Overstepping Bounds & Constitutional Conventions

November 23, 2010

This past week, United States Supreme Court Justice Antonin Scalia spoke at the University of Richmond about originalism (the method of Constitutional interpretation he subscribes to, in which the language of the document is given its most literal meaning).

In Justice Scalia’s opinion, the Founders of this country spoke very clearly through their Constitution and it’s not up to us to re-found America or its laws; rather, our task as citizens is to uphold those original Constitutional values and live according to them. Treating the document as something living and changeable, Justice Scalia said, allows “five out of nine hotshot lawyers to run the country” (presumably by arguing for whatever whimsical interpretation of the Constitution most fits the momentary needs of their client).

Justice Scalia also criticized the broadening interpretation of the 14th Amendment’s due process clause, which guarantees access to the process of law (courts, judges and the like). Lately, he says, that clause has been expanded well beyond its intended scope to guarantee particular freedoms, though it was never meant by the Founders to be a guarantee of liberties; only a guarantee that liberties wouldn’t be taken without some kind of legal process.

Messrs. Washington, Jefferson and Adams lived in a world in which the English monarch could confiscate their lands and holdings at will; they wanted their new government, should a similar need to confiscate arise, to at least be accountable to some fair judicial process, pre-confiscation, wherein the owner of requisitioned things could plead his case against the requisitioning.

Specifically, Justice Scalia spoke against the applicability of the due process clause being enlarged to fit abortion. In his opinion, the clause doesn’t guarantee the freedom to have abortions… only the freedom to not be deprived of them without due process. Implicitly, then, people can be deprived of the freedom to have abortions so long as the deprived have their day in court first. Justices should uphold the original meaning of the Founders’ Constitution, Justice Scalia believes; they shouldn’t take it upon themselves to issue rulings which extend its reach to areas it was never intended to reach, or which force parts of it to perform functions they were never intended to.

People do, and probably always will, disagree with Justice Scalia. They argue that judges can’t rely on the intent of the Founders in coming to conclusions because their intent is almost impossible to guess at. They lived centuries ago, in a world very different from ours. Plus, a good number of words and grammatical constructions don’t have the same meaning today as they did in 1776.

Still, there is one intention of theirs which is very clear today, and which is easily identifiable because it’s set down in all of our founding documents and is one of the most essential tenets of our government: there are three branches of government and they operate independently of each other, so that any one might check and balance the other two. No one branch was meant to have more power than another. Revolutionary Americans fought a war to throw off one monarch, and they meant for their founding documents to guard them against any one branch of their new government taking too much power and becoming a new monarchy.

In that regard, Justice Scalia, politically correct or not, is absolutely right. It is not for one branch of government to do another’s job. If there is one founding intent we can be sure of, it’s that government is limited in this regard: each branch does its own work, and nobody else’s. And extending the reach of the Constitution, when and if necessary, is not the judicial branch’s job.

Are there likely some things in our founding papers which are outdated? Probably. Provisions dealing with African-Americans and women come to mind most quickly. Are there some portions of our Constitution which should be changed or made more modern? There probably are, which is why that document includes a mechanism for revision: the Constitutional amendment… not the courts.

It’s possible that the particulars of the Constitution (though never its core ideals) have to change and adapt over time to address “advances” in culture and technology. What is equally apparent is that, when it comes to how those changes are effected, Justice Scalia is dead-on: it’s not the courts’ job to make them. That task belongs to the legislature, and to the citizens of this country. If the Founders were clear about anything, it’s that.

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Lawyers, Inc.

November 2, 2010

Slate recently ran a bit about disillusioned law students: specifically, those who left stalled (or eviscerated) careers mid-recession and escaped to law school, counting on “a three-year fast track to a remunerative, respectable career.”

LSAT takers increased by almost twenty percent over the last few years, and law school applicants followed suit. As a result, there are more lawyers being churned out than there are jobs for them. While the number of law degrees awarded has steadily risen, the number of people working in the “legal services industry” has shrunk.

Newly-minted attorneys are upset; they feel taken advantage of. They think, says Slate, they were lead to believe their law degrees would be instantly worthwhile investments, quickly paying off in cars and club memberships. Some of the recently disillusioned are speaking out loudly against the establishment and the American Bar Association, which accredits law schools, and others have – imagine! – taken to litigation.

One, Kenneth Desornes, has asked a bankruptcy judge to hold his law school accountable for his debt because it “knew or should have known that [he] would be in no position to repay those loans.”

