to practice law, the State Bar has declared in a court filing.

The bar, which oversees California’s 225,000 lawyers, told the state Supreme Court on Monday that federal law leaves regulation of the legal profession largely up to the states and does not appear to prohibit Sergio C. Garcia, 35, of Chico from obtaining an attorney’s license.

[snip]

The court cited two federal laws as potential obstacles. One prohibits illegal immigrants from receiving any “state or local public benefit,” including a professional license provided by a “state agency.” The other prohibits employers from knowingly hiring illegal immigrants.

In Monday’s filing, the bar said the first law doesn’t apply because the court is a branch of state government, not a “state agency.” In 1995, the bar noted, the U.S. Supreme Court ruled that federal courts aren’t government agencies.

[snip]

“There is no reason to believe he cannot take the oath and faithfully uphold his duties as an attorney,” the bar said. It said the policy considerations are similar to those the California court addressed in 1972, when it declared unconstitutional a state law requiring attorneys to be U.S. citizens.

It’s pure sophistry to say that the federal laws don’t apply just because the California court system is a self-regulated branch of state government.  This argument ignores entirely the fact that California’s own law, which does indeed govern, imposes upon attorneys the obligation to support the Constitution.  The Constitution, in turn, is the umbrella for federal legislation.  The same sophistry holds true when it comes to comparing legal immigrants, who have not violated any laws on their way into the country, with illegal immigrants, whose very presence is an offense to law.

What’s going on here is open-and-above-board, so it’s we’re not concerned here with ordinary “cash corruption.”  That is, this is not a situation in which a private citizen makes a payment to a government official in return for the latter’s promise to look the other way.

What we have here is worse.  We are witnessing a profound ethical corruption that sees public institutions deliberately flouting their own laws.  This is a dangerous slippery slope.  Once the reliability of law is gone, the only thing left is despotism or anarchy, with the former being the tyranny of an individual or group and the latter being the tyranny of the mob.  When political officials expressly ignore the law, they are no better than ordinary criminals.  What’s being stolen, though, is more valuable than money or jewels.  It’s the essence of our liberty.

 

I finally understand those Harvard Law grads

Throughout my legal career, the Harvard Law grads of my generation and after have bewildered me.  The ones I met practicing in the San Francisco Bay Area, more often than not, were distinguished by two things:  lousy legal skills and strident aggression.  I was pretty sure that this perception on my part wasn’t simply the sour grapes of one who didn’t go to an Ivy League law school.  For example, I’ve always had the highest respect for Yale Law grads, although I think they tend to be almost obsessively detail-oriented.  It really was something about those Harvard grads.

I admit that I met a very narrow spectrum of Harvard grads.  The “white guys” were almost all pre-1984 grads (meaning that they pre-dated me by a lot).  They were stiff and pompous, but they were decent lawyers.  The ones I worked with (and against) were the younger folks.  The only white males were (1) a guy who claimed to be half Native American, although this genetic legacy was not apparent; (2) and the other guy who claimed to be a quarter Native American and who was trilingual.  (He also had a serious drug problem, but that’s a story for another day.)  The rest of the Harvard folks I worked with were female, obvious ethnic minorities (that is, they didn’t have to tell everyone about their unique, non-white ethnic background), or gay.  Or all three of course.  I know Harvard was graduating white males, but they seemed not to be landing in my small circles.

For the most part, the small group of Harvard lawyers that I met were not good lawyers.  They were aggressive, but their research and analysis skills were significantly less good than the same skills I saw in those who graduated from other law schools, be they very famous (Yale or Boalt) or less so (Baylor, Hastings, Santa Clara, etc.).  Since many of the Harvard Law grads were indeed very bright, they buffed up their basic lawyering skills with the years, but none seemed to tone down that bizarre aggression.

Let me stress again that, working in and around San Francisco, I was looking at a self-selected group of Harvard lawyers.  San Francisco, after all, was then, as it is now, a magnet for Leftist political extremists.  I didn’t know the word “Progressive” back then, but I bet they did.  It’s just that, in this world, the Harvard grads were even more Progressive than the others.

David French, who arrived at Harvard Law in the year that Obama left (Obama left in the spring, French arrived in the fall), tells what the environment was like back then.  If that was the same environment that existed during the mid- and late-1980s, it goes a long way to explain those, to me, mysterious Harvard grads.

The problem with patents

We’ve all heard and read about the fact that profiteers are stifling patents.  They buy up patents, not to encourage innovation, but to shake down people who come up with ideas they claim overlap with the patents that they’ve purchased (and that sit, unused, in their faults).  Frugal Dad came up with a charming graphic showing the problem:

patents infographic

Source: http://frugaldad.com

 

A case regarding citizen journalists proves, once again, that bad facts make for bad law

When I first saw the headline — “A $2.5 Million Libel Judgment Brings The Question : Are  Bloggers Journalists?” — I have to admit that I felt a bit queasy.  When I write something snide about President Obama, Harry Reid, Nancy Pelosi, or any of the other prominent Democrats I routinely criticize at this site, am I exposing myself to massive liability?  Well, probably not, because they’re public figures and we have enormous latitude to criticize them.  But what about a post I might write criticizing, not a political figure, but a local businessman.  Can he sue me . . . and win?

