February 02, 2005

local schmocal update

David Giacalone

After looking at my f/k/a Referer page tonight, I don't know what is strangest: that someone did a Google search for <"local schmocal">; that the first four results come from C&F and f/k/a [due to our post "fedLabs 101: local schmocal"]; or that there are a hundred other search results for that query. 

Before I get to the relatively serious part of this post, I have a public educational service to perform.  It has come to my attention that many people are not totally familiar with the use of "schm-" as a prefix in a "reduplicated rhyming compound." The Word Maven explains it well in an entry from June 6, 1996. In response to a question involving the term "gravity-schmavity (for a Wonderbra ad!), the Maven says:

The element schm- (also shm-) is added to the initial part of a word to form what linguists call a "reduplicated rhyming compound" jocularly expressing disparagement or derision of the word. The "schm" sound imitates various words in Yiddish, where the sound is quite common. Many of these words have been borrowed into English, such as schmaltz 'sentimentality', schmatte 'a rag or cheap garment', schmooze 'to chat or gossip intimately', schmuck 'a jerk', and others.

This usage is well established in English, going back at least to the 1920s. Your first example, fancy-schmancy, itself goes back to 1935. Although the early examples are primarily from Jewish writers, its current use is widespread, as is demonstrated by the widely promoted Wonderbra ad you mention.

If you don't believe the Word Maven, check out the Macquarie Book of Slang.

Now, back to business.  I wrote about Schenectady, New York's, oft-bumbling Metroplex Development Authority last week, ending with doubts over the financing of a new Hampton Inn on the central block of Schenectady's tiny downtown.  Well, the Inn project made the news tonight here in the NY Capital Region.   There were three small buildings left to take down before construction could begin on the hotel.  In a cable tv spot entitled "Mishap during demolition in Schenectady," Capital News 9 reported that, as the work crew began tearing down the structures this morning,  "part of the first building shifted and collapsed on some cars parked nearby."  Indeed,

"Jayme Lahut, executive director of the Schenectady Metroplex Development Authority said, 'There was a plan put in place. Obviously it didn't work, but we will go back to the drawing board and come up with stronger measures. A couple cars were damaged, but they can be fixed. Nobody was injured'."

I have to tell you, tearing down stuff on that block has been Metroplex's forte until now.  If they can't get that right, I'm even more worried than last week.  (As an aside: that first building was Schenectady's only downtown Rent-A-Center, and none is coming back.  In this town, R-A-C is major retail. )  Indeed, and somewhat ironically, Ray Gillen, the new Chair of the Metroplex Board, is quoted just this past Sunday in the Albany Times Union (Jan. 30, 2005) putting down the prior work of Metroplex, with a quip reversing the Field of Dreams movie theme:

"Schenectady philosophy used to be if you tear it down they will come."

I don't think GIllen meant the news crews would come.  But, quite a few showed up today.   Gillen also complained about the first major consultant study done for Metroplex, calling "the $650,000 Hunter Downtown Master Plan a waste of time and money. 'I kept two pages and threw the rest out,' Gillen said, referring to the two-inch thick 1999 study by New York City consultants."   And, referring to the three-block street reconstruction that was supposed to help lure shoppers back downtown, Gillen said it was a nightmare, because it took three years to finish --  "some businesses failed -- the project was a disgrace."

The Hampton Inn is the first major project okayed by Metroplex since Gillen arrived.  We'll see if a few million here and there will bring more success than the projects of his predecessors. 

The Albany Times Union also focused this week ("Center stage in plan for revival," Jan. 29, 2005) on the very largest Metroplex project: a $22.5 million project that will convert the grand, old Proctor's Theatre into a performing arts complex, capable of mounting the largest touring Broadway shows.  The article notes that "City officials consider Proctor's the catalyst of downtown revitalization, calling the expanded theater the heart of efforts to convert State Street into an entertainment center that is ringed by small office buildings and other commerce."   I love Proctor's and for years it has been the only venue bringing people to Schenectady in large numbers from out of town.  However, here's the part that I find particularly disturbing (emphasis added):

The $9.5 million grant from Metroplex marks the single-greatest expenditure by the taxpayer-funded authority established six years ago to revitalize downtown. Despite the size of the Metroplex donation, the expansion has generated little concern or debate among the authority's board members.

