Monthly Archives: January 2010

Christianity part of the common law?

Really? Readers: What do you think? RT @lizarddawg: “Christianity is part of the common law” – James Wilson #Christianity #law #commonlaw

“Money talks,” say Angus and Malcolm Young; SCOTUS listens.

When they penned “Money Talks,” Angus and Malcolm probably didn’t know how close they were to the First Amendment, but on Wednesday the Supremes agreed: money is speech, and under the First Amendment of the U.S. Constitution, Congress cannot pass any law which restrains speech.

For a lot of people, Senator John McCain among the exceptions, the law was seen as a restraint on the exercise of free speech.  The arguments against the law, which limited corporations and unions fromdirectly donating to campaigns or running advertisements for or against candidates or issues (readers: correct me if I’m getting this wrong), stated that corporations were comprised of individuals and have the same rights under the Constitution as others.  Those who supported campaign finance restrictions feel that corporations can exercise an undue level of influence on the political process by virtue of their ability to magnify their voice with more money.  At the root of both of their arguments, however, is the assumption that money really does talk…and those with more money can talk louder.

Ironically, the result was that those who most opposed the campaign finance restrictions–generally, conservatives, federalists, libertarians, and Republicans–ended up receiving the most benefit, while those who supported the restrictions–bleeding hearts, liberals, living constitutionalists, and Democrats–were the most hurt.  A major part of the liberal base is found in unions, but under the federal law, these groups would be restricted in supporting their candidates, a restriction that would not hurt Republicans, whose base was elsewhere.  A great example of the hurt was the Swift Boat Veterans for Truth attacks on John Kerry in 2004.

Fast forward to this week…

Wednesday saw the Supreme Court handing down its decision knocking down many of the campaign finance limitations by Congress over the last several decades, especially the much ballyhoo-ed McCain-Feingold campaign finance reform.  Corporations may spend freely to support or oppose candidates for president and Congress, the opinion said.

Personally, this sounded like a great win for the First Amendment.  People, even if they are acting on behalf of their company, can now speak their mind and support the candidates they want.  You can imagine my surprise at the exchange I saw cross the local law school’s open forum, then.

“just thought I’d bring everyone’s attention to this ruling which overturned campaign finance limits on corporations and unions . It would be great to get everyone’s thoughts on this.  My initial reaction: Seriously?!? Money is not speech. Voters’ voices are speech.”

Rational minds can disagree, but I was surprised at the almost summary dismissal by an up and coming attorney of the role that money has in making one’s voice heard.  The kind of person who does not believe money is relevant is just a step away from limiting all campaign contributions.

As if that wasn’t enough, the exchange continued:

“I hope that Congress heeds Pres. Obama’s call for “forceful response” to SCOTUS’s decision today.”

Fortunately, I think the rose-colored glasses  through which these students view the world is limited to their age or, perhaps, experience.  Certainly, the professors over at Volokh have been “all a twitter” with excitement discussing the decision.  Among other discussions there, their analysis is covering how the decision will affect the main stream media (and here), “people organized in corporations are people, too,” and the dissent.  I recommend you check it out for a more thorough treatment of this weeks decision.

Until next time, remember: “Money talks, money talk, talk, talk/Hear it talk”

Can one “rock out” to John Denver?

In a post that perhaps my siblings but not my father can appreciate (since they complained that I don’t have enough pictures here), a man was cited for rocking out to John Denver.  From Lowering the Bar:

According to the report, Officer Ryan Williams pounded on the man’s door and, while doing so, “recognized the songs of the late singer John Denver.”  The man did not answer the door until the officer called him by name after talking to one of his neighbors.  When Williams asked the man why the music was so loud, he responded that he was just “rocking out.”

If You Play It Backwards, You Get a Message From Marie Osmond

I know I just got done criticizing a judge for ordering searches and seizures based only “on a hunch,” but I think this is different.  If someone tells police he is “rocking out” to John Denver music, that alone should be probable cause to search him and his apartment, and possibly his car and all his friends too.  Because something just isn’t right there.

If subjecting the neighbors to John Denver music is worth a visit by the police, then it’s possible that my parents subjected me cruel and unusual punishment for years.

Orthogonal: or “SCOTUS learns a new word.”

Orthogonal.  As in:  Professor Richard Friedman’s direction became orthogonal during his oral arguments before the Supreme Court last week. The newest word to enter the Supreme Court lexicon made its appearance when the before mentioned professor stated:

“I think that issue is entirely orthogonal to the issue here.”

If you think a sesquipedalian is going to drop a ten-dollar word  like that and just slip by the Justices, then you, like Friedman, have another think coming.  Chief Justice Roberts was the first to stop him.

“I’m sorry. Entirely what?” asked Roberts.

“Orthogonal,” Friedman replied. “Right angle. Unrelated. Irrelevant.”

As if that was enough, Justice Scalia wanted to add it to his repertoire, as well.  As the ABA Journal reported:

“What was that adjective? I liked that,” [Scalia] said.

“I think we should use that in the opinion,” Scalia later added. “Or the dissent,” said Roberts.

The good, the bad, and the fired: something of a weekly round-up of law industry news

2009 the worst year for layoffs

First “the fired:” last year, according to LawShucks, over 12,000 people in the legal services industry were laid off, which includes over four thousand lawyers.