Knew or should have known? What of Mr. Desornes? Does he bear no responsibility for sailing his own financial ship? We can safely assume that, having applied to law school, he first earned an undergraduate degree. Was this college graduate who planned to practice law not sophisticated enough to realize the danger of borrowing over one hundred thousand dollars with no guaranteed return? Given his dearth of foresight, ignorance of consequence, and obliviousness to reality, maybe it’s best Mr. Desornes is no longer interested in practicing law.

Adults attend law school. Every law student is a college graduate, and each wants to earn a law degree. These are sophisticated (in theory) people who want to make their living in a comparatively intellectual, high-end market. And yet they feel taken advantage of because basic mathematics have failed them? Or rather, because they’ve failed basic mathematics? Because they didn’t realize that huge loans + no guaranteed return = not a sure thing? Because they tried to grab hold of that “three-year fast track” and it’s not going to be as easy as they imagined?

I’m a law student because I want to be a lawyer, because there’s nothing else in the world I’d rather do. If a law degree cost one million dollars, I’d borrow one million dollars and spend the rest of my life happily paying it off doing something I love.

If you don’t feel the same, re-consider your LSAT registration. It’s not too late. Withdraw your application. Ask for your tuition back. There are too many law students grabbing after that mythical “three-year fast track,” and as a result that track is being over-crowded out of existence more every year.

Slate points the finger halfway at the American Bar Association, for allowing so many law schools to exist. Law schools make money because they have very little start-up cost; certainly much less than a medical or engineering school. So many schools mean many with very lax admission standards, and more lax admission standards mean more lawyers produced yearly. This means both more incompetent lawyers, which is bad for the public, and more applicants per job, which is bad for the serious students.

Certainly the ABA has played a role. Stricter standards for accrediting law schools would mean fewer law schools, higher admissions standards and, as a result, fewer and more qualified graduates. The reputation of the profession would increase and the employment situation might begin to right itself. A law degree would stop being a tawdry commodity and begin to look again like a lofty, noble thing.

But does any of that excuse a sophisticated college graduate, who imagines he’s fit to practice law, from the consequences of his own, freely entered-into actions? No.

What we all call “legal thinking” boils down to very basic cause-and-effect: if A happens, then B must happen also, and C must be the result. If I drive too fast I’ve breached a duty, and thus I’m liable for the collision. If you take out loans to finance a dream and you’ll be happy living that dream, regardless of whether you live it in poverty or wealth… take out those loans. If you take out loans because you’re betting on quick money and you don’t consider the risks and their proportionality to the odds of reward… well, practicing law probably isn’t for you, anyway.


A Learned Hand

October 3, 2010

An anonymous member of the Missouri Bar, recently questioned about his elegant signature (well-known and easily identifiable to local jurists), had this to say:

“We call the law a learned profession, and the rules of ethics by which we govern it place a great deal of emphasis on the appearance of propriety. It is near-impossible to appear either learned or proper when you sign your name like a child.”  


Lawyer Makes Good on Royalties

September 30, 2010

Mitchell, Silberberg & Knupp’s recently hired standout lateral Greg Olaniran makes a good amount of money the same way Mr. T. does: syndicated television royalties.

Mr. Olaniran practices in that little-known but highly specialized, and very lucrative, area of the law which deals with the $200 million paid annually by satellite and cable television companies to use previously copyrighted television broadcasts. His past and current clients include Disney, Paramount, WWE, Sony, Universal, Lion’s Gate, NASCAR, and Animal Planet.

The specialty is known a “compulsory licensing” and Mr. Olaniran got into it by working up patent infringement cases against upstarts like Napster, which is representative of a class of technology start-ups which he thinks take illegal liberties with the property of copyright owners for the sake of quick profits.


Justice Is Blind, Decorum Is Not

September 7, 2010

There’s a place, the Wall Street Journal reports online today, where first impressions are even more important than at job interviews: court.

Doctors have, the author says, appeared to testify in their own malpractice trials wearing blue jeans, and one anonymous California judge admits to wardrobe considerations in her rulings: sloppy dress might bolster a case against a father accused of child neglect, she says; likewise, expensive shoes and earrings might undermine a lady claiming financial straits.

Jurors are likely even less judicial. Juries pass their service by hearing evidence, considering facts, and observing participants. That means demeanor, attitude, posture, and wardrobe. Is the alleged drug dealer in a coat and tie… or does he look like a drug dealer?

