Archive for the ‘Uncategorized’ Category

Tea Party values

Thursday, October 23rd, 2014

It’s rare for me to rely on anyone else’s blog post for the text of my own, but I thought Paul Bland, Executive Director of Public Justice made some great points recently in his article about the Tea Party–those staunch Constitutional purists who tend to toe the Republican line–and the “arbitration first” culture of modern business. Arbitration is a contractual dispute-resolution strategy that is used with increasing frequency, often in non-negotiated contracts like credit card agreements. It’s awful for consumers. Want to opt out? Just give it a try, and see what happens.

Bland notes the following:

A central aspect of the Supreme Court’s jurisprudence around forced arbitration is disdain for the right to a jury trial. Does a given clause require arbitration of a particular claim or not? According to the Supreme Court, courts should strive to read arbitration clauses to find that claims must be arbitrated. This amounts to a presumption that people have waived the right to a jury trial. With every other constitutional right one can name, there is a legal presumption that people have not given it up unless high hurdles are proven. Not so with the right to jury trial, according to the U.S. Supreme Court.
When Bland talks about “forced” arbitration, he means arbitration that is required by various contractual agreements, and it’s true that anyone who signs on to an arbitration agreement generally does so after having an opportunity to review the agreement that would require it. But, when those agreements become commonplace, how much is the consent to arbitration a choice and how much a matter of necessity? In our modern consumer culture, cash payments will get you only so far. You can’t buy from Amazon by sending a check.  No one has said that Tea Party advocates are lining up behind arbitration clauses, but they do have a tendency to support the Republican “business-first” party line, and Bland’s article questions why they would.  It is a good question, as Bland notes:

Tea Party voters are famously interested in American history, and value it. If one looks at the views of the Founding Fathers (as opposed to the views of banking lobbyists) one sees an enormous reverence for the jury. The Seventh Amendment to the Constitution enshrines the right to a jury trial, and all of the original state constitutions did the same thing.

The Declaration of Independence specifically notes that it was deeply unfair for the king to appoint judges, where the king could also fire them if they didn’t rule as he likes. (If that doesn’t sound like forced arbitration to you, then you haven’t been following this area of law very closely.) The Declaration prescribed a remedy for this ill: a robust right to a jury trial. I do not understand how jettisoning this key element of American history in favor of corporate chosen tribunals is in any way consistent with Tea Party values.

Those of us who feel that arbitration is over-used–and you can definitely count me among that number–may find a certain empathy with the Tea Party, oddly enough. Or at least, we may find a common enemy in the increased use of arbitration.

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Unintended consequences

Friday, August 15th, 2014

“I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” – Abraham Maslow

As one who is frequently involved in cases dealing with civil rights—those Constitutional rights of free speech and personal integrity that are the basis of so much of our law—I have been shocked by the recent developments in Ferguson, Missouri. I’m sure there’s little need to recap all that has occurred, suffice to say that protests over the shooting of a young, unarmed African-American man by a Caucasian police officer have caused tensions to boil over. Whether or not the shooting was justified is not the point of this post. The nature of the police response is.

Since the protests began, the local police have rolled out a variety of military hardware the likes of which are rarely seen here. Body armor, tear gas, machine guns, and armored vehicles have become the order of the day. According to a lot of people who should know—veterans of the Iraq and Afghanistan wars—some of this stuff wasn’t even that frequently seen in those hot spots. Add to this the confrontational, violent approach of the police forces, and it seems only to have escalated the situation.  A no-fly zone with a media blackout (complete with reporters being arrested) completes the ugly, ugly picture.

So where did all this come from? Well, the equipment is military surplus. The tools of combat that were intended for use overseas are now staying here. As the Department of Defense tries to stuff the genie back in the bottle, the hardware gets shipped to local police departments. And when you’re talking about city police departments trying to control drug cartels and heavily armed gangs, this might make some sense. But it’s a whole different thing when you’re talking about a crowd of citizens armed with nothing but outrage. Guns don’t quell feelings of injustice.

But the bigger question to me is not the source of the weapons, but the source of the will to use them. When did the streets of Ferguson, Missouri become the streets of Baghdad? And is there a connection? Because I think there is. In the days following the World Trade Center attack, drawing the sword became more important than figuring out the proper target. The rights of anyone and everyone took a backseat to drawing blood. Congress passed the Patriot Act, which gave the government all new powers to monitor its own citizens. A callousness toward rights anywhere creates a callousness toward rights everywhere. It’s an unintended consequence, and it’s happened before. Sending military-grade weapons to police forces that don’t need them blurs the lines between soldiers and cops; between those in real combat and those who are supposed to protect and serve.

