Workplace religious bullies are not protected by discrimination laws, but sometimes, neither are their victims

June 19, 2013

The notion that workplace discrimination laws are easy to exploit is pure propaganda. “What do you mean, she’s suing for discrimination? She was just a bad worker!” “Nobody’s racist anymore – why do we even have racial discrimination laws anymore?” Easy statements, with a certain no-nonsense appeal, but the fact is that plaintiffs in employment discrimination cases face long odds in the courtroom. At the federal level, plaintiffs in job discrimination suits win just 15% of the time (against a 51% plaintiff win rate for all civil cases at the federal level); when the appeals process is factored in, that rate can be as low as 2%. Because of these high risks, plaintiffs’ lawyers are often hesitant to charge on a contingency basis, and so plaintiffs might find them out hundreds or thousands of dollars in legal fees before they even get to trial – and then you keep spending until you either settle (almost universally a better solution that waiting for a verdict) or, lose at trial, lose on appeal, settle after a remand, or win the plaintiffs’ lottery and actually win the case. Plaintiffs’ lawyers face stiff competition from the understaffed, underfunded, underpowered Equal Employment Opportunity Commission which, while a socially worthwhile organization, often just corrals plaintiffs into mediated settlements, usually without a lawyer of their own, helping lawbreaking employers to buy their way off the hook at discount price. In short, employee-plaintiffs have long odds with high costs against a convoluted discovery process with clients who simply can’t afford the long haul it takes to win a big case. And that’s when the EEOC isn’t talking potential clients into settling for peanuts.

Ad on top of all these things, the employee-plaintiffs’ bar sometimes gets people like Pamela Hall.

By all accounts, Pamela Hall is a bully. According to the factual background of the just-decided Hall v. Tift County Hospital Authority, Pamela Hall, a Baptist and a former quasi-supervisor with a Georgia hospital, and Amanda Dix, a staff nurse under Hall, were friends, until religion came up. After what is surely a fascinating but, sadly, judicially unread backstory in which Hall accuses Dix of sleeping with Hall’s husband, Dix reveals to Hall that she is a lesbian, and Hall’s religious beliefs seemingly launched into overdrive.

Now, being a Baptist (ie, anti-gay) with a gay subordinate is not itself fodder for a discrimination case. Neither was it a discrimination case when Hall stuck a religious tract and a condescending little note in Dix’s locker (you know the kind, the condescending Christian power-trip: ‘your sexuality makes you morally inferior to me, but I will be merciful, since it is only your sexuality I hate and that you should change, not you personally!’). And neither was it a discrimination case when Dix found herself receiving follow-up religious harassment from Hall.

So when did it become a discrimination case? According to Hall, it was when she was demoted from her supervisory position. Not fired, not transferred to Alaska, just demoted – and by all appearances, temporarily. Now clearly, she lacks the stability and people skills to be leading anyone which is why she was demoted, but instead, she claims she was demoted because of “religious discrimination.”

What Pamela Hall’s lawyer hopefully told her before going to court was that, in order for something to be discrimination, you have to be treated differently because of your religion. If you’re a Baptist who harasses her subordinates, who goes out of her way to make people uncomfortable because of personality traits that are irrelevant to job performance, then you’re no more fit to lead a team than a Hindu, a Muslim, or an atheist who does the same thing – which is why you have to find the Hindu, Muslim, or atheist who does do the same thing and isn’t demoted, or who receives a lighter punishment. You can’t just be a Baptist who gets in trouble, you have to be in trouble because you’re a Baptist and because you’re not something else.

She lost her case. Her demotion was clearly because of her inadequate leadership traits. But the real sad point here, though, is how her victim’s own case when.

Because her victim doesn’t have a case.

Georgia, like the majority of American states, provides absolutely no job discrimination protections based on sexual orientation. If Hall had gone to Dix and fired her, handing her a pink slip that said just “NO QUEERS IN MY HOSPITAL!,” that would likely have been completely legal (barring a miraculous judicial resuscitation of the moribund public policy exception, but, that’s a tale for another day). Now, a pink slip saying “NO NON-BAPTISTS!” would have been a problem, for Title VII reasons, but Title VII says nothing about sexual orientation discrimination.

Many states have had the courage to stand up to bigoted religious interests, but unfortunately, Georgia is not one of them. Workplace bullying* is bad enough when it isn’t tantamount to discriminatory or bigoted behavior, but it’s far worse when bullying is so obviously based upon pure prejudice and the law provides no remedy for the victims of such blatant aggression. Pamela Hall is the true face of the parody plaintiff, the one who truly bungled her job and abused discrimination laws as an excuse for her own incompetence. And unfortunately, if her victim hadn’t had the courage to complain to upper management, Dix might have herself seen job consequences, even been fired, and had no remedies whatsoever.