Schenectady has been my home for fifteen years.  I live just a few blocks from Proctor's Theatre and the heart of our downtown.  A vibrant dowtown would be a wonderful thing.  Nonetheless, I worry about a taxpayer-funded authority that has so much power, but seems to pay so little attention to reality and to details, big and small.   Have your leaders found a better way to bring economic development to a city in the throes of a longterm slump?

February 2, 2005 in David Giacalone | Permalink | Comments (2) | TrackBack

January 30, 2005

this Antelope won't play

David Giacalone

I hope lawyers with more knowledge than I on issues such as self-incrimination and therapist privilege, will help clarify for us the importance of the 9th Circuit decision in U. S. v. Lawrence Antelope (Jan. 27, 2005) [Law.com/The Recorder, "9th Circuit: No Forcing Therapy on Sex Offender," Warren Lutz, 01-31-2005].   Mr. Antelope refused to participate in "autobiographical" sex-offender therapy.   

The panel ruled Antelope had been unjustly denied his Fifth Amendment rights against incriminating himself.  The opinion is written by Circuit Judge M. Margaret McKeown and states:

"Antelope's successful participation in [the therapy program] triggered a real danger of self-incrimination, not simply a remote or speculative threat.  We have no doubt that any admissions of past crimes would likely make their way into the hands of prosecutors."

I'm not conversant enough with the issues to offer useful commentary (urging therapy for parents found to have abused several of my child clients, in Family Court proceedings, is my only brush with the topic).   Reading in the Law.com article that Antelope had been caught in a sting "after he joined a Web site advertising 'preteen nude sex pics' and began corresponding with an undercover law enforcement agent" did raise one question for me:  Just how much of the email and Comment kiddie-sex-spam that we receive is coming from law enforcement folk?  Can the Federal Trade Commission, or even Fed84, do anything about it?

A less serious response arose when I read that Montana's offender therapy program is called Sexual Abuse Behavior Evaluation and Recovery, or SABER.   It seems, given my immediate urge to purge, that I suffer from CRAP -- Cute-or-Ribald-Acronymo-Phobia.   Please, enough of this CRAP.   There oughta be a law.

January 30, 2005 in David Giacalone | Permalink | Comments (0) | TrackBack

January 28, 2005

fedLabs 101: local schmocal

David Giacalone

One very good thing about our "let a thousand labs operate" federalist system is that we get to see what works in other places and take advantage of the experience.   One very strange part of the system, however, is that we never seem to learn from the mistakes that happen elsewhere.   And, one very weak part of the system is that the labs are operated by local governments.

Some political theorists and ideologues wax rhapsodic about decisions being made and problems being solved at the level closest to the people.   But, when I think "local government" I tend to think -- based mostly on the seven or eight cities of various sizes I've lived in over the past half century -- "un-professional," "sinecures," "patronage," "pay-back," and "party hacks."  I do not think "knowledgeable people likely to solve complicated problems."  [of course, see my Implied Disclaimers]

That was an admittedly lengthy introduction to the topic of this post: Economic Development Authorities and the failure of local pols to learn from their own mistakes and those of others. [subplot: consultants who'll gladly give you a rosy scenario.]  Earlier this month The Brookings Institution released "Space Available: The Realities of Convention Centers as Economic Development Strategy" (Jan. 2005), by Heywood Sanders.   In its Executive Summary, the author notes:

[click here for the rest of this post, which seems to have overwhelmed Typepad.]

January 28, 2005 in David Giacalone | Permalink | Comments (0) | TrackBack

January 26, 2005

fed. court averts fee crime

David Giacalone

It may not be a crime to ask for $609 million dollars in legal fees for one class action lawsuit, but at times I wish it were.  Nonetheless, as I've been known to carp about courts accepting contingent legal fees that are too high, I want to go on record praising the 5th Circuit panel (judges Cabranes and Wesley), who rejected the $609 million request by class counsel in the Visa/MasterCard Debit-Card Antitrust suit. (decision, Wal-mart v. Visa, Jan. 4, 2005; New York Sun article, Jan. 18, 2005; Overlawyered post).