In the modern era, the role of the soldier has certainly changed. Given the “peacekeeping” aspect of so much military action these days—making war, not on nations, but on particular figureheads—soldiers may wind up acting more like policemen these days. But the converse should not be so. We don’t need soldiers on the streets of our cities. We need respect for the rule of law—including those individual rights—and we need it from those wearing the badges as much as from anyone.

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The NCAA “protection” racket

Tuesday, August 12th, 2014

Around three years ago, I wrote about a lawsuit brought against Electronic Arts for its use of the likenesses of collegiate athletes in its video games. Specifically, Sam Keller, a former quarterback for Arizona State and the University of Nebraska had brought suit against EA for its use of his image in its NCAA Football 2007 video game. Keller’s suit was consolidated with that of Ed O’Bannon, a former UCLA basketball star and the new name plaintiff, and ultimately, the case against EA was unsuccessful. The judge hearing the case, Hon. Claudia Wilken of the U.S. District Court for the Northern District of California tossed the case against EA on the grounds that EA did no more than exercise the rights granted to it in the license it purchased. To all intents and purposes, it was an innocent purchaser just trying to get things done. But that didn’t mean that the case was over or that there wasn’t still a villain of the piece.

Step into the box, everyone’s favorite punching bag, the folks who brought you the Bowl Championship Series and virtually everything else that sucks about modern collegiate athletics, the National Collegiate Athletic Association. Yes, welcome to court, NCAA.

NCAA Bylaw 2.9—headlined “The Principle of Amateurism”—states: “Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived.” Nothing wrong with that. The “student” comes first in the “student-athlete” designation. But then the bylaw fires of this whopper: “[S]tudent-athletes should be protected from exploitation by professional and commercial enterprises.” As has become continually clear in the course of the O’Bannon litigation, the NCAA considers “professional and commercial enterprises” to include just about every money-making enterprise except the colleges and universities making huge amounts of money off of their football and basketball programs and the NCAA itself. You can’t do that to our athletes. Only we can do that to our athletes.

According to the NCAA, paying athletes for the use of their likenesses amounts to exploitation, and, as a result, it is justified in preventing its member universities from paying any portion of revenues to its student-athletes. (If this is exploitation, my only question is “where do I sign up?”) In the course of trial, Judge Wilken appears to have been a bit skeptical about this explanation, and the proof came in her opinion issued August 8.

After acknowledging that there was some substance to the NCAA’s argument about maintaining an actual academic, as opposed to just an athletic, environment for student athletes and that players getting paid huge sums of money would probably hamper any effort to integrate them into the larger body of starving college students, Judge Wilken nevertheless held that banning any payment at all to students was not the least restrictive way for the NCAA to achieve its goals. It could still put out a quality athletic product and look out for the interests of student-athletes without preventing them from receiving any payment, at all. Nevertheless, Judge Wilken drew the line at allowing student-athletes to receive money for endorsements, holding that this proposal from O’Bannon and his counsel did not offer a less restrictive way for the NCAA to achieve its goals. So, in other words, a lot of the real money that athletes might make is still off the table.

It’s a victory of sorts for student-athletes, but it still leaves much of the paternalistic regime that the NCAA enforces in place. An open marketplace for student-athlete endorsements is, perhaps, not the best thing for the futures of those young men and women, (images of someone like Johnny Manziel lending his name to ads for Harrah’s casino or Rick’s Cabaret come to mind), but the suggestion that a 20-something who will likely be a multi-millionaire within the next few years is somehow unfit to determine where his own picture gets posted is troubling. With as much revenue as athletes generate for their institutions–and as much as the NCAA spends on lobbying and PR–the athletes shouldn’t be getting left out in the cold.

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Scary times…..

Monday, March 24th, 2014

I don’t claim to be a student of world history or politics, but I do remember my high-school studies in world history, and that’s why Vladimir Putin scares the hell out of me. Because Putin is the shiny new face on, not just the old Soviet Union, but the ethnic philosophies that Hitler espoused after he rose to power with the Third Reich. Yes, I’m aware of Godwin’s Law, but hear me out.