*People interested in the subject of workplace bullying and the law are encouraged to read Suffolk Law professor David Yamada’s blog on the subject.


How did ‘Under God’ survive this long?

June 15, 2013

Today marks the 59th anniversary of the introduction of the phrase “under God” to the Pledge of Allegiance. The Pledge of Allegiance, which predates its Congressional takeover by several decades, originally contained no particular theistic commitments, but since 1954 has forced schoolchildren to recite a very specific, very sectarian credo. “There is exactly one God, no more, no less; he is trustworthy; and we trust in his judgment,” goes the longhand version of “in God we trust.”

“In God we Trust” seems like the perfect storm for Constitutional objections. Students punished for not reciting this particular section of the Pledge face the rather unappetizing combination of forced speech, and forced sectarian endorsement. Where the First Amendment protects freedom of expression, the Pledge of Allegiance compels one form of patriotic expression over all others and over silence. Where the First Amendment forbids governmental intrusion into matters of religious opinion, the First Amendment compels expression of a specific sectarian interpretation of theism. If Congress passed a law tomorrow saying that every American must say that America is one nation under God, the law would last about an hour and a half in front of the courts, and most of that would be the time it takes Scalia to obfuscate an obvious truth.

So why has “under God” lasted so long in the Pledge?

The main reason is the relatively esoteric “standing” doctrine of Constitutional jurisprudence. Every case calling for the repeal of a law that reaches any court of consequence requires that somebody actually be harmed by the creation or enforcement of  that law. To date, the Supreme Court has managed to dodge the politically thorny “under God” question by dismissing challenge after challenge not on the merits of the case, but on the standing of the appellant – that being, almost universally, Michael Newdow, parent of a child routinely forced to make the aforementioned highly-specific theistic commitment every day. Eager as always to dodge controversy, the Supreme Court was happy to treat Newdow as more or less unrelated to his own daughter in the one case with promise for challenging the clearly unConstitutional compulsory theistic commitment forced onto your children five days a week.

On its merits, “under God” is a no-brainer. For the government to compel you, an American citizen endowed with freedom of speech, to say anything at all is unconscionable. For that compulsion to be on a matter of theistic commitment is insult atop injury. And yet the Pledge has survived from this day in 1954 onward. The reason is not Constitutional support. The reason is not jurisprudential consistency, it is not principle. It is jurisprudential cowardice, tied to ancient Congressional paranoia. Nothing more. Happy anniversary, and may you soon rest in peace, “under God.”

With paternalistic religious pandering still all the rage in some parts of America, the “under God” question is not a merely academic First Amendment question. It is a question of how many politically easy descriptions of American religiosity the courts are willing to accept before they realize that the Constitution is being truly offended. Given the absolutely obvious Constitutional question of whether or not American children can be compelled to recite a sectarian religious statement, the Supreme Court’s historical reticence to do the right thing is truly unsettling. But with the Circuit courts permitting a challenge to “under God” to rise through the ranks in 2012, we may actually have an opportunity to see the Court face its own historical reticence. As a secular person myself, I for one cannot wait for the courts to confront the obvious, and to make amends for its historical evasions.

Is your unpaid internship illegal?

June 13, 2013

A New York judge recently ruled that Fox Searchlight Pictures must pay two of its former “interns” for work they did on the set of the 2011 film “Black Swan” back wages for work that the interns didn’t know that they were performing. Despite being told that they were interns, the two workers in question did all of the ordinary work that people are normally paid to do, and in fact they actually did so alongside other paid workers. The only difference between the “interns” and the paid staff was that the interns were told, and probably really thought, that they didn’t need to be paid.

This case, Eric Glatt et. al v. Fox Searchlight Pictures, has enormous implications for businesses and for the thousands of Americans either in school, or just leaving school, who are applying to or currently participating in unpaid internships. Not because the case signals some radical new change in the law – the law has been remarkably consistent on unpaid internships for years – but because now people might actually start to know the law on unpaid internships.

Fox Searchlight Pictures’ lawyers, just like the lawyers for the large companies that pull in thousands of unpaid interns every year, have to know the law on this one because the law is very plain: you must pay your workers. This is especially true in the private sector. The Fair Labor Standards Act, the flagship legislation in this field, only exempts very specific kinds of volunteer work for government, religious, and humanitarian agencies. The private sector has no such exemptions, and even those exemptions for charitable organizations are strictly defined. Otherwise, if somebody does work for you, you have to pay them.