The answer, it seems to me, is that Mr. Businessman is just as likely to win against blogger as he would have been if, in the old days, I sent nasty letters to the editor, distributed flyers or otherwise widely and impugned his character.  If my statements are true, I win.  If they’re false, I lose.  I would have been at risk in the old days and I’m still at risk in the new if I choose to shout out lies from an electronic rooftop.

So why is the $2.5 million dollar libel judgment an issue?  Because the blogger in question sought to protect herself by claiming that she was a journalist, not a blogger.  She therefore contended that Shield Laws allowed her to hide her sources while successfully protesting her innocence in a defamation lawsuit.  When the judge said she wasn’t a journalist, bloggers got nervous.  After all, we bloggers consider ourselves a “new media,” providing information that the old media, usually for political reasons, often leaves on the cutting room or newsroom floor.  What’s unnerving is that, if we’re not journalists, even when we scrupulously present facts, we’re still at risk of litigation, something that has a very chilling effect even on the most honest writer.

As is so often true with legal cases, though, the details should be comforting — and this is true despite the fact that I think the judge committed a definitional error that must be redressed.  This case, though, is not going to be the one that makes correcting that legal error easy, because the facts really militate against the blogger.  By any standard, Crystal Cox, the defendant against whom the district court judge imposed the $2.5 million libel judgment, was not making any effort to conduct herself according to journalistic norms.  Instead, Cox was the journalistic equivalent of a vexatious litigant.

For those of you who have missed out on the joys of a vexatious litigant (“VL”), a VL is someone who uses the court system to dominate and harass enemies.  These people are often lawyers, and they will file in pro per suits (meaning that they represent themselves) against anyone who crosses their radar.  Since litigation is expensive, a perfectly innocent person might find himself targeted by a plaintiff who has dozens of cases going simultaneously, and who files hundreds of costly motions in each case.  The unwitting defendant can either settle immediately, even though he knows he’s being subject to judicial blackmail, or he must spend the money to answer the case and respond to all the discovery and motions.

While the judge in any given case may impose sanctions against the plaintiff, that’s an uneven remedy.  Eventually, though, if the plaintiff acquires a reputation around the courthouse, a judge can defang him by declaring him a “vexatious litigant” who can proceed in the Court system only with judicial permission.  Although it’s a draconian remedy because we are loath to deny people access to the civil court system, it’s still a necessary thing to do when someone uses the system, not as an instrument of justice, but as a tool for economic blackmail, humiliation and harassment.  As I noted, though, it’s a last remedy, not a first remedy, and a lot of people get badly burned before it goes into effect.

From everything I’ve read about Crystal Cox, her website, titled “www.ObsidianFinanceSucks.com,” was a one woman vendetta against a corporate Bankruptcy trustee and an individual employee, filled with hundreds of posts savagely attacking both of them.  Her claims against them, usually presented in the form of hyperbolic questions, rather than factual statements, accused them of fraud, illegal activity, theft, and just about everything else short of stealing lollipops from babies and using goats for impure purposes.  As the judge made clear in decisions written in both July and August, one would be hard put to classify Cox’s content as objective journalism.

Because Cox’s posts were so over-the-top, the judge concluded fairly easily that they couldn’t possibly be construed as anything other than pure opinion, which is protected under the First Amendment.  He was therefore inclined to dismiss the case against her.  One of her posts, however, had a gloss of journalistic objectivity and, more importantly, showed up at a site where it wasn’t published under the “ObsidianFinanceSucks” heading and where it wasn’t surrounded by dozens of other posts demonstrating that Cox has a monomania that leaves even her “objective” writing highly suspect.  It was in this context that the judge decided Cox wasn’t a journalist, and that her nasty post constituted good, old-fashioned defamation, akin to handing out a flyer in a shopping mall.

Where I differ with Judge Hernandez, although I think he made the correct decision regarding Cox, is in his effort to define objective journalism so as to deny Cox constitutional protection for her statements.  As far as I can tell, his definition puts most of our major media on notice that it’s at risk:

Cox tried to invoke the Shield Law, which allows journalists to protect confidential sources, but Judge Marco Hernandez ruled Cox was not a journalist and therefore not entitled to the protections. He wrote, “there is no evidence of any education in journalism, any credentials or proof of any affiliation with any recognized news entity or proof of adherence to journalistic standards such as editing, fact-checking or disclosures of conflicts of interest.”

While the New York Times, the WaPo, MSNBC and other traditional media sites can undoubtedly claim that their writers hold university credentials, it’s becoming increasingly questionable whether they subscribe to such traditional “journalistic standards . . . as editing, fact-checking or disclosures of conflicts of interest.”  Indeed, one of the things internet bloggers excel at doing is catching the MSM when it fails to follow those journalistic ethics (and one does wonder whether the MSM’s disdain for these basic requirements is something individual writers learn at those credentialed schools).