Putin is ex-KGB. Everyone knew it when he rose to power, but he seemed to be a benevolent version of it. He was invited to join in with G7 and NATO discussions, and the belief was that he represented the face of a kinder, gentler Russia. But the arguments Putin is putting forth these days smack of the same stuff that was used to annex portions of Czechoslovakia in the years leading up to World War Two. Back then, Hitler argued that the Sudetenland—the western-most portion of Czechoslovakia—was heavily populated with ethnic Germans and should be annexed as a part of Germany. This is, of course, the exact same argument Putin has used for annexing the Crimea. Hitler argued the same thing with regard to Austria before annexing the entire country. It remains to be seen if Putin will do the same with the rest of Ukraine, but it doesn’t look promising for anyone who holds peace as a priority.

Dealing with the devil carries a cost. Putin became a part of the international community and received legitimacy from U. S. administrations. It seems that no one knew he would become this. These are scary times we live in.

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The Blockbuster Decline (or, a Unified Theory of Netflix)

Thursday, December 12th, 2013

In the last month, the once mighty Blockbuster Video chain has gone pretty much entirely out of business.  Oh, there are one or two holdouts, but the business that once was is basically no more.  No more driving to the store on Friday evening and picking up the action flick du jour.  It’s a bit of a surprising turn for a business that was thriving ten years ago.

But, of course, times changed.  Netflix became a major competitor to Blockbuster as customers avoided the trip to the store and the lines in favor of just walking to their mailboxes.  So what if the drive is a short one?  The walk is even shorter.  But that’s not what killed Blockbuster.  It managed to co-exist with Netflix’s mail-out DVD business, but the whole house of cards came crashing down with the advent of streaming video from a multitude of sources.  And it got me wondering, what’s the difference?  The answer I came up with was instant gratification. 

I always noted a tendency in myself whenever I filled up the old Netflix queue with DVDs to be mailed out, and I contrast that to my tendencies when filling the streaming queue that I currently have.  It made me think there are two sides to every subscriber (or at least, to me as a subscriber).  The mail-out subscriber has a particular image of himself—erudite, interested in fine film and artistic quality.  The mail-out subscriber is the one who queues up foreign films, classics, and Oscar nominees.  He seeks out challenging material that will make him think and that displays the best moviemaking has to offer.  And he’ll probably almost never watch any of this stuff.

And then there’s the streaming subscriber who can barely be bothered to put on pants and shake the Cheetos dust out of his t-shirt.  He wants to see something funny or watch people die, and he wants it right now.  He’s not willing to wait the three or four days it takes for the movie he wants to see to get mailed from Netflix’s distribution warehouse to his home, so he’s willing to go hit the local vid store if that’s the only way to satisfy his craving.   But, hey, now there’s streaming!  And that means those pants can stay in a crumpled heap on the bedroom floor, and he can start in on the Doritos, while still getting his movie fix. 

Instant gratification is what separated the new competition from the old for Blockbuster, and I think it’s what signaled its demise.  What does this have to do with law—the ostensible purpose for this blog?  Well, not a whole lot.  I could say something about patience being a virtue for an appellate lawyer because you never know how long an appellate court is going to take to decide your case, but that would be a stretch.  Truth is I just thought it was interesting and a real sign of the technological changing of the guard we see so much of these days.  Technology has made my solo practice possible (or at least, much more feasible), and our court system is continuing to adapt it to new use.  For lawyers, I think the new frontier is an electronic one, as courts push firms to modernize and likely as clients insist on the efficiency that technology can bring about.

UPDATED:  Yup.

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What we become….

Tuesday, December 10th, 2013

A few months ago, I saw the movie Zero Dark Thirty.  If you’re not familiar with it, it’s an account of the hunt for Osama bin Laden, beginning with the World Trade Center attack in September of 2011, through his eventual killing.  (Incidentally, if you’ve not seen the movie, but want to, stop reading now.  There are spoilers ahead.)

 The movie is fascinating.  It presents a behind-the-scenes picture of the hunt.  Frequently, it’s not pretty, but neither was what bin Laden orchestrated.  Let me set a few things straight from the outset.  I think bin Laden “needed killing.”  What bin Laden did—financing and planning the destruction of the World Trade Center in New York and the murder of thousands there and elsewhere—marked him as less than human in my mind.  I shed no tears when his death was announced.

My interest, however, was in what the hunt did to us.  Zero Dark Thirty presents an unflinching look at the start of the hunt.  There are scenes of what has been euphemistically labeled “enhanced interrogation techniques.”  Those might involve leaving a subject of interrogation strung up by his arms overnight, with loud music blasting at him, depriving him of food and water, and allowing him to soil himself.  These scenes are particularly difficult to watch because we know that they are likely real.  And we know that the things depicted were done in our name.