So the question then becomes, what separates a “worker” from an “intern?” I’ll give you a hint: it is not just the difference between being called an “intern” instead of a “worker.” The rule that employers do not get to unilaterally make legal determinations about your status as a worker is consistent across several aspects of the worker: your employer does not get to unilaterally decide if you are entitled to overtime pay or not, your employer does not get to unilaterally decide that you are an at-will employee, and your employer does not get to unilaterally decide that you do not need to be compensated for your work.

The Department of Labor has issued some extremely clear guidance on this matter, and looking back over my own past, the unpaid “internships” I’ve done, it becomes pretty clear that very few so-called private sector “internships” are anything but evasions of the obligation to pay workers for their time, intentional or otherwise. According to the Department of Labor, In order to actually qualify as an internship that doesn’t need compensation, for the purposes of the Fair Labor Standards Act:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

This means that the internship where you primarily get or make coffee, make photocopies, or do work like the paid office temp is doing, will likely not meet this criterion. Nobody takes classes in college on the Starbucks order.

2. The internship experience is for the benefit of the intern;

This sounds fairly easy qualification for the employer to meet, since it’s rather broad. All that running to Starbucks is for the “benefit” of the employee, right? But this part of the test speaks to benefit in the sense that an education is for your benefit: you’re putting work into it, and getting a benefit from it, with a direct proportion between them. Fact Sheet #71 contemplates an apprenticeship model for the unpaid internship: it is supposed to be like a classroom on the job. The harder you work at it, the more you get out of it, not the more your employer gets out of it.

3. The intern does not displace regular employees, but works under close supervision of existing staff;

This speaks to the real policy agenda of Fact Sheet #71. You might have been jokingly referred to as “slave labor” when you worked your unpaid internship. That isn’t far from the truth. The policy agenda behind Fact Sheet #71 is to forbid employers from depressing wages, sabotaging the employment rate, and hurting skilled workers by replacing them with students. The Department of Labor doesn’t want your sincere desire to learn to take precedence over the life and livelihood of a skilled, experienced, paid worker, letting employers save on their labor costs at the expense of the entire rest of the economy.

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

This is the one your unpaid internship is most likely to trip. Did your employer ever actually lose anything from your being an unpaid intern? Did they set aside space for you, or the time of a staffer, that cut into their operations? And while they were doing that, did they gain nothing – nothing from you?

There is some ambiguity in this part of the guidelines, though. Does it mean that the employer gains no advantage whatsoever – not even so much as getting a cup of coffee that your boss might have had to set aside time to go get herself? Or does it mean that the employer gains no advantage in net – your boss might have gotten her coffee, saving her five billable hours over the course of the summer, but she also spent ten billable hours teaching you about your area of study, and so, in net, she gained no immediate advantage? I don’t know the answer to that question, but I think it likely that most unpaid internships are extremely lopsided one way or the other, either with the unpaid internship being little more than an employee in all but paycheck, or the internship being a genuinely student-like apprentice.

5. The intern is not necessarily entitled to a job at the conclusion of the internship; 

This one is included to make the point that, if you have an on-the-job training period for wherever you end up working, you should get paid for that training period. Most of the time, what you call a learning period with a job guaranteed afterward is a “training period.” This is included in the fact sheet to prevent employers from getting to reduce their labor costs at the expense of trainees by calling them “interns,” consistent with the principle that employers do not have unilateral power to make legal determinations about their legal relations with and obligations to others. As an aside, there’s an interesting economic incentive lurking behind the necessity that employees must be paid for on-the-job training: it incentivizes companies to seek out employees who are already trained or skilled, thereby encouraging workers to incur the costs of training on themselves by going to school and discouraging employers from bringing unskilled workers into the skilled labor force. Interesting, I suppose, but only relevant to you if your internship is in economics.

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Your employer, of course, will always “understand” that the internship is not entitled to wages, but do you? Have you ever known someone who got hours or even days into an internship before asking when payday was, only to be “reminded” that the internship is unpaid? That person is illegally unpaid.

The main takeaway from the Fox Searchlight case is not a legal point, since the law is clear and consistent. Minimum wage and overtime laws make no allowance for unilateral determination by employers that their workers should be exempt from those laws. The proper unpaid internship follows is a hybrid apprenticeship/classroom model. The proper unpaid internship is not just training for an inevitable job. The internship should be fixed in duration, and done under the supervision of people who have something to teach you, not just staffers whose job and wages you undercut.

Rather, the takeaway is that interns have the same rights as any other workers, and the only thing between private sector wage violators and a torrent of lawsuits is knowledge. Knowledge you now have.