Given that the MSM so frequently falls very far short of what the judge considers to be ethical minimums, being affiliated with these “recognized news entities” in no way assures the reader that he can rely on the truth of the matter asserted in any given news report.  A reputable blog spot, one that rigorously edits, fact-checks and discloses, should qualify as journalism, and be entitled to all First Amendment protections, without having to pay lip-service to establishment conventions (journalism school, major media affiliation) that, in fact, do not provide any assurance that the content is honest, credible, complete or unbiased.

Since Cox strikes me as a monomaniac with a bee in her butt, I’m somewhat surprised that Eugene Volokh, who is one of the most reputable, insightful legal bloggers and new media journalists out there, is getting involved in this particular case:

Crystal Cox did not respond to our emails and phone calls seeking comment. It appears, however, she plans to continue to fight. She represented herself in the defamation suit, but now has legal help from UCLA Law School and blogger Eugene Volokh. He has taken the case pro bono in hopes of getting the decision reversed. Volokh has written about the First Amendment’s protection of the press, arguing it’s not solely intended for the media as an institution, but anyone doing the work of journalism.

Volokh is right as a matter of law, of course.   Judge Hernandez is simply wrong to define journalism to include only people who have trained in establishment schools and who write for establishment (i.e., Leftist) media, a bright line that would astonish and offend the Founders.

Based on what I’ve been able to glean from Judge Hernandez’s opinions, however, both of which quote extensively from some of the hundreds of posts Cox wrote for “www.ObsidianFinanceSucks.com”, Cox is the wrong defendant to use as a standard for expanding the definition of journalism to include citizen journalists writing at blogs.  Cox’s writing isn’t coherent, factual reporting, with full disclosure.  Instead, it’s a malevolent stew of opinion and hostility.  She’s a vexatious blogger, and a common law defamer, not a legitimate journalist.  Indeed, she’s a perfect example of bad facts making for bad law.  I’m just worried that, if Volokh pursues this, this bad law will be enshrined at an appellate level, rather than merely at the district court level.

What happens when government (state or federal) is pathologically hostile to business

This post tells the story of a case on which I worked.  It’s a true story.

Picture this: It’s 2001.  You live in California and you own a small business that consists of you and maybe three to five at-will employees.  Your profits are decent.

One morning, Jane, one of your employees, announces that she’s quitting, effective immediately, and stalks out.  You know — or think you know — your California law, which requires that, when an employee quits, you have her payment ready within three days of her departure.  (That would be Calif. Lab. Code § 202.) You therefore immediately prepare Jane’s final paycheck, covering the two hours she worked before she quit.

One day goes by, but no Jane.  Two days, but still no Jane.  On the third day, you actually drive over to her last known address to drop off the check, only to discover it’s a vacant apartment.  You head back to the office, check still in hand.  Jane didn’t ask that you mail the check to her, nor do you have a current address, so for the time being, you just hold on to it.

On the fifth day after quitting, Jane shows up, grabs the paycheck, and again disappears.  You breath a sigh of relief, thinking you’re finally done with Jane.  If only you knew, the story is just beginning….

A month goes by, and you suddenly get a notice from the California Labor Commissioner telling you that Jane is claiming that you violated California law.  Your crime?  You did not get Jane’s final paycheck to her within three days of her quitting.  Since you had the paycheck ready immediately, and her failure to receive it was solely the result of her own unavailability, you laugh at this charge, thinking you’ve got a slam dunk case.

You show up on the assigned day to argue your case before the Labor Commissioner.  The Labor Commissioner announces that the three day rule means the employee must have the money in hand by the end of the third day — regardless of either your efforts to pay her or her lack of effort to receive the money.  To punish you, the Labor Commissioner imposes statutory sanctions (or “waiting time penalties”) against you, and insists that you pay Jane an amount 27 times greater than the wages she was actually owed.

Shocked by the unfairness of it all, you hire an attorney, who tells you that you’re right — you complied with your statutory duty, and the Labor Commissioner erred.  The attorney tells you that this is indeed a slam dunk case, and that you should appeal it, which means filing an original action in Superior Court.  Sounds good to you….

The case goes to trial.  Jane is represented by the Labor Commissioner, so this is a freebie for her — the people of the State of California, through their tax dollars, are paying Jane’s attorneys fees.  The judge appears confused by the issues and eventually announces what he believes is a Solomonic ruling.  He holds that, despite the statute’s clear language — Calif. Labor Code §  202 explicitly imposes on the employer only the burden of having payment ready, not the burden of ensuring that the employee receives payment — you should have gotten the payment directly to Jane.  However (and this is where the Solomon part comes in) the judge will halve the sanctions award against you.

While miffed at the fact that you couldn’t get the judge to agree with you entirely, you still leave the Court with a light heart — after all, you got the original award against you cut by 50%, which must be viewed as a clear victory.  Au contraire, my innocent California employer.

