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.


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


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.


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):


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, 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



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.


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.


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.


“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



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 “,” 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 “”, 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.