Lloyd Constantine, who heads class counsel Constantine & Partners, was featured in a guest post here a month ago.  Acknowledged as a premiere antitrust attorney, Constantine is quoted in the NY Sun article saying "If you’re just asking the question in a vacuum ‘Is $609 million too much for a bunch of lawyers to be compensated for doing a case?’ I’d say absolutely, that’s a ridiculous amount of money.”  I believe the lower and appeals courts were correct to find the amount ridiculous in context, too -- including his assertion that a sliding scale fee percentage is inappropriate.   Brooklyn Judge John Gleeson was not as polite as the appellate jurists, when he ruled on the fees (per the Sun):

  “Lead counsel’s request to be paid almost 10 times their hourly rate is absurd,” Judge Gleeson wrote. “It is fundamentally unreasonable and wholly out of character for a group of counsel whose commitment to the corner store merchants they represent has, until now, been admirable and unflagging.”

    Judge Gleeson ridiculed the suggestion that the $220 million fee he awarded would be insufficient to motivate other lawyers to bring meritorious but risky cases. “If it amounts to punishment,I am confident there will be many attempts to self-inflict similar punishment in future cases,” the judge wrote.

Those readers who like a little irony can join me in smiling at this quote from the Constantine law firm Profile:

"The firm's billing rates and total fees are typically significantly less than those charged by larger firms."

Thumbs Down, are deserved, I submit, for the three professors hired by Constantine to bless his fee request.  As the Sun reported:

   To make their case for $609 million in fees, the plaintiffs’ lawyers retained several renowned law professors as experts: Arthur Miller of Harvard, John Coffee Jr. of Columbia, and Harry First of New York University. All filed declarations saying the plaintiffs’ lawyers should be awarded a substantial percentage of the settlement, even in so-called megafund cases,to preserve their incentive to press for the largest possible fund for the class.

It's interesting that none of the professors even mentioned the dollar figure requested by class counsel in their submissions.  I join in the opinion of Prof. Lester Brickman:

“This is a round-up of the usual suspects. These are some of the most prominent lawyers who are law professors, who are frequently hired to bless the fee. Their blessing comes at a commensurate price, but their blessings are certainly worth the price they charge.”

Like the district court, the 5th Circuit correctly sought "to compensate plaintiffs’ counsel handsomely, and at the same time limit the percentage of the award so that plaintiffs’ counsel would not receive a windfall detrimental to the class.”   Any lawyers who need a larger incentive to pursue cases of similar risk and complexity are in the wrong profession, and should find a line of business that does not involve fiduciary duties and ethical limitations on fees.   

January 26, 2005 in David Giacalone | Permalink | Comments (2) | TrackBack

January 24, 2005

fedLabs 101: small claims, big potential

David Giacalone

Do you want to give power back to individuals?  Would you prefer to do so on a broad scale, at the local level, and without waiting for federal constitutional amendments, programs or court precedent?   Whether you're a liberal or libertarian, a lawyer, legislator or law student, I have a suggestion: start working to increase the dollar limits in small claims courts in your state.  I can't think of anything that could so quickly, and at so little cost, increase access to justice -- especially, if coupled with other modest reforms that have been shown to work well in several states (e.g., from adopting Plain English forms and evening hours, to exploiting digital technology -- as with California's Small Claims Self-Help Center).

The treatment of small claims courts is a great example of states as incubators for experimentation.  One result is that many dire predictions about increases in small claims jurisdiction (often made by the legal profession in an attempt to preserve its gatekeeper role for entry to the courts) have been shown to be incorrect.   

$$  We now have two states with dollar limits at $15,000 (TN, GA) and two at $10,000 (AK, NM), but thirty-eight states limit small claims jurisdiction to $5000 or less, with fifteen states still at or below $3,000.  (See chart, Jan. 2005, compiled by the Small Claims Reform Project of HALT - An Organization of Americans for Legal Reform).

For most Americans, small claims courts are an irrelevant part of the judicial system, but they could be much more.  In 2000, I made as good a case for small claims reform as I'm ever likely to make, in a Prairielaw.com article, "Supersize Small Claims".   Except for references to Y2K, it's still relevant, and I'm going to reproduce it here.  At the end of this post, you will find links to help you find out what's going on in your state, highlighting HALT's ongoing efforts -- such as its state by state Report Cards -- and ethicalEsq's related commentary.

Supersize Small Claims

There oughta be a (better) law.

Our courts need major re-programming, to make them accessible, client-centered dispute resolution centers — instead of the expensive, complicated, lawyer-centered bureaucracies they have become.