In 2001 — when these events took place — the attorneys fee statute governing appeals from Labor Commissioner awards imposed attorney fees and costs against a party who appeared before the Court and was “unsuccessful in the appeal.”  (That was Calif. Lab. Code § 98.2(c), repealed.)  However, as of 2001, two California decisions had held that this facially-neutral language didn’t really mean what it said.

Instead, said the two cases, what that facially neutral language really meant was that, if an employee appealed a Labor Commissioner award and bettered his position by even a penny, he was deemed successful on the appeal, so that the employer would have to pay the employee’s (or, really, the tax funded Labor Commissioner’s) attorneys fees.  The contrary, however, was not true.  If an employer appealed a Labor Commissioner award and bettered his position by 99.9999%, but not by 100%, he was deemed unsuccessful.  He therefore still got to pay the employee’s (or, rather, the Labor Commissioner’s) attorney fees.

What this meant for Jane’s employer was that, even though she managed to better her position on appeal by 50% — she still lost!  She still got to pay the Labor Commissioner’s attorneys fees at fair market value.

The situation in 2001 was therefore as follows:  No rational employer could take the risk of an appeal from a Labor Commissioner award, since there was a huge chance that the employer, whether entirely or even partially correct, would still end up with a judgment requiring him to pay something, even a nominal something, to the employee.  (Judges hate giving employees nothing.) If that happened on appeal, the employer will be responsible for the oh-so-costly attorneys fees, fees that were usually far in excess of the underlying wage dispute.

And when you stop and think about it, this perverted reading of a facially neutral statute was a green light to the Labor Commissioner to do some nasty stuff.  Begin with the fact that Labor Commissioner employees are generally unsympathetic to employers.  This non-intuitive, twisted, backwards reading of a facially neutral statute gave these employees an incentive to ratchet up sanctions against employers to ridiculous amounts, because the Labor Commissioner employees knew that the employer couldn’t afford an appeal.  Even if the employer prevailed on the appeal by lowering the sanction to a more reasonable amount, the employer would still be impossibly burdened by the Labor Commissioner’s attorneys fees.

Keep in mind, too, that these attorneys fees were a complete windfall for the Labor Commissioner, since Commission attorneys are automatically paid by the State of California for their efforts.  And last I heard, when they receive attorneys fees from some hapless employer, the Labor Commissioners offices are not refunding the taxpaying citizens in that amount.

Bad as the above-described situation sounds, it actually got worse after 2001.  There was a brief, shining moment in 2002/2003 when the California Supreme Court, in a burst of profound rationality, said that courts couldn’t take a facially neutral attorneys fee statute, and read it to impose disproportionate burdens on employers.  (That moment of common sense was brought to you by Smith v. Rae-Venter Law Group (2002) 29 Cal. 4th 345.)  That was too good to last, of course.

Here’s the “got worse” part:  In 2003, the California legislature announced its explicit intention to overturn Smith v. Rae-Venter.  The current version of the fee shifting statute now gouges the employer in no uncertain terms: “If the party seeking review by filing an appeal to the superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney’s fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal. An employee is successful if the court awards an amount greater than zero.”  (See Calif. Lab. Code §  98.2(c).)

There is now no possibility of another Smith v. Rae-Venter decision helping hapless employers.  The Legislature has declare in no uncertain terms that the employer can avoid paying the employee’s attorneys fees (read, “the Labor Commissioner’s fees”) only if the employer walks out of Court owing the employee nothing — and obtaining that outcome, especially in liberal courts in the Bay Area or L.A., is a pretty big risk for any small employer to take.  This means that employers simply have to swallow the cost when a greedy employee manages to get the ear of a Labor Commissioner who believes it’s fine to impose disproportionate sanctions against a hapless employer, so as as that sanction will benefit a “downtrodden” employee.

Why does this sad story matter?  It matters because this little bit of social engineering — unknown to most people — is driving business out of California.  I personally know of at least two businesses that have just packed up and moved to other states precisely to avoid these kind of hidden costs.  Those oh-so-clever judges misinterpreting the law before 2002, and the “compassionate” Legislature enacting unfair laws in 2003, all think their good intentions say it all.  They truly believe they’re insulating poor, downtrodden employees from the risk of attorneys fees.

What they’re not thinking about, though, is the fact that these employees will be even more downtrodden when businesses keep pulling out of California, leaving the State without enough jobs — and the government without enough taxpayers to run itself.

There’s a reason I’m telling this story today:  it’s because the problem I’ve described above is not limited to the state level.  The National Labor Relations Board has held that Boeing cannot build a plant in South Carolina:

In a stunning move well beyond the scope of their legal mandate, the Obama Administration appointee controlled National Labor Relations Board is suing Boeing Corporation for, get this, building a second production line for their new Dreamliner passenger plane in South Carolina rather than in Washington state.

[snip]

South Carolina is a right to work state whose voters this past November overwhelmingly amended their state’s constitution to ensure that a worker has the right to vote on whether they want to be represented by a labor union. The workers at the Boeing plant in South Carolina have also taken the bold step of booting out the union that represented them, effectively ending the International Association of Machinists and Aerospace Workers stranglehold on Boeing production.