 In the movie, unlike in the real world, there was no taunting from bin Laden.  His face is barely seen.  The video recordings that we saw on the nightly news make no appearance.  The film is journalistic, but with a definite slant.  Even though the story is about bin Laden, what he did, the hunt for him, the events of September 11, 2011, and other terrorist episodes are told in black screen or with short, episodic revelations.  The villain of the piece, himself, barely shows up at all. 

 Because, ultimately, it’s not about the hunt for bin Laden.  It’s about what the lust for . . . justice . . . vengeance . . . does to us.  The final shot of the movie is of the protagonist, who has spent her entire CIA career hunting bin Laden, with tears rolling down her face.  They don’t look like tears of joy. 

 This is not to say that justice never wears black.  It’s only to say that justice can come at a cost.  Sometimes, that cost is personal and extraordinary, and it reflects as heavily on the one who extracts it as from the one receives it. 

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What drives us?

Saturday, June 29th, 2013

The downside of being an appellate lawyer is that your clients don’t often get to see how hard you fight for them. It’s a technical practice, devoted to battling legal interpretations, and clients usually either don’t understand it or just don’t show up, particularly when the fight is in the trial court. Yesterday, in San Antonio, I had the pleasure of representing a client who showed up to that trial court, and I got to explain to her what it was all about, albeit after the fact. It was good. This lady lost her husband, and I had the privilege of being her hero, if only for one day. This is why I do what I do.

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What is a whistleblower?

Monday, June 24th, 2013

In 2002, Time magazine named “The Whistleblowers” as its “Persons of the Year.”  It was a tip of the hat to insiders who revealed shenanigans at Enron, WorldCom, and even the Federal Bureau of Investigations.  These insiders were held up as heroes, finding “the strength to stand for what’s right.”  The law, at both the federal and state level, protects whistleblowers, at least when they’re calling out the government for wrongful acts.  And there’s a good reason for that—because these are people who are uniquely placed to know of wrongful activity and expose it to public scrutiny.

Enter Edward Snowden.  In case you’ve been hiding in a cave or haven’t picked up a newspaper in weeks, Snowden is a 30-year-old Booz Allen Hamilton contractor who, until a few short weeks ago, was doing work for the National Security Agency.  In the course of his work, Snowden learned that the NSA was keeping tabs on internet and telephone use by thousands of individuals.  Snowden released this information to Glenn Greenwald, a reporter for The Guardian and claims to have much more in store for future release.  The whole thing has caused a huge uproar, with bloggers and talking heads at both ends of the political spectrum condemning the NSA and calling for the government to leave Snowden alone or aiding his defense and others condemning Snowden, while calling for him to be brought to answer for committing a crime.

And thus has commenced a game of global “whack-a-mole” with Snowden playing the part of the mole and the United States government wielding the mallet.  Snowden was stationed in Hawaii with Booz Allen—a spell of employment that lasted only three months, though he reportedly planned his leak of information for two years (suggesting that he took the job in order to gain access to the leaked information)—but then fled to Hong Kong and later to Moscow.  (As of this morning, Snowden was scheduled to be on a flight from Moscow to Cuba but failed to appear for the flight.)

So what is Snowden?  Is he a whistleblower or a college dropout unilaterally making up security policy?  That may require a bit of an exploration of what whistleblowing actually is.  I think of it as a form of civil disobedience—violating the law in the name of a greater good.  But the tough part of civil disobedience is that you have to suffer the inevitable crackdown before being vindicated by history.  Before he became a worldwide icon and recognized as an historically significant figure, Martin Luther King, Jr., went to prison for breaking the law.  He knew this was the price of disobedience.  Gandhi was imprisoned in 1922, 1930, 1933, and 1942 for his protests.  Snowden claims to have the courage of his convictions, but he certainly hasn’t showed it yet.

And that’s what bothers me about Snowden.  If he were so convinced that the government’s acts are egregiously wrong (and, incidentally, I am not calling them right), why run?  You can tell a lot about a man by the company he keeps, and, so far, Snowden has sought asylum in China, Russia, and Cuba, none of which is exactly a bastion of free speech or open government.  The true whistleblower throws him or herself on the mercy of the courts of law and public opinion.  Snowden appears not to have the courage to do that, and until he does —until he acknowledges that he committed a wrong even if he did so to out a greater one—he’s no MLK or Gandhi.  He’s no whistleblower, at all.