Total court reform is indeed a big, complex job. But our lawmakers could give a big chunk of the civil justice system back to the people by simply increasing the dollar limits allowed in small claims courts. By permitting claims up to $20,000 in these user-friendly "people’s claims courts," we could greatly increase access to justice, and greatly decrease the time and money spent to resolve the everyday disputes of consumers and small businesses.

Come a Long Way?

A visiting Martian would be perplexed by the state of our Republic in Year 2000.  On the one hand, we have an educated, prosperous, resourceful population that embraces the opportunities of the age of information and computers.  On the other hand, despite a representative form of government, we have a judicial system that still treats the populace like medieval serfs — like simple, illiterate folk, too lowly to bring our legal disputes directly before a court, and beholden to a scholarly barrister class to "represent" us in seeking justice (for a princely fee, of course).

In the early 20th Century, when our Martian observer last visited America, things seemed to be improving. At that time, we had a legal profession led by reform-minded titans, such as Louis Brandeis, who used their influence to create a system of small claims courts in the name of “Justice for All”. Using simplified procedures and rules of evidence, those courts allowed anyone to bring everyday consumer claims and simple business disputes before a judge for a quick, inexpensive resolution.

A century later, that same legal profession has become the greatest (maybe the only) beneficiary of our Byzantine court system, and the biggest impediment to its reform. Instead of producing champions like Brandeis, even its liberal wing seems content to become tobacco case billionaires and apologists for presidents, CEOs, and the status quo. The result, as Ralph Warner (lawyer-turned-Self-Help-guru) has recently pointed out, is that "over 150 million citizens of the ‘Land of the Free’ are legally disenfranchised" from our expensive, inaccessible court system.

Despite their May Day platitudes, the lords of the legal profession are not going to democratize our legal system.  If there is ever going to be a modern Magna Carta to assure universal access to our courts, the serfs are going to have to rise and take them back — with the help of politicians wise enough or scared enough to put the Peoples’ interests over those of the legal establishment and their Political Action Committees.

The Problem with Tiny Claims

For decades, small claims courts have proven that the average person can resolve disputes quickly, cheaply and effectively, without using lawyers. As they now exist, however, small claims courts have become irrelevant to most Americans — a downscale judicial stepchild, unfamiliar to most of the public, and relegated to handling cases too insignificant to warrant or attract lawyers.

The dollar limits are simply too low: in two dozen states, the maximum monetary award granted in small claims courts is $3000 or less. It's $1500 in Virginia and $2000 in Kentucky.  Only two states allow claims as high as $15,000. These paltry limits are anachronisms at a time when the average new automobile sells for $24,000, and many kitchen renovations include $5,000 gas ranges and $4,000 refrigerators.

As a result, many consumers and small businesses must give up valid claims that would otherwise be highly appropriate for the user-friendly small claims format, because hiring a lawyer would make the claim far too expensive to pursue in other courts.  Others are forced to take uncomplicated cases they could easily handle themselves to higher courts, where they pay hefty legal bills for lawyer services they don’t really need.

The $20K Upgrade Solution

In response, HALT, (a national consumer organization for legal reform) launched a project in 1998 to greatly expand the jurisdiction of these people’s courts, calling for states to raise the limits to $20,000. HALT’s Small Claims Reform project is promoting model legislation, which would also allow such courts to issue injunctive relief (ordering a party to stop or to take certain action), and eliminate lawyers in small claims courts (as has been done successfully in six states: Arkansas, California, Idaho, Michigan, Nebraska, Virginia).

HALT has it right. Upgrading "small" claims courts to “people’s claims courts”, with realistic dollar limits, is the best and quickest way to help ordinary people take charge of their own routine legal needs.

Other access-friendly reforms — such as increased use of computerization, plain-English forms, and self-help advisors at court — deserve support. But raising the dollar limits to $20,000 is clearly the most effective single step to making small claims courts relevant and responsive to a 21st Century nation and economy.

Bar to Reform

To no one’s surprise, the organized bar has been hostile or cool to such proposals, characteristically casting its opposition in the patronizing guise of protecting their clients. (See ABA Journal, Dec. ‘98, at 18). When a modest bill to raise New York’s limit from $3,000 to $5,000 was proposed in 1999, the New York Bar Association took no position on the proposal, which never came to a vote in the legislature, after being favorably voted out of committee.  The Maryland bar twice got their governor to veto legislation raising the dollar limits, although the bills had been passed unanimously in both legislative houses.