Now, Obama’s NLRB is attacking Boeing’s job creation in South Carolina as “union retaliation” directly related to a 2008 labor strike which crippled Boeing’s production in Washington state.

Now that those state governments that are in thrall to unions and labor have made it virtually impossible to do business in State A, the federal government is upping the ante by making it illegal for a business to move to State B.  I’ll reiterate here what I often say:  The Left may call them corporate fat cats or “rich people,” but I call them employers.  When you make it impossible for them to do business, they’re going to leave.  And if you make it impossible to leave, they’re going to die on the vine, leaving both State A and State B without jobs.

Cross-posted at Right Wing News

The Bookworm Turns : A Secret Conservative in Liberal Land,
available in e-format for $4.99 at Amazon or Smashwords.

A society needs minimum standards

A lot of people look at laws that are hard to enforce and say, “let’s get rid of those laws.”  The three major recipients of this line of reasoning are drugs, prostitution and illegal immigration.  People ask, “Why criminalize these inevitable behaviors, especially since criminalizing them draws into the law enforcement net people who seem more like victims than bad actors?”

I happen to think that some behavior needs to be criminalized, because a society has to draw lines defining what its values are.  I won’t touch the drug question in this post, since I think it was well hashed out here in Don Quixote’s earlier post.  However, I would like to talk about prostitution and illegal immigration.  The first issue — whether we’re right to make prostitution illegal — seems to me to reflect two core values.  The first is respect for women.  We as a society refuse to allow women to be treated as pure sexual commodities.

Of course, in reality that principle teeters on the edge of a very slippery slope.  We allow pornography and Vogue Magazine, and sleazy TV shows and sex in movies, all of which arguably fall into the same category of female exploitation.  It’s hard to draw bright lines, because the relationship between men and women is always going to be sexualized.  More than that, women tend to do a lot of parading for each other, not in a sexual way, but in a boastful way.

As a perfect example of this last point, I urge you, if you can, to watch Chris Rock’s Good Hair, which examines the obsession so many black women have with avoiding the genetic legacy of “nappy” hair, opting instead to try to replicate straight, long, Anglo hair.  The link I included above advertises the video as “funny” and, in a way, it is.  Mostly, though, it’s tragic.  It turns out that black women who want Anglo hair have two choices:  dangerous chemicals or staggeringly expensive human hair weaves.  The irony with this Hobson’s choice is that the women’s real audience isn’t men or white people, it’s other black women.  I doubt white people notice black hair much.  (The last time I noticed was in the early 70s, when ‘fros were a political, not a fashion, statement.)  Even worse, the black men to whom Rock spoke hated the weaves:  they hated the time and money spent, and they hated the fact that weaves mean that black women will not allow anyone to touch their hair, nor will they engage in any activities that mess that precious hair.

My point about the black women’s hair is that, as is true with so many sexualized activities, those activities are actually aimed at women.  (Think:  fashion magazines.)  Prostitution, however, creates a direct dynamic between male and female that we, as a moral, Judeo-Christian culture, wish to avoid.  That we are frequently unsuccessful in that effort doesn’t mean we should give up trying.  This is a line — a moral, ethical and social line — that we draw to define who we are and what we value.  It sends a message to the people within our culture.  Those who argue that legalizing prostitution actually protects the prostitutes miss the point:  the whole institution is corrupt.  Legalizing it is a band-aid over a festering wound.  Certainly the British Muslims who turn British women into their sex slaves understand the real dynamic at work.  (Porn, by the way, isn’t much better.)

I can make much the same argument for doing away with the laws governing illegal immigration, all of which focus on the ills resulting from the immigration laws themselves:  (1) Mexicans are nice people; (2) children are the innocent victims of their parents’ illegal acts; (3) we need the labor and its wrong to turn workers into criminals; etc.  Those are all the details.  The bigger principle, however, is that a nation needs to protect its sovereignty, and that includes making decisions about who crosses its borders.  Defending borders is a use-it-or-lose it proposition.  Either you are a nation, or you are a patch of land over which people fight.  I’d prefer the former, as opposed to the anarchy of the latter.  With that overarching principle in mind, I’m willing to accept the challenges of enforcement, and the tragedy of divided families (a tragedy that wouldn’t happen, of course, if the parents hadn’t decided to gamble with their children’s lives).

I’m sorry if this is a bit of a wondering post, but my chaotic day has meant that I’ve been writing these six paragraphs over the last six hours.  I admit that I’m weaving in some random thoughts as they come along, but I’m hoping that y’all get my point — one with which you can agree or disagree.  I just feel relieved that I finally was able to sit down and wrap this thing up!

It’s no fun, being an illegal alien *UPDATED*

Life can be tough when you break the law.  The people who murdered Annie Mae Aquash discovered this fact when they were arrested and tried for murder 35 years after killing Aquash.  Sara Jane Olson, an SLA terrorist during the 1970s, discovered that when her quiet, suburban life in Minnesota was revealed and she spent several years in jail, despite the fact that she had three children.  My sister’s friend discovered this tough rule when he was hauled off to jail after unwittingly having had sex with an underage girl.  (That is, he wasn’t a predator.  Except for the absence of gray hair, the girl looked older than I do.)

