Eugene Volokh's Blog, page 2560
May 6, 2012
Matt Welch: “Want to promote tolerance? Cut government”
Matt Welch has a nice essay on Reason.com, Why Big Government Is Offensive: The faster the state expands, the more likely it is to violate your values. It is not a new point, but is well made and deserves to be reiterated often: the more government does, the more it offends basic values. Up first for criticism are Republicans, who
are reliably opposed to big-government health care only when they are not the ones implementing it. Whether passing Medicare Part D during the GOP salad days of 2003, intervening federally in end-of-life decisions by Terri Schiavo’s family in 2005, or creating the individual health care mandate in Massachusetts in 2006, Republicans have done their best to speed up government’s slow-motion takeover of the health care industry whenever doing so aligned with the party’sperceived interests and values.
But “[a]las, so have Democrats. In the very same week liberals and progressives were complaining about “theocracy” in Virginia, they were busy waving away social-conservative complaints about ObamaCare’s requirement that employers pay for contraceptive coverage regardless of whatever theological or philosophical objections they might have.”
Libertarians have their values stomped on by governments every day. My (high) taxes in Washington, D.C., are helping to pay hundreds of millions in debt service for a baseball stadium I fervently believe should not have received a drop in public financing. My local city council members—who work part time, mind you, and often maintain second jobs—receive $125,000 from taxpayers each year, a pay rate second only to the loot commanded by the inept legislators of the last city I lived in, Los Angeles. And the criminal code is a festival of offensive-to-me-value judgments, prohibiting actions I consider perfectly moral and proper, such as traveling to Cuba, smoking marijuana, or paying money to illegal immigrants.
The kerfuffles over mandatory ultrasounds and contraceptive mandates made brutally clear an axiom that partisans have a hard time understanding: Any power that government has to do something you like will invariably be used for something you abhor. Today’s decision interpreting the Commerce Clause to justify snatching home-grown medical marijuana from patients in California becomes the justification for tomorrow’s federal mandate to buy health insurance. Reduce the scope of government, and we reduce the culture war, while promoting true tolerance of divergent viewpoints. . . .
Want to promote tolerance? Cut government. Let different cultural claims fight it out in the appropriate venue, as far away from my tax dollars as possible.
Words to keep in mind as we head into the election season.
Congratulations to Howard Bashman (How Appealing) on His 10-Year Blogging Anniversary!
How Appealing — the leading news source on newly decided cases — is one of my (few) daily reads, and if you’re interested in legal news, it should be yours, too.
NLJ on Misreporting Law School Costs
The National Law Journal reports on the under-reporting of estimated cost-of-living expenses at many law schools. The story begins:
The news just keeps getting worse — at least as far as financing a legal education goes.
Law School Transparency has recalculated its estimates of the debt that law students stand to incur after discovering that a number of schools had low-balled the cost-of-living figures that they provided to U.S. News & World Report. On average, schools underreported those expenses — upon which the organization pegged its initial estimates — by $5,000, according to the Law School Transparency’s executive director, Kyle McEntee.
Additionally, the organization made several mistakes in its handling of the U.S. News data, which contributed to the problems, he said.
Here is the post that led to this story.
Are States Required to Help the Federal Government’s “War on Terror”?
Last month, Virginia enacted a law forbidding state officers, including police, from helping the federal government investigate, surveil, or detain terrorist suspects who are U.S. citizens. This may or may not be good policy. David Rivkin and Charles Stimson argue it’s also unconstitutional. They write:
It trenches on the federal government’s war powers and violates conditions under which Virginia and other states have received billions of dollars of federal funding. It has dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores. . . .
The Virginia legislation, and similar legislation in other states, violate the U.S. Constitution. It has nothing to do with states’ rights. It is a dangerous mistake, perpetrated by groups and people who misunderstand detainee law, including the NDAA, or who, since Sept. 11, have viscerally opposed the laws-of-war paradigm. Whatever their motivations, they are wrong, and their efforts should be strongly opposed.
This is an odd argument. It’s black letter law that the federal government may not “commandeer” state officers to enforce or implement federal law. This is true without regard to the purpose of the requirement. If a particular federal policy is that important, the federal government can expend its own resources and direct its own officers to implement and enforce the law. This is true even if, as Rivkin and Stimson maintain, that Virginia’s legislation is premised upon mistaken assumptions about what federal law authorizes or requires.
Rivkin and Stimson imply that Virginia’s new law violates conditions imposed on funds Virginia willingly accepted from the federal government. Maybe so, but this does not make Virginia’s law unconstitutional. It just means Virginia may have to give up some federal funds, provided that the conditions were clear when Congress authorized and Virginia accepted the relevant funds. There is no general requirement that states enforce all federal policies just because they accept some federal funds. And just because a policy is enacted pursuant to the “war on terror” does not mean that states have to go along.