Oregon vaccination bill SB 132: looks good on paper, but ambiguous language and open liability questions leave room for improvement

June 11, 2013

Oregon, finally taking action on widespread non-medical child vaccination refusals, has passed a revision to its vaccination requirement laws that imposes some interesting new requirements on parents who want to use non-medical reasons to excuse their children from vaccinations. Under the old system, all that parents had to do in order to prevent their children from getting potentially life-saving vaccinations and still go to public schools was sign a free waiver claiming some kind of nonspecific religious affiliation that forbids vaccinations. With virtually no regulatory oversight, ease of access, and an inability of state health agencies to combat the inexorable propaganda arm of the anti-vaccination crowd, rates of unvaccinated children in Oregon are very high, more than five times the national average. The problems with such a system are tragically obvious: pertussis epidemics, weakened herd immunity, converging on the sad and detestable fact that philosophical, religious, and non-scientific objections to vaccinations hurt children.

But really the only thing that saves the entire national vaccination scheme from destruction at the hands of the First Amendment’s religious protections is that people with religious beliefs are exempt. A vaccine system without a religious exemption would be both politically impossible and Constitutionally problematic. But when you leave a hole in the vaccination scheme for any parent whatsoever who wants to avoid vaccinations for whatever reason, including non-religious pseudoscientific objections to vaccinations, you get problems so serious that they almost amount to the same thing. Case in point: Oregon. When the number of immunized members of a population drops below a certain threshold (“herd immunity”), the unvaccinated persons provide a large enough biome for that disease to not just infect the unvaccinated persons, but to mutate and evolve in their bodies and then spread to vaccinated people, since the vaccine is targeted to the pre-mutation disease.

In short, a vaccine program that doesn’t get to herd immunity levels is worthless, but a program that doesn’t have a religious exemption is impossible. So, what’s a state government to do?

SB 132‘s approach is pretty clever. Instead of just ending the exemption, it requires everyone – religious or not – who wants their children out of the vaccine program to either get the signature of a “practitioner of healing arts” saying that the parents have been provided with factual information provided by the state about the safety and importance of vaccines, or to complete an online course in vaccine safety and importance, which comes with a certificate of completion.

In an ideal world, this system strikes a good balance: those with religious objections to vaccines aren’t objecting on grounds of safety or importance so getting that information can’t interfere with their religious beliefs, and those objecting for pseudoscientific reasons are objecting on grounds of safety or importance, and so a little education can only help to nudge them in the direction of public safety. Right?

I am irked by some ambiguities in the language of the bill. Firstly, while the bill clearly states that the online education module parents can complete in order to opt out of the vaccine program must be prepared and provided by the state health authorities, and so will likely be accurate. Instead of the online module, however, parents can get a signed statement from a medical practitioner saying that information has been provided to the parents, instead of taking the state-authored course. But it says nothing about what kind of “information” a “practitioner of the medical arts” must “provide” for the waiver to be effective.

  • The bill says that the information must be about the “risks and benefits of immunization.” But who screens this content? The bill doesn’t say. Does the information have to give “equal time” to both scientific and nonscientific assessments of vaccine safety? The bill doesn’t say. Does the information even have to be accurate? The bill doesn’t say! And if it does have to be accurate, who gets punished for the inaccuracy of the information when a child gets hurt – the parent? The publisher of the information? The doctor?
  • What is a practitioner of the medical arts? The bill does not say, and the phrase is so awkward and ambiguous that it seems clear to cast a wide net. Does information qualify if it comes from your homeopath? What about from your snake-handling faith-healer? Or from your great-aunt Gertie, the one who gave you chicken noodle soup when you were home sick from school?
  • How does the doctor know when information has been provided to the parent, and who provides it? What if the parent gets the information from the internet and tells their doctor that they’ve read about vaccines already? What if it’s a book published by the anti-vaccination crowd? What if the doctor gives the parent a stack of accurate, reliable, and well-vetted information from prestigious national and international medical bodies extolling the virtues of vaccination, and the parent drops them in the trash can on the way out of the office – is that providing information on vaccines?

Unfortunately, these questions will likely have to be resolved through litigation, which of course means that somebody has to get hurt, and somebody has to get punished, before we get clear answers to these questions.

But that raises the obvious next question of liability. Suppose a doctor gives a parent information showing that vaccines are safe and important, per the doctor’s good-faith attempt to follow the rules of a good-faith vaccination bill, but then that parent’s child ends up getting sick or even dying from a vaccine allergy. Will doctors be chilled from giving out even reliable vaccination information? The bill says nothing about liability shields for information-providers (which, I’m annoyed to say, could have been solved if the Oregon legislature had just stuck the word “accurate” in there!), or for doctors. Are doctors allowed to refuse to sign the waiver forms, even if they’ve provided the educational information? If they are, who accounts for the rights of the religious waivers, and if they aren’t, who accounts for the conscience of a doctor?