Open today’s paper (I don’t care which paper; any paper), and you will read about someone who committed a crime and got hauled off to jail — and that is true whether the crime was old or new, whether the person acted knowingly or unknowingly, and whether the person had children or not.  As to that last, it’s worth noting that our American prisons are crawling with people who have left children outside.

How different is the story when the lawbreaker comes from Latin America, illegally, and drives around the streets of America, illegally.  That person, we are assured, is a law abiding citizen, other than all that illegal activity, and it’s just so unfair that such a person, not to mention his or her children, has to pay the for this illegal activity.  I’m not making up this maudlin outrage.  It comes courtesy of a front page story in today’s New York Times online (complete with illustration of one illegal lady hugging her daughter and, to amp up the emotions, her grown niece too):

It was just another suburban fender-bender. A car zoomed into an intersection and braked too late to stop at a red light. The Georgia woman driving it, an American citizen, left with a wrecked auto, a sore neck and a traffic fine.

But for Felipa Leonor Valencia, the Mexican woman who was driving the Jeep that was hit that day in March, the damage went far beyond a battered bumper. The crash led Ms. Valencia, an illegal immigrant who did not have a valid driver’s license, to 12 days in detention and the start of deportation proceedings — after 17 years of living in Georgia.

Read the rest here.  Depending on your political orientation, come prepared with either a handkerchief or a barf bucket.  The article’s push is to get driver’s licenses for illegal immigrants, because it’s so unfair that they’re currently out on the road, unlicensed, and running the risk that their illegal driving might reveal their illegal status.

This post, obviously, ties in with my earlier post about the DREAM Act which, while it takes into consideration the needs of children raised in this country, totally ignores the fact that it is an open incitement to illegal behavior.

Honestly, if one gets to pick and choose with impunity the laws with which one wishes to comply, why have laws at all?  This, by the way, is a familiar plaint on my part, since I routinely see judges, when ruling on a given case, decide who the underdog is and then proceed to rule in that party’s favor, regardless of the controlling law.

I’ve worked on a lot of those cases, and I’ll concede that my clients aren’t always nice or good, and the person on the other end is sometimes suffering a real hardship.  Having said that, though, on such cases, my client is totally within his rights under the law, and the other person doesn’t have a legal leg to stand on.  I’ll also concede that our common law has always had an “equitable” side that leans towards abstract fairness, but this ancient principle was always meant to flex the letter of the law, not ignore it entirely.

The problem with our modern approach, which views the law as an impediment to justice, is that it leaves us as a society in which there is no rule of law.  Our whole system of statutes and cases is just a pretense, since any given judge does what he or she wants at any given time.

Of course, without a system of laws, one inevitably descends into anarchy.  Laws may sometimes have harsh outcomes, but if they’re reliably enforced, people can actually plan to avoid those outcomes.  In a “legal” system in which the most pathetic person always wins, the only thing people need to do with their lives, whether in the world of contracts or the world of crime, is to plan on being pathetic losers.  You lose — you win!  This is no way to run a functioning, predictable, reliable, successful society.

Cross-posted at Right Wing News

UPDATE: Sadie sent me a link that’s perfectly apropos.

Maybe liberals need a linguist’s help to hide what they’re saying, not to promote it

I found the following paragraph, culled from the San Francisco Chronicle, fascinating (emphasis mine):

From top congressional leaders to online activists, liberals have sought the wisdom of UC Berkeley linguistics Professor George Lakoff for years. They ask him to teach them to do something that conservatives traditionally have done better — frame complex policy into simple, digestible morsels that voters will swallow.

(The rest of the article is about Lakoff’s own contribution to the California ballot, which is interesting, but does not interest me right now.)

There are two thoughts underlying that emphasized language.  The first is that voters can only understand the most simple ideas; and the second is that Machiavellian conservatives (probably because they are themselves simple-minded morons) have figured out how to tap into that vast, stupid national psyche.  The one thing that doesn’t seem to occur to the Chron writer, or to the Democrats themselves, is that conservative ideas might succeed because there is an elegant purity to them, that all can easily grasp without sophisticated salesmanship and translation.

Not all good things need to be complex, at least in their ultimate expression.  The Ten Commandments (although there are actually more than the core ten) are a lovely example of moral clarity in few words.  The ideas are remarkably sophisticated, and were groundbreaking when Moses first announced them in a pagan world, but they are simply written and require little in the way of clarification to appreciate them:

I am the Lord your God, who brought you out of the land of Egypt, out of the house of slavery;

Do not have any other gods before me.

You shall not make for yourself an idol, whether in the form of anything that is in heaven above, or that is on the earth beneath, or that is in the water under the earth.

You shall not bow down to them or worship them; for I the Lord your God am a jealous God, punishing children for the iniquity of parents, to the third and the fourth generation of those who reject me,

but showing steadfast love to the thousandth generation of those who love me and keep my commandments.