Improving access to justice, while saving consumer and taxpayer dollars, is a theme that should be popular with everyone and all parties (political, cocktail, as well as litigation). But, HALT’s efforts have had relatively modest success to date. In a nation that loves lawyer-bashing and lawyer jokes, the lack of political support for court reform can be understood only in the context of the immense power of the legal establishment and its mighty efforts to preserve control of our justice system.

In this election year 2000, we serfs ought to start asking our local and national leaders just whose side they are on in the battle to win back our courts. "$20K in Y2K" would be a very good political motivation litmus test.

Links of interest:

online self-help models:

from ethicalEsq

update (Jan. 25, 5 PM): Thanks to Lisa Stone at Law.com's Legal Blog Watch for pointing to this Small Claims debate.  I want to clarify, however, that I am in no way pointing to Michigan's small claims system as a model.  It has only a $3000 jurisidictional limit, and it received the 7th lowest grade in the nation on its 2004 Small Claims Report Card from HALT.

January 24, 2005 in David Giacalone | Permalink | Comments (8) | TrackBack

January 22, 2005

Notice of Implied Disclaimers

David Giacalone

A lot of lawyers have gone to great lengths crafting their weblog disclaimers -- usually to make sure the great masses won't mistake info and opinion for legal advice or empathy for a client relationship; some want you to know they don't endorse the products that appear in those annoying ads that grow like mushrooms in the shade of their sidebars. Over at f/k/a. I've even tried to clarify that my cranky punditry should not be attributed to the many excellent and innocent haiku poets who have agreed to grace the site.

It has come to my attention, however, that those of us who offer commentary and criticism on our weblogs are often misunderstood by readers who needlessly take offense -- personal, ideological, professional, etc.. This problem is especially true for some of us older webloggers who have steadfastly refused to utilize emoticons.

Therefore, I'm using the webbully pulpit provided me by the Fedster as a guest at C&F, to set forth my Notice of Implied Disclaimers. Henceforth, please consider the following disclaimers -- unless specifically disclaimed -- to be applicable to anything I write on the Web or in any other sectors of cyberspace:

Notice of Implied Disclaimers.

YIKES - "Yes, I Know there are Exceptions and unfair Stereotypes". This disclaimer comes in handy when a poor, well-meaning soul -- like, say, Harvard President Lawrence H. Summers -- is addressing a topic with politically-correct connotations. A little YIKES! in advance might spare you unseemly public groveling (or a night or two sleeping on the proverbial academic sofa). However, even a good YIKES! (combined with the TIMID and PMS disclaimers explained below) won't save you from folks with no sense of perspective or humor*.

TIMID - "This is [just] My Interpretation, Dear" . If you've ever been accused of sounding like a condescending know-it-all, a prophylactic TIMID disclaimer may save you yet again from a lonely night on the cyber-sofa. I've always thought everyone knew that everything they said was only their own view of the facts or the truth, but that appears not to be the case, thus causing much difficulty. Please don't confuse TIMID with the phony humility of IMHO (or "with all due respect").

PMS - "Pardon My Satire," "Post May include Satire," or "Pretty Much Satire" -- a recent run-in, while discussing the Anonymous Lawyer, with young lawyers and law students who appeared to be unfamiliar with the genre of satire, has convinced me that prudence requires the PMS Warning. Even Prof. Bainbridge could recently have used this Implied Disclaimer, and avoided a postscript describing the location of his tongue.

s/david a. giacalone,
a/k/a haikuEsq and Prof. Yabut,
f/k/a ethicalEsq

Feel free to adopt the nomenclature of Implied Disclaimers yourself, since I don't expect you to waste a perfectly good Saturday night, like I just did. Having made this announcement, I'm fairly certain that I'll no longer have to worry about insulting, miffing, irking or otherwise raising the ire of (thoughtful, secure, mature) readers who may encounter my words here in cyberspace.

*Linked image from Best of Callahan.

January 22, 2005 in David Giacalone | Permalink | Comments (0) | TrackBack

January 21, 2005

give us da odds, guys!