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Trust me, I’m a lawyer….

Monday, March 26th, 2012

You’d think that lawyers are the only people on Earth who don’t hear the phrase “Trust me, I’m a lawyer.”  But, in fact, we probably hear it more than most.  From whom, you ask?  Legal marketers.

Recently, I’ve been contacted several times by an outfit called Yodle.  Yodle performs marketing services for lawyers and others.  And, if what I’ve seen is so, it does it very badly.  Because Yodle takes a classic one-size-fits-all approach.  Now, understand that my own experience with Yodle is based on a discussion with one of its marketing representatives who kept insisting that I could get more personal injury cases and appellate cases through a Yodle website.  (Except that she couldn’t pronounce the word “appellate” properly.)  I’ll grant you that my website could probably do with some more traffic, but I’m also pretty convinced that anyone who would hire me strictly based on my website is probably not someone I want to work for.  Legal representation is personal representation.  The person who stands up in court and speaks for you is, for all intents and purposes, YOU.  So make sure he or she is someone you trust.

But the thing that really got me about Yodle’s whole hard-sell was that the salesperson—I won’t give her any other title (sorry to any salespeople reading)—was that she told me that she was a lawyer, so she understood my problems and concerns.  But how is it that she knew all those things without actually practicing law on a day-to-day basis?  How is it that she knew the stresses and strains of running a law practice?  And how is it that she knew the particular concerns of a small-firm (in my case, tiny firm) appellate practitioner?  Answer:  she didn’t.  She had no idea.  None whatsoever.

That’s where lawyers can get taken in as easily as anyone else.  When someone says he’s like you, you want to believe him.  When he says he knows where you’re coming from, you want to sign on.  But, if it’s just a sales pitch, you need to look deeper.  Ask questions.  Probe.  I turned Yodle down before I even realized that my good friend Mark Bennett had heavily slagged them on his own blog.  Had I done my research first, that’s a few minutes of my life I would have had back.  When someone says “trust me,” your first move should be distrust.  Trust is earned.  Not asked for.

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The Contemporary Constitution

Monday, March 12th, 2012

Norm Pattis writes today about Hon. J. Harvie Wilkinson, III, and his opinion on opening up the legal can of worms that is is the U.S. Constitution.  Judge Wilkinson, in an op-ed piece in the New York Times, suggests that all the debate over the meaning of the Constitution–and, I suppose, the increasing amount of it every four years–really does not serve us well.  Judge Wilkinson argues that elevating every argument to a discussion of Constitutional interpretation and values risks either demeaning the value of fully debated and vetted federal legislation or devaluing the laws of state and local communities.

Norm takes issue with the Judge’s piece, and, I think, understandably so.  While Judge Wilkinson argues that much of what passes for constitutional debate is really political argument, Norm argues against the kind of conservatism advocated by Judge Wilkinson because it would “keep the Constitution in its place;” that is, tied up in interpretations that are themselves governed by opaque rules of interpretation.  As Norm correctly and poetically observes, “Each generation recreates the document for itself.”  No one owns the law.

Norm’s position is one I’ve stated myself on this blog.  Nevertheless, I’m sympathetic to the basis for Judge Wilkinson’s argument.  To me, the real danger lies, not in the elevation of political argument to the constitutional level, but of the dragging down of the Constitution to mere politics.  How many times in recent years have we seen proposals for new Constitutional amendments, be they to define marriage, allow school prayer, require a balanced budget, or–let’s face it–see to it that Arnold Schwarzenegger is eligible to run for President?  The trend in our national discourse has been to have more and more of these proposed amendments come along.  And that says to me that the Constitution is being regarded as the ultimate political end run.  Tired of debating something? Get a constitutional amendment passed, and kick it all over to the courts.  Let them deal with the fallout.  Even if you can’t get it passed, you’ve taken an uncompromising position and can’t be accused of being wishy-washy.

The Constitution should be interpreted by each generation, but its interpretation should be governed in light of its history.  It doesn’t exist for the transient political whim of the moment, and I like to think that is what Judge Wilkinson was getting at.  There is always going to be a tension between fundamental rights and lesser ones when we examine them through the lens of the law.  As Justice Brennan once wrote, “the demands of human dignity will never cease to evolve.”  That is reason enough for flexibility in our Constitutional interpretation.  But present passion should always be safeguarded by long-term perspective.  The values enshrined by the Constitution are contemporary; but the underlying principles are also eternal.

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