I like SB 132. I like where its head’s at. But the bill is taking on a difficult task: balancing the Constitutional rights of those whose religions put everyone else at risk, against the equally dangerous but less-protected desires of those whose secular pseudoscientific beliefs put everyone else at risk. If we see an uptick in the Oregon vaccination rates by even the slightest degree, the bill is a success. But I’m much more confident that we’re going to see an uptick in litigation before we see the health outcomes.

Five simple questions to ask about the outcry over the NSA’s PRISM program

June 7, 2013
  1. Are you more, or less, outraged over data-mining of this kind when it is done by internet marketers, search engine web-crawlers, or people who use search engines?
  2. The government is restricted from using its own mined data by the threshold inquiry of the Fourth Amendment. Do you think that this is more, or less, restrictive than the burdens internet marketers, search engines, and other private entities place on themselves when they access or distribute your data?
  3. If you didn’t want data of this kind being mined, why did you give your phone company and your cable provider the right to do so in the EULA you signed?
  4. What sort of outcry do you think is appropriate for the fact that the government’s Postal Service has location, date, and timestamps for every piece of physical mail sent in the United States, and that the government can read your mail when they think they can beat the 4th Amendment threshold for suspicious messages or messages between terrorists?
  5. What reasonable expectation of privacy does your twitter feed have?

The PRISM program tracks who you call and when – it doesn’t record your phone calls. Your phone company tracks who you call and when – it doesn’t record your phone calls. PRISM knows what’s on your Facebook page. So does Facebook, and thousands of its internet marketing affiliates. PRISM knows what you tweet. So does Twitter and everyone else who wants to.

Answers welcome in comments. Good to be back.

On Christian law schools

January 23, 2013

A planned Canadian law school at Trinity Western University has come under fire for a curious understatement of the Bible’s views on homosexuality. In what I understand to be a potential violation of Canadian human rights law, Trinity Western proposes to maintain, at Canada’s very first Christian law school, a behavior code that forbids students from, among other things, “sexual intimacy that violates the sacredness of between a man and a woman.

It shouldn’t be surprising that America already has a few Christian-themed law schools, the most famous of which probably is Regent University. This rigorous 3-year program, founded to spread “Christian leadership” throughout America, has historically woefully underperformed on bar passage and stunningly merely broke even with the Virginia state average last year. Some lures of attending Regent include a robust alumni network of Grand Inquisitors for the Grand Ole Party.

And Regent is actually one of the best Christian law schools around. California’s best Christian law school achieved a bar passage rate of 38.8% over the last five years, and all of the unaccredited Christian schools mentioned in that study have bar passage rates ranging from 0% to the 38.8% figure. The Christian law schools that aren’t busy cooking the books instead just come right out and charge you first-tier rates for last-tier lifetime income returns and last-tier job placement – lucky for all the gay students who can’t go to Liberty University.

I think that the main goal of law schools, which is to teach its students the law in a way that makes them fit to represent and advise other people, is fundamentally at odds with Christianity for a number of reasons. One of them is that Christianity has never had a good relationship with education in America. From Scopes to Dover, Christians have opposed honest, accurate science education where it contradicts their scriptures. Likewise with history, especially where it concerns the principles of religious liberty and secular democracy.

I can’t imagine how the law could be any different, especially since Christianity’s aggression upon American education is so entwined with the spectacular legal battles that it has been losing almost since the beginning. How could a Christian Constitutional law professor accurately describe the last fifty years of 1st Amendment jurisprudence without completely dispiriting any aspiring young Christian lawyer who envisions the Christian America promised him by Liberty University or Ave Maria? How is a Christian law school student supposed to get a good understanding of the theories of punishment when they’ve been told all their lives that all wrong-doing is pre-forgiven, that right and wrong don’t matter if you apologize to the right judge?

The fact is that the main problem is that religious was our first attempt at law as much as it was our first attempt at philosophy, and the law has moved on. Society has decided that it is no longer in our best interest to forbid homosexuals from full participation in the economy. Society has decided that apology does not waive crimes. We’ve taken the power of sanctuary from the Church and given it to embassies. We no longer rally nations by papal bull, we do it by international covenant. Churches can no longer freely invalidate marriages or contracts. We don’t permit the Levitical sale of slaves. We now treat the very things God ordered the Israelites to do as war crimes.

A Christian law school is an Apothecary Medical School, it is an Astrological Astronomy School, it is a British government degree granted by druids. Christianity is not just a freewheeling worldview that can be easily imposed upon any body of knowledge – Christianity and its Jewish predecessor texts are themselves a legal theory. Christianity is a theory of justice which says that a third party can forgive disputes between two others on his own behalf. Christianity is a legal theory which says that the law was frozen in place towards the end of the 1st century AD and that anything further is a falling-away. Christianity is a legal theory which says that there are no sovereigns on Earth, only ethereal ones.