David Giacalone

All this talk of easy money from the libertarians over at Pacific Legal Foundation, has left this old consumer curmudgeon wondering "what are the odds of winning?"  My Friday cup of skepticism overflows over at f/k/a in baloney and hotham for a cold day.'

  • E.g., "I don't know how many entrants there usually are, but if Tim and Mike are successful in drumming up a lot more essays through weblog publicity, I think the odds will start getting kind of long" for those willing to write the expected 8000- to 14,000-word publishable essay.

January 21, 2005 in David Giacalone | Permalink | Comments (0) | TrackBack

January 19, 2005

pro bono Publico Relations

David Giacalone

For many Americans (and other inhabitants of planet Earth), "lawyer" and "liar" aren't just near-homonyms -- they're synonyms.  [Yes, I know you know this.] 

Now, imagine you're a group of bar leaders concerned with the public image of lawyers as lying, greedy shysters.  To be more specific, you're upset a survey by your state's Office of Court Administration shows that lawyers did even less pro bono work in 2002 than they had in 1997, the last year surveyed.  Add the additional factor that your association has been working very hard for years to increase the amount of pro bono performed by its members, in order to prevent the establishment of a mandatory pro bono rule, which would replace the current "aspirational goal" of 20 hours per year of pro bono per attorney.

So, what do you do?  If you're the leaders of the New York State Bar Association, you do something that is likely to increase both your pro bono numbers and your reputation as lying greedy shysters -- you redefine pro bono to encompass just about every legal service a lawyer might provide to any community, civic or public interest organization, and services done to "improve the legal system"  or "the legal profession."  Even better for lawyers in the State, pro bono [formerly thought of as "free" services by the rest of us] would include the "delivery of legal services at a substantially reduced fee to persons of limited means."   ["Substantially reduced" is not defined, and pro bono reporting is expected to remain voluntary, for purposes of measuring the bar's overall service.] 
-- due to technical difficulties, continued here--

January 19, 2005 in David Giacalone | Permalink | Comments (2) | TrackBack

January 16, 2005

from my OLD, dead hands

David Giacalone

How will they take your car keys when you're an elderly driver?  The issue has been in the news the past few days, due to the release of AAA Roadwise Review, a CD-ROM by the American Auto Association:

"The AAA Roadwise Review: a Tool to Help Seniors Drive Safely Longer is an easy-to-use, scientifically validated screening tool available on CD-ROM. Through a series of explanatory video segments and interactive measures, AAA Roadwise Review guides users through the program. Working with a partner, users can progress at their own pace, repeating the instructions and pausing the program as needed. ...

"Assessments measure the user's ability to see in low light and scan across a field of view, visual acuity, flexibility and other skills proven to be among the leading predictors of crash risk among older drivers. In addition, the program offers information on how to improve or compensate for functional abilities that tend to decline over the years. Users are encouraged to repeat the review periodically, recording their results for easy comparison over time."

I'm wondering where my federalist and libertarian webfriends stand on the issue of how, when, and by whom action should be taken to deal with the increasing problem of unsafe elderly drivers.  Yesterday, my local newspaper, The Schenectady [NY] Daily Gazette, compared elderly driving with social security as a "third rail" of American politics.  (Editorial, "When Miss Daisy shouldn't be driving," Jan. 15, 2005, A9, $$) Noting that this is already a major public health problem, the Gazette opines:

"Ideally, all drivers over the age of 70, when vision, reflexes and judgment tend to decline significantly, would be subject to more frequent testing.  Eye exams aren't enough; some sort of driving test is also needed.  For those who have trouble, a provisional license, with limitations such as no night or highway driving, is a possibility.  Some older persons already impose these restrictions on themselves.  But many aren't aware they have problems, or refuse to do anything about it if they are."

In June, 2003, Oregon instituted a law requiring doctors to notify DMV when a patient has medical problems that make the patient unfit to drive.  That same year, Florida stated requiring drivers over 80 to have their vision tested when their licenses are renewed. (USA Today article, Dec. 01, 2003)  On the other hand, New York State keeps making the license renewals last longer and longer.  Last year, they sent my 85-year-old father (whose keys were taken away four years ago, at his doctor's orders, and his family's) a renewal registration for eight years -- with only the need for a new eye exam, which he could probably pass.

Although I paraphrased Charlton Heston above, I don't know what his position would be on carkeys rather than guns.  His old Hollywood rival, Kirk Douglas