You shall not make wrongful use of the name of the Lord your God, for the Lord will not acquit anyone who misuses his name.

Remember the Sabbath day and keep it holy.

For six days you shall labour and do all your work.

But the seventh day is a Sabbath to the Lord your God; you shall not do any work—you, your son or your daughter, your male or female slave, your livestock, or the alien resident in your towns.

For in six days the Lord made heaven and earth, the sea, and all that is in them, but rested the seventh day; therefore the Lord blessed the Sabbath day and consecrated it.

Honor your father and your mother, so that your days may be long in the land that the Lord your God is giving you.

You shall not murder.

You shall not commit adultery.

You shall not steal.

You shall not bear false witness against your neighbor.

You shall not covet your neighbor’s house; you shall not covet your neighbor’s wife, or male or female slave, or ox, or donkey, or anything that belongs to your neighbor.

It’s certainly true that one can refine on those core principles.  Murder can be situational.  Is it murder when one is engaged in war?  Is it murder when one is acting in self-defense?  Is it murder when one is in the grip of a delusion?  Stealing also might yield to situations:  Is it stealing if you’ve been imprisoned by the Nazis and are able to “obtain” food from one of those same Nazis?  While the nuances are pretty much endless, the core principles remain easy to follow.

The same is true for a lot of conservative core principles.  “The more power that vests in government, the less power there is for individuals.”  Again, you can debate situations in which it is appropriate to cede power to the government, but the underlying truism is easily expressed and helps guide conservative thinking without any fancy linguistic tricks.  “Government is a poor manager.”  Well, our own life experience shows us that.  We acknowledge that there are some things that government must manage (the military, national transportation, etc.), so the application of that principle is open to debate, but the principle itself is straightforward, and easy for the man on the street to understand.

One thing life in law has taught me is that the best arguments are invariably the ones that can be expressed in the simplest terms.  If I have to mass hundreds of little factual points and conclusions, and delicately weave them into some airy, gossamer fabric, I’m going to lose.  I’m adept at doing that, since I have a flexible mind and good writing skills, but even the best lawyer is going to have a hard time forcing a judge to bet on that tangled intellectual fabric.  If my argument, however, is a short, sweet, easy-to-understand amalgam of fact and law, I’ve won.

And here’s something for you to think about:  it’s no coincidence that the best writers on the Supreme Court are conservatives (Roberts and Scalia), while the worst writers are, and have been, liberals (Ginsburg, Stevens, Souter).  Liberals spend an inordinate amount of time trying to pretend that disparate ideas, false logic, unworkable syllogisms, bad law, and twisted facts can come together in a smooth, constitutionally whole fabric.

The conservative justices, however, since they begin each decision with the Constitution (itself a simply written document) as their guide, are easily able to bring facts and law together under that already logical umbrella.  They therefore repeatedly publish decisions that are well-written, comprehensible, and easy to sell to ordinary Americans, without translation through the Berkeley linguistic filter.

In other words, the problem doesn’t lie with liberal language, it lies with liberal ideas.  And if you don’t believe me look at Obama.  Liberals consider him to be the oratorical Second Coming of John F. Kennedy.  He has promoted his health care plan in 35 speeches, but has only succeeded in hardening voters’ dislike of government run health care.  It’s not how he says it, it’s what he says.

Defending against legal jihad

One of the lesser known, but very dangerous fronts, in the jihad war against the west is the Islamists’ habit of using our own Western laws against us.  Right now, a front in that particular battle is being waged in Canada, where McMaster University is suing Dr. Paul Williams after he wrote about the peculiar nexus between that institution, Islam, and terrorists.  You can read Dr. Williams’ side of the story here, at Right Truth.

Maybe I’m not quite as cowardly as I thought I was

One of the main reasons I’ve kept my politics under wraps (stating my views if confronted directly, but not engaging in heated political debate otherwise), is because I’ve been worried that it would affect me professionally.  In my neck of the woods, most of my potential clients had Obama bumper stickers on their cars and sang hosannas upon his election.  All of them are very nice people  (I wouldn’t work for them otherwise), but I’ve never trusted any of them enough to risk letting them know that I disagree with their political outlook.  I kept telling myself I was cowardly or paranoid, but then I’d look at the money they paid me, money that helps pay our expenses and fill our retirement accounts, and I’d figure a little paranoia and cowardice wasn’t so bad.

It turns out that my instincts might have been right.  Although I’m sure it wasn’t my clients who wrote to the New York Times‘ ethicist, it could have been.  It turns out that some lawyers are thinking that it’s okay to discriminate against conservatives, just as one might once have discriminated against blacks or Irish or Jews (h/t Above the Law):

While interviewing law students for jobs as paid summer interns and full-time associates for my firm, I noticed several had résumés listing their activities in the Federalist Society. Some of my partners have conservative views similar to those of the society, but I do not. These students’ politics would not affect their professional function, but my review is meant to consider their judgment and personality (though I don’t need to give reasons for the assessments given). May I recommend not hiring someone solely because of his or her politics? NAME WITHHELD, GREENWICH, CONN.