I don’t mean to say that I think that Christian law schools teach Old Testament law. What I think is that Christian law schools stem from an intellectual milieu which holds that everything different about American law (or Canadian law) and Biblical law is an aberration. This is the problem. This is why you will never get good results from such a university.

So you’re thinking about applying to law school: tips for new applicants and what to do when you get there

January 16, 2013

Ah, January. A new year, a new crop of thousands of college students entering their final semester, and with them, a new crop of of law school applicants. With law school applications plummeting and law schools scrambling to keep quality up and price down-ish, after a year-long barrage of articles about what a terrible return you get on your law school investment, and deans making just shy of a million a year at unranked schools, a down legal job market, the rise of legal self-help firms like legalzoom and rocketlawyer, the sudden combustion of a couple of huge law firms over the last few years, plus a lifetime of hearing jokes about what a bunch of jackasses lawyers are, you’re still apparently thinking about applying to law school!

Good call. It’s a good investment, graduate school loans are on better terms now than they have been in years, the legal job market is improving, the online legal self-help competition everyone was worried about swamping the industry is self-destructing, starting salaries for recent grads are up to $160,000 at half of BigLaw, and best of all, with applications (and average accepted LSAT scores) down, the competition you’re being graded against is dumber than it has been in years. 

So, you’re going to get a lot of swell tips about applications ranging from the obvious (make sure it’s a school you want to go to before going to it) to the impossibly, ridiculously, frankly stupidly obvious (make sure you can afford the first semester’s tuition before you go to your first class), to the false (pad your application with extracurriculers, internships, etc.). 

The fact is that the application process is very simple. Most schools use a metric for admissions that weighs your LSAT score against your GPA at a 2:1 ratio, uses extracurriculers as a tie-breaker, and requires recommendations only to prove that at least two adults on the planet like you. So don’t sweat the application.

But sweat the shit out of the LSAT.

It’s basically a mix of logic, argumentation, and reading comprehension, and the best thing that you can do to prepare for it is to take a class in formal logic, and then get an A in it. I used formal logic notation on the LSATs so much it felt like I was cheating, and I was very happy with the score. But other than that, a Kaplan LSAT course is about as helpful as getting a good night’s sleep the night before the test – which is to say, very, very helpful. Take the Kaplan course if you can afford it, otherwise get the Princeton Review books or similar book series, and use them. Then take the test on a fullish stomach after a restful sleep. Be awake for at least two hours before the test.

And then, congratulations – you’re a law school student.

So what do you do when you get to law school? Law school is something I’ve done. I’ve had semesters on Dean’s list. I’ve bombed tests and aced them. I’ve had friends self-destruct and had friends transfer into the Ivy League. There’s a lot of ways to do law school wrong, and a few ways to do it right. You’re going to get a lot of advice about how to do law school right, and I’m sure most of it is good advice, but it isn’t complete advice. There are some things so obvious that you wouldn’t think you’d have to say it, but apparently, after years in school, I’ve learned that you actually do. To wit (these are all pieces of advice I’ve seen other people at law school not follow):

  • Don’t do a ton of blow, all the time, at school.
  • Don’t go to class drunk.
  • Don’t take a final drunk.
  • Don’t tell everyone you know how much more practical experience you have than they do owing to your extensive criminal record.
  • Do your reading.
  • If you sit down to the final and really, truly, honestly know that you’re fucked beyond belief, just get up and leave. Don’t then come back, start yelling, sweep things off of peoples’ desks, have to get physically ejected from the building, then never be seen or heard from again.
  • Join the night classes and get a day job. It’s one extra year of school to look ten times more impressive to… everyone, including employers.
  • Seriously, just do your goddamn reading.
  • Brief smarter, not harder.
  • That bullshit-sounding advice you hear about networking is all good advice, and if anything, it’s understated.
  • Stay on top of your goddamn reading.
  • Don’t do adderall unless you have a prescription.
  • Don’t sell adderall to your classmates unless you’re a pharmacist and they have a prescription.
  • Don’t join the student government then tell too many people about that one time you ran from an undercover cop who saw you smoking a joint because you had a half-dozen unprescribed adderall pills in your pocket.
  • Don’t start a fight with your torts professor where, long story short, you’re not allowed to email her anymore.
  • The Socratic method is only scary if you don’t do your reading.
  • Law school is not an extension of college.
  • Law school is a trade school. Immerse yourself in your trade. Stay up-to-date on current events in the law. Spend your free time reading classics of law or about famous lawyers. Talk about it. Blog about it. Argue about it. Yell about it. Lecture people who know less about it than you do. Breathe it in, breathe it out. You don’t have to love what you do, but you’re at a point in your life where you have to know a lot about what you do.