“Jurors notice everything,” says Patricia Glaser, a prominent attorney who counts Kirk Kerkorian and Conan O’Brien among her clients. “They notice the wedding ring, they notice if your hair is parted on the right or left, they notice if it’s an Italian-cut suit or a Brooks Brothers, they notice if your shoes are scuffed every day, just like they notice if you’re on time or not.”

Though it’s nice to see this article written, it’s disheartening that it had to be. If nowhere else, a courtroom in which your interests are being decided seems the place to look your best, or to at least do your best to look better than your worst. If not out of respect for the courtroom and the American judicial process, do it for yourself and your case.

John Gotti: Gambino boss looked the part.


Brooks Bows’ Patent Problem

September 2, 2010

A Brooks Brother shop in New Jersey found itself an unexpected pioneer in stormy legal seas recently when patent attorney Raymond E. Stauffer happened by and saw a fleet of sharp-looking bow ties on mannequins in storefront display windows.

The problem? The neckwear’s decoration: expired United States patent numbers. U.S. patent law prohibits expired patent numbers being used on currently-for sale products. Mr. Stauffer sued the retailer in federal court, with unexpected consequences… a swarm of similar arose, attacking products from pop-up turkey timers to toothpaste. Each product under attack is alleged to come in a container bearing, or be imprinted with, a U.S. patent number which is expired.

Previously, companies found to have thus marked their products were considered “anti-competitive” and required to pay a $500.00 fee for misleading consumers. Now, the rule has become $500.00 per offense. Conceivably, that means that every mis-marked turkey timer out there could cost its maker $500.00.

It’s a surprising development in patent law, where the expired patents are generally of little interest: products come out and are patented and their packaging is marked with that patent, which expires with little fanfare over the years; the expiration is rarely a memorable enough occasion to remind anybody to get a new one, and the product continues to be sold bearing the old number.

Large holding companies, which might make and sell everything from lip balm to contact lenses, are especially worried: they make so many products and hold so many patents that it’s nearly impossible to stay on top of what is expiring, and when. Further, most manufactured good hail from overseas, where they’re stamped out by molds in factories. Foreign manufacturers aren’t overly eager to switch out all of their product molds, which are imprinted with the old patent numbers, for new molds, which would print products with the new numbers.

Would-be plaintiffs have so far taken advantage of federal whistle-blower laws. That set of laws allows private citizens to file claims on behalf of the government of the United States, and evenly split any return.


WASPs Take Flight

May 25, 2010

Assuming Elena Kagan, President Obama’s anointed successor to Supreme Court Justice John Paul Stevens (himself an illustrious knight of the Protestant realm), is confirmed to the Court, she will become part of the first Supreme Court entirely devoid of WASPs.

Of the 111 (mainly) men and (less often) women who have served as Justices on the high court, nearly a full third have been white, Anglo-Saxon Protestants… what sociologist E. Digby Baltzell identified in 1964 as the American ruling class. A good amount of Catholics have cropped up lately, notably Justice Antonin Scalia, and the Jews have enjoyed a foothold for a while, starting with Louis Brandeis. (Kagan herself is Jewish: a member of the group most often cited by sociologists like Baltzell as having supplanted the Protestants in wielding influence disproportionate to their numbers.)

Of course, the North American WASP has been a species long declining, thanks in part to what researchers call “generational degeneration.” Centuries ago, a strong Protestant work ethic and Yankee ingenuity made for a lot of fortunes earned; entitled heirs made for a lot of waste. Jamie Johnson, heir to the Johnson & Johnson fortune, explains: “The generations of affluence bred a certain kind of casual, passive approach to life and wealth building. Lots of people just got lazy.” Southern money might put it differently: fat dogs don’t hunt.

So old-line money and its (sometimes honorable, sometimes insular) values are being swept away, and in their place we expect a shiny new meritocracy, exemplary to the world. It’s not about who you know, but what you can do! Our leaders, including Justices of the Supreme Court, will become a more representative lot, drawn from common stock and full of common virtue. Of course, Ms. Kagan’s proponents hold, there’s no stock more common and popularly representative than Upper West Side Jewish girls with Ivy League degrees.

So we seem in the process of trading one aristocracy for another, and all that really changes is the royal religion. And, given Americans’ generally lax proclivities toward faith, this probably isn’t a terribly important shift. What will be more telling is whether or not the old WASP ideals of grace, charm, style, economy, family, and tradition will stay on. As the late Louis Auchincloss, white-shoe attorney and author, noted: “The tragedy of American civilization is that it has swept away WASP morality and put nothing in its place.”  

Victims of regime change.