The Federalist Society incidentally, the one that gets this lawyer’s knickers in a twist, is not made up of rabid, Bible-spouting, gun-toting, racist, homophobics.  Instead, it is a highly intellectual legal organization dedicated to preserving the Constitution within the context of the legal profession.

To his credit, Randy Cohen, the Times’ resident ethicist, was horrified by the idea (although he still manages to take a swipe at the Bush administration):

You may not. If candidates can do the job, bathe regularly and work well with others, you should hire them. As you note, their “politics do not affect their function.” Is it your position that only people who share your politics should be allowed to make a living? It was odious when membership in the Federalist Society was all but required for some jobs in the Justice Department; it is no more appealing to make that affiliation a bar to employment at your firm.

What’s fascinating about the above interchange is that the lawyer, having written to the ethicist to seek his guidance, promptly ignored the guidance sought:

Believing that all the applicants were qualified, but able to hire only a few, this person recommended rejecting each member of the Federalist Society.

It’s exchanges such as the one above that confirm with me that I haven’t been paranoid.  Liberal lawyers are just as prone to discriminatory practices as are universities.  Speaking of which, I heard from a parent that his child had to go through a more rigorous admissions process at a major university because of his conservative politics — and, unsurprisingly, that same university couldn’t bring itself to say yes.  What was amazing was that there was nothing subtle about this.  They viewed this sterling young person with the same suspicion that you or I might give to a child raised in a terrorist enclave.

I was raised as a liberal.  I know liberal thinking:  conservatives are evil.  And really, if you had a law firm to run, would you want evil people working for you?  It’s hard enough to be lawyer without worrying about the devil in the office next to yours.

Incidentally, I don’t have a problem with firms making such decisions.  If they want to shut out the best and brightest legal minds, the market will eventually turn on these firms.  I do have a problem, however, when publicly funded universities and colleges, or publicly funded radio and TV stations, engage in the same discriminatory practices.  If you’re going to relieve me of my money through the brute force of government, you better pay lip service to my views.

A decent, and prescient, courtroom thriller *UPDATED*

For my birthday, my husband gave me an Amazon Kindle.  It’s a sensible gift for me, since I read voraciously and often find myself waiting around in various places because of carpools.  Since the Kindle fits in my purse, I always have something to read.

The only problem with the Kindle is the expense.  Hardback books are 50% off, but I would never pay $10.00 for a book.  Paperback books are barely discounted at all, and I would never pay $8.00 for a book.  So, I do three things:  I still haunt my library; I buy “disposabooks” at Goodwill (novels for about $1.39 each); and I download the free books that publishers put up at the Kindle site in hopes of sparking interesting in a writer.  (You can see what I mean at the Kindle bestseller page.)  A couple of weeks ago, I lucked out when I found a series of JAG Corp legal thrillers by a guy named Don Brown.

I’d never heard of Don Brown before finding his books, and quickly discovered why:  The books are Christian themed and are from a Christian publisher.  In other words, this is not a genre that would normally cross my radar.  Not being a Christian myself, I don’t seek out Christian literature.  The lure of free thrillers, however, was too much for me.

I just finished Brown’s first book, Treason, and am now reading his second, Hostage. Treason was an interesting book.  Brown’s writing is a little wooden, but no more than you’d expect from a first time novelist.  Despite the writing, though, there’s a lot to like about the books.  First, as a lawyer, I found the courtroom scenes and the description of trial proceedings interesting.  The twist of a military setting just added a bit of spice.  Second, I liked his lead characters, who are moral people (in large part due to the Christian element), and who grapple with legal situations familiar to all lawyers.  Third, I really enjoyed his abiding love for the Navy, which comes through in every word.  Even the uniforms delight Brown.

Mostly, though, I liked the book because of Brown’s honesty about Islamic terrorism.  Brown has no interesting in politically correct tropes about peace.  He recognizes that we are at war with a fanatical element in Islam, which in turn is supported by passivity and political correctness. In Treason, published in 2005, Brown showed himself to be especially prescient.  The plot involves Islamic members of the military who use their special access to commit acts of terrorism directly against the military — shades of Nidal Hassan.  Brown also grapples with whether Islamic terrorists who are engaged in guerrilla activities against the United States should be tried in regular criminal courts or in military courts.  That, too, could have been ripped out of today’s headlines.  It’s no surprise, given that his protagonist is a JAG officer that Brown sides with a military tribunal, but he also makes cogent arguments for doing so — arguments that could be made, and have been made, with respect to Holder’s/Obama’s insane decision to try KSM in New York’s federal courts.

So, if you’re looking for an easy read, military thriller, with strong Christian themes, I can definitely recommend Don Brown’s books.  They are fun, and they have a crystal ball element of prescience that I always appreciate.

UPDATE:  Just finished Hostage.  As I suspected it would be, it’s better than Treason.  From one book to the next, Brown’s writing became more polished and smoother.  The first book was a good debut effort, but Brown is now getting his writing chops.