Basically, don’t be an idiot, and do your work – advice you shouldn’t have to give that everybody needs to hear.

California court: corporations aren’t passengers

January 15, 2013

Called it: when you ride with a corporation, you ride alone. Or, corporations are people, but a briefcase full of papers isn’t a person. Or, a briefcase full of papers is a person, but not for the purposes of California’s high-occupancy vehicle laws. Or, corporations are people, and could be passengers, but California’s high-occupancy vehicle laws merely requires a bigger briefcase or more papers.

The analogy between corporations and people is imprecise, and of course it isn’t the whole picture. Corporations aren’t people, but they don’t have to be in order to fall under the ambit of some of the Constitution’s most important protections. What the California court did here was little more than to invite the accused to appeal his insignificant conviction, to play out his legal theory in the appeals courts. I give it very little chance of success, but it’s possible. What’s really important is that my prediction as to the outcome of this case was right.

“Prosecutorial overreach:” how grand theft, breaking and entering, and hacking made Aaron Swartz a martyr

January 14, 2013

Aaron Swartz died a criminal.

Not long after getting fired from his job at reddit, internet wunderkind Aaron Swartz killed himself, ostensibly over what his estate is referring to as “prosecutorial overreach.” In an age where theft of intellectual property, plagiarism, copyright violation, and piracy are more widely known as “internet freedom,” it’s hardly surprising that the internet is rallying to the cause of this narcissistic, self-absorbed, whiny little freedom fighter.

To be specific, it is the theft of tens of millions of dollars worth of JSTOR articles, breaking and entering into MIT, hacking MIT’s wi-fi network, and then distributing his stolen merchandise to whoever wanted access to it that the prosecution wanted to press against Aaron Swartz. Against these various gratuitous crimes, Aaron faced the merciful (and frankly, net profitable) penalties of up to 30 years in prison and a meager $1 million fine, against the tens or hundreds of millions of dollars worth of subscription-only content that he stole.

If Aaron Swartz had been a bank executive or other Wall Street “fat cat” accused of stealing tens of millions of dollars from an internet publisher, his suicide would have been widely regarded as a satisfying case of justice done right. But because he was a bit player in the social media industry, with ties to internet nerds’ favorite hangout, reddit, he’s being lauded as a hero. This petty criminal, who faced merely the horrifying prospect of actually facing a judge and a jury to make his case that ripping of JSTOR for tens of millions of dollars after breaking and entering a major university was somehow in service of “freedom,” who was staring down the opportunity to explain himself to the shamelessly laudatory internet pirates who worship his name, killed himself, rather than make his case.

And now he is a hero. Good for him. I suppose that beats owning up to your actions. I suppose that beats living up to his reputation as a freedom fighter. I suppose that beats doing the right thing and admitting that he broke the law.

The widespread consensus seems to be that the prosecution in Swartz’s case somehow “intimidated” him into suicide, but lets cut the crap and be honest for a second: if Swartz had been accused of stealing millions of dollars worth of tangible assets, or if his victim had been flesh-and-blood humans instead of flesh-and-blood humans who own a business like JSTOR, or if his breaking-and-entering victims had been private homeowners instead of a major university, nobody would give a second thought to the minuscule sentence he faced compared to the gravity of his crimes, except possibly to say that it was too lenient.

Internet heroism is a curious thing. It is as though any crime is pre-forgiven by internet users if it is conducted entirely over the internet. The internet is a place where a cabal of child pornographers who torment the families of dead children can become heroes just for turning their guns on easy targets like Scientology. It is a place where if you rip off a blogger’s recipe you are suddenly a villain, but if you rip off tens of millions of songs and movies, you are a freedom fighter. It is a place that canonizes petty criminals like Aaron Swartz in the name of freedom and democracy that makes no effort to convince the legislature to legalize blatant theft on the scale committed by Swartz and the pirates and plagiarists he imitated.

And for trying to punish Aaron Swartz for breaking the law, with charges far less than his crimes, the prosecution in his case now faces a petition to remove the lead prosecutor from office. For doing their job. If anything, the prosecution low-balled its charges. And it’s a shame that Aaron Swartz is dead, but if his reason is solely the charges that he faced, then he misinterpreted the mercy being shown him with such lenient charges. He proved his cowardice by tucking his tail between his legs and running when he learned that real life actually imposes consequences on you for breaking the law. And now the internet is tripping over itself to turn him into a cause celebre because of his cowardice, because of his completely unreasonable shock at realizing that, sometimes, you can actually get in trouble for things you do over the internet


January 11, 2013

There are a ton of unconstitutional ways that the executive branch (the President and his various assigns) could handle the manufactured fiscal “crisis” currently filling the Congressional paybill. The President could do what a lot of people are doing and misread the 14th Amendment’s “public debt” clause to mean that the President has unilateral power to raise the self-imposed “debt ceiling,” or even to directly cut and authorize checks drawn on the Federal Reserve or on the Treasury to pay outstanding bills. The Treasury department could do likewise. Or, we could just default on or obligations and let the chips fall where they may.