This year’s story was largely written by the end of March, when 73% of the year’s total layoffs had happened, as we noted in our mid-year review. The pace has slowed even further since. Eighty-eight percent had been done by mid-year, leaving “just” 1,473 layoffs for the last six months of the year –four fewer than in a single week in March.

Most of the layoffs by March?  No wonder I couldn’t get an interview at a firm to save my life.  (And even more amazing that I landed in the great position I did.)

As if it isn’t bad enough that the legal industry went through the worst year ever for layoffs, budding young lawyers can expect to come into that market with well over $100k in debt.  Nearly a  third of students expect to carry over $120,000 in loans by graduation.  If my debt is any indication of the average debt load of graduating lawyers, then that one-third is right on target.  Unfortunately, this kind of debt load limits choices.  The same report indicates that nearly a third of those with a $120k loan balance plan on careers in public interest.  Although there are new federal programs designed to relieve the debt load of attorneys in public interest, your living standards or compensation aren’t anything like what the private sector offers.  I wonder how many students end up readjusting their career expectations based on the cost of school.  The upside?  At least the majority of students still believe that going to law school “substantially contributes to their acquisition of job or work-related knowledge or skills.”

Unbundling and practical skills trump school rank

I’ve heard that the word of ‘crisis’ in Mandarin is the same as the word for ‘opportunity.’  (I’m working my way through Rosetta Stone’s Mandarin, but I haven’t come across that word, yet.) And we’ve all heard anecdotally that the Obama Administration doesn’t want to waste a good crisis.  For the young lawyers coming into the legal industry in 2009 and this year, the good news is that the economic crisis is opening doors for those of us who weren’t at the top five schools or in the top ten percent of our class.  Some of the ways we can are in unbundling and in practical skills.

On unbundling, recently a couple of state supreme court justices, John Broderick Jr. of New Hampshire and Ronald George of California, have suggested that unbundling legal services–that is, offering to do just part of the legal representation, but not the full panoply of services, might give more people access to our services, especially those who otherwise might not be able to afford full representation.  Quoted in the ABA Journal:

With proper ethical safeguards, lawyers offering unbundled legal services—particularly solo practitioners–may be able to help some people who would otherwise have never hired a lawyer, they say. “For those whose only option is to go it alone, at least some limited, affordable time with a lawyer is a valuable option we should all encourage,” they write.

“We need members of the legal profession to join with us, as many have done, in meeting this challenge by making unbundled legal services and other innovative solutions—like self-help websites, online assistance programs and court self-help centers—work for all who need them.”

There are a lot of young solo practitioners out there, many not by choice.  It seems like providing services a la carte might be a way to get more business than might otherwise have been available to the new members of the bar.

On that note, practical skills are also going to become more valuable than rank.  As few bigger firms hire, or wait for the economy to pick up before returning to pre-2009 levels, it will be less important what your abilities were in law school relative to your piers and more important to lawyering skills, rainmaking, and practical ability.

“Firms are going to focus on what lawyers can actually do as opposed to what they should be doing at a particular level, class year or school they are coming from,” Beth Woods, managing director at legal recruiter Major Lindsey & Africa, told the ABA Journal.

At the very least, this levels the playing field.  Practical skills are going to bring the  best lawyers to the forefront.  My experience in law school was that the academic distinctions, generally, between the top and the bottom of the class were few, where as the ability to hustle, persuade, write, and network were greater.  However, law school doesn’t really test these skills, except in a few competitions such as moot court.  As a result, the spoils go to the winners, despite the fact that the winners are determined by a criteria that may not be completely reflective of the real world.  With the economy in the dumps, though, more of us have had to enter the real world (in contrast to the lockstep of the firm) and are facing the reality of actually having to work.  I guess we’ll see?

I’m not the only one wondering this.  Inside counsel, who often hire the firm to manage their litigation, have begun to question the value of the untrained associates employed by the firms.

Corporate counsel say they see the point of paying top dollar for law firm partners, but openly wonder whether first-year associates at major law firms, in particular, are worth what they cost.

Worth it? or not?

The Bad: judges with too much of the wrong experience a bad thing, says Scalia

One of my favorite members of the SCOTUS to follow is Antonin Scalia.  Whether I agree with him or not, he always has something interesting, insightful, inflammatory, or refreshing to say.

From the ABA Journal:

When he was nominated to the bench, Scalia said in a Monday speech, there were three justices with no prior judicial experience, the Associated Press reports. He told a luncheon sponsored by the Mississippi College School of Law that he’s worried about the trend to nominate only justices with prior judicial experience.

A varied career brings additional insights, Scalia said. “That’s why I think it’s good for the court to have people of varying backgrounds.”

Scalia said he is worried the trend is leading to the European system, where law graduates choose whether to become lawyers or judges, and stay in that position their entire careers.

People with only judicial experience “come to think the government is always right,” he said. “Now you contrast that with the Anglo-Saxon system where, in the most important courts, the judges not only have not been spending their whole lives with their snout in the public trough, they’ve been suing the government. They’ve been defending their clients against the government. [It’s] a different mindset.”

What do you think? Too much experience a bad thing?  Should more private practitioners be appointed the bench?