“Obama Has Become More Hostile to Medical Marijuana Patients than Any President in U.S. History”
The Marijuana Policy Project’s Rob Kampia writes:
During the 2008 campaign, Barack Obama raised hopes among those who support medical marijuana by pledging to respect state laws on the issue. But his administration has reversed course and massively escalated the federal government’s attacks on medical marijuana businesses, most of which are legal under their states’ laws.
Further, Kampia argues, President Obama’s Administration is more hostile to medical marijuana than any previous occupant of the White House.
The five presidents from Richard Nixon through George H.W. Bush allowed medical marijuana research to proceed unhindered.
The three presidents from Jimmy Carter to George H.W. Bush allowed patients to apply to the federal government for waivers to use medical marijuana legally under federal law.
Obama appears to be to the right of Ron Paul, Gary Johnson, Ronald Reagan and even George W. Bush on this issue. It’s hard to imagine how this helps Obama politically, and it’s easy to imagine how forcing patients to purchase their medicine from an illicit provider instead of a regulated business hurts people who are suffering from cancer, AIDS and multiple sclerosis.
May 5, 2012
Is Contract Lawyering Doomed by Algorithm?
Walter Russell Mead and Tyler Cowen each point to this article in New York Magazine, describing a decision by US Magistrate Andrew J. Peck (SDNY) to allow the “use of predictive coding, a computer-assisted document review that turns much of the legal grunt work currently done by underemployed attorneys over to the machines.” The work performed by armies of temporary “contract lawyers”?
The task of combing through mountains of emails, spreadsheets, memos and other records in the discovery process currently falls on a legion of “contract attorneys” who jump from one project to another, employed by companies like Epiq Systems. Many are recent grads who are unable to find full-time employment, or lawyers laid off during the recent recession.
Scan. Point. Click. Repeat. That’s the job. Contract attorneys are paid by the hour to sit in front of a computer and review a mind-numbing sequence of uploaded documents. There are cramped, sunless rooms in law firms throughout the city, with rows of computers piled one on top of the other, and constant uncertainty as to how long each particular stretch of employment will last.
Predictive coding promises to make this job much more efficient over time – and drastically reduce the amount of work and number of contract attorneys employed.
Using the technology, a senior attorney familiar with the intricacies of a specific case reviews and codes a “seed set” of documents. An algorithm then identifies properties among the manually reviewed documents to code and sort everything else. Each document is assigned a score to indicate the likelihood it’s correctly coded.
Proponents say predictive coding is not only more accurate than using human reviewers, but also more efficient …. There’s no escaping the fact that as predictive coding is used more widely, the technology will reduce the overall number of documents to be reviewed and the attorneys needed to review them. Judge Peck noted the technology will require human review of less than 2 percent of all documents in an average case. His stamp of approval means that the document reviewer ranks may be culled sooner rather than later.
Mead adds a comment about what this means for the future of lawyering as a profession and as a safety ticket to the upper middle class. I would add the additional comment that survival lies in getting on the right side of algorithm production. That doesn’t necessarily mean that one has to write algorithms. We live in a highly complex economy with many niches. But whatever one’s niche, it helps a lot to be aligned on the side of the angels of creative destruction, rather than sitting in their path.
Software is getting smarter, and computers continue to grow more powerful. What we see now is only the beginning of a process by which the routine elements of legal work — and frankly speaking, that is where the bulk of the jobs have always been — can and will be automated. Not all young lawyers will be doomed. There will be some smart, entrepeneurial kids who figure out how all this computing power can allow a small, lightly capitalized firm to deliver high quality services at a breathtakingly low cost to selected clients. Those kids will do well.
Others will benefit from greater demand. Legal services are likely to get cheaper: there is a lawyer glut that is likely to grow, and the increasing capabilities of computers in the legal field mean that the amount of available legal brainpower will explode. Cheaper legal services mean that more people and firms will use the legal system and legal expertise in various ways: the lawyers and firms who figure out how to ride this wave will also do well.
Brilliant and creative lawyers will continue to do well. So will the marketers, the deal makers and the connectors. But law isn’t going to be the kind of safety play ticket to the upper middle class that it used to be.
George Will on the People’s Rights Amendment
George Will recently published a good Washington Post column on the ill-conceived People’s Rights Amendment, which Eugene Volokh and I blogged about here and here. Will points out several serious flaws in the proposal, and builds on some of the points we made:
Controversies can be wonderfully clarified when people follow the logic of illogical premises to perverse conclusions….
Joined by House Minority Leader Nancy Pelosi (D-Calif.), 26 other Democrats and one Republican, [Rep. James McGovern] proposes a constitutional amendment to radically contract First Amendment protections. His purpose is to vastly expand government’s power — i.e., the power of incumbent legislators — to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern’s proposal vindicates those who say that most campaign-finance “reforms” are incompatible with the First Amendment…
His “People’s Rights Amendment” declares that the Constitution protects only the rights of “natural persons,” not such persons organized in corporations…
McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.
Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern’s amendment, could regulate religious practices at most houses of
worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern’s scythe would mow down the Fourth and Fifth Amendments, as well as the First.
One can argue for the constitutionality of campaign finance regulations on several grounds. But doing so on the basis that people organized into corporate entities have no constitutional rights does indeed lead us down the dangerous path dramatically illustrated by the Peoples’ Rights Amendment.
Cooley Law School Subpoenas Colorado Law Professor for Records of Communications “With Any Person” About How Cooley Reports Employment Figures
Strange but true. Paul Campos has the scoop, which begins:
The Thomas M. Cooley Law School served me with a subpoena yesterday afternoon, commanding me to produce certain documents purportedly relevant to [a defamation lawsuit Cooley has filed against certain critics of the law school]. The documents in question include all my communications with the defendants, and “all documents and communications . . . that you had or exchanged with any person regarding how (i) Thomas M. Cooley Law School reports its post graduation employment rates or (ii) your communications with David Anziska regarding any inquiry or investigation he discussed with you about how law schools report post-graduate employment and salary data.”
Dewey & LeBoeuf
Among the many articles tracking the decline and, presumably shortly, fall of the law firm Dewey & Leboeuf, I found New York Times business columnist James B. Stewart’s “Dewey’s Collapse Underscores Law Firms’ New Reality” to be one of the most insightful as to the general shift in the business model of large, prestigious law firms. It’s insightful both in Stewart’s perspective as a lawyer who started out in a top tier New York firm, watching the changes across the years in high-prestige, high-pay law practice – and in his observations about the way in which the Dewey business model was financed, with long term debt.
As dispatches from my Times colleague Peter Lattman have made abundantly clear, Dewey collapsed under the weight of a toxic combination of high leverage, lavish financial guarantees to many partners and faltering revenue. This makes it, in many ways, the Lehman Brothers of the legal profession, although perhaps that’s unfair to Lehman Brothers. Though highly leveraged, Lehman Brothers had enormous assets on its balance sheet — while Dewey, like law firms generally, had scant tangible assets. Nonetheless, that didn’t stop the firm from heavy borrowing of about $225 million, both by issuing bonds and by drawing on a large line of credit.
“This absolutely falls into the category: What were they thinking?” Bruce MacEwen, a lawyer and president of Adam Smith Esq. and an expert on law firm economics, told me this week, as Dewey suffered a new wave of partner defections and the firm’s accelerating collapse appeared unstoppable. “This was Mismanagement 101 across the board. They had a ringside seat for the collapse of Lehman and Bear Stearns. But they had the same mismatch of assets and liabilities. They took on a massive amount of long-term debt, but their assets are short term: they walk out of the firm every day and may not come back, which is what more and more of them did.”
It’s not yet clear how the firm used the debt proceeds. Partners say most of the debt predated the merger with LeBoeuf, and was a rational and cost-effective way to try to manage existing debt. Still, it seems likely at least some of it went to meet the extensive guarantees the firm made to individual partners, some reaching millions of dollars and apparently extending over many years.
I am curious particularly to see the bond documents in this case, from an interest in the covenants and how they are drafted with regards to things like retention of partners and so on. If anyone were able to point me in the comments to an easy online link with the bond documents, I’d be grateful. The Times has done excellent reporting on Dewey over the past months, likewise the Wall Street Journal, and the Economist had, as ever, a highly readable, highly quotable, really quite elegantly cribbed summary a week or so ago.
The bigger question for law firms, lawyers, law students, and law schools is less the financing model and its flaws than whether Dewey ultimately was the latest casualty in a larger shift toward the commodification of hithertofor high-end, bespoke legal services, on the one hand, and increased customer pricing power, on the other. My own unscientific sense of the market is that there will be demand for legal services, particularly in commercial law, financial services and institutions – but that much of it will be related to bread and butter transactions taking place in real time, and much less large scale transactions in which lawyers can capture up front presumed premiums from the deal that would only emerge over many years. A lot of the new demand will be at the point where commercial law meets compliance law in ordinary transactions taking place today. The value is real; but the value is also much more tightly confined, and billings will reflect that. Even so, client pricing power will also continue to reflect excess lawyer supply for the foreseeable future. Am I mistaken about this highly subjective account?
Fifth Circuit Lifts Stay of Injunction Barring Texas from Excluding Planned Parenthood from Women’s Health Program
Yesterday, the U.S. Court of Appeals for the Fifth Circuit lifted the emergency stay of the court injunction barring Texas from excluding Planned Parenthood from participation in the state’s Women’s Health Program. In its per curiam order, the Fifth Circuit explained that Texas was unable to substantiate its claim that it needed the extraordinary relief provided by an emergency stay and failed to adequately address relevant Fifth Circuit precedent, Planned Parenthood of Houston & Southeast Texas v. Sanchez, 403 F.3d 324 (5th Cir. 2005) in particular. A regular appeal of the preliminary injunction remains pending.
I previously blogged on this case here.
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