But there is another way. A way that started as a half-tongue-in-cheek but has become a startlingly plausible alternative to letting Congress play out its sectarian shennanigans until the same thing that always happens happens (we hit the arbitrary, self-imposed deadline and then extend it a few months). A way that just screams “crazy enough to work.” We could just mint a $1 trillion (or $2 trillion, or $10 trillion)-dollar platinum coin, drop it in the ol’ piggy bank, and use it to pay down existing debts or extending our borrowing power in the future.

Consider it quantitative easing on steroids. Instead of diverting the money from elsewhere, at the expense of the very programs that are at stake in the existing debt ceiling fight, the money comes from where all money comes from: nowhere in particular.

The easy question is: is it legal? The short answer is, yes, but it’s complicated why it’s legal. The Constitution authorizes Congress and Congress alone to mint and produce currency. But the Constitution, and there’s too much caselaw agreeing with this point to even know where to begin citing, permits Congress to delegate its authority to various federal and even some state agencies. One of those agencies, staffed by executive appointment with the advise of the Senate and subject to Congressional funding allocaton, is the Department of the Treasury, one of whose many tasks is to oversee the creation of currency (not to be confused with the creation of money). Down to the size in millimeters and metal composition ratios, there are very close controls on the standard denominations.

But there’s on ambiguous coinage allocation: platinum coins. Congress saw fit to create, under 31 USC §5112, the discretionary power of the to Secretary of the Treasury to “mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.”

In short, whether or not the trillion-dollar coin gets minted is legally up to the sole and complete discretion of the Treasury Department. In practical terms the Treasury would probably not take such extravagant liberties with its currency powers without the advise of the President, the Congress, or both, but legally speaking, Congress has fully delegated its authority in minting to the Treasury, and as part of that delegation, it let the Secretary determine the value of platinum coins at the time of their minting.

Why would Congress do that? Because creating discretionary powers in fiscal bodies is a really good way to give them power to deal with sudden catastrophes. Probably what Congress had in mind was something like, suppose there were a sudden global shortage either of copper or of liquidity in copper assets. Better give the Treasury the power to start churning out one-cent platinum coins at a moment’s notice until the supply chain settles down. Seems sensible enough, but unfortunately, when you make open-ended crisis management rules, you create open-ended crisis management rules. The Treasury currently has the effective power to #mintthecoin at its sole discretion, thanks to a well-intentioned Congressional delegation written by people who, shockingly, did not foresee the monumental incompetence that has drawn us once again to the shores of sovereign insolvency.

So yes, it is legal. Is it a good idea? I haven’t got the economics acumen to answer this clearly, though I invite comments on that point. One thing I can say, though, is that I am skeptical of the supposed inflationary apocalypse that would result, for a few reasons. Suppose we drop a $2-trillion platinum coin into the Treasury tomorrow, apportioned specifically for existing liabilities, ie, bills the Congress already has on its tab. That means that money going out to pay those debts would not really be any new money, it would merely be currency representing amounts already accounted for by the various states, firms, and individuals (a huge fraction of America’s sovereign debt is owned by private citizens in the form of T-bills and the Social Security trust fund, for example). But it’s still money that, originally, would have to be diverted from elsewhere, that is now coming from nowhere in particular (which we do in slow-motion in normal economic circumstances).

Against the alternative, though, #mintthecoin is fast becoming a perfectly good idea. Congress has proven incapable of addressing the issue; like bad law school students, they let the paperwork get closer and closer to the deadline, they stress out over it and raise hew and cry over basic principles of government, then it comes down to the wire and they push the problem off by asking the global markets for a brief extension while the various sides recalibrate their political schemes to better blame the other party for the next round of premeditated negotiation failures. I say, concede that Congress has backed the economy into a corner, concede that representative democracy occasionally yields such absurd results as this, mint the coin, and then let Congress explain what its better alternative was. As Harvard Law School’s resident internationally-renowned sage of the law Laurence Tribe explains:

 This is a situation where the political and economic considerations, not the legal considerations, have to drive the decision-making about this option. It’s certainly a lot better from just about every perspective than having the nation stuck on either horn of the very real dilemma you outlined below, which I agree offers no plausible way out as long as enough leaders in Congress insist on playing Russian Roulette with our economy and risking our full faith and credit by using the debt ceiling as a bargaining chip as they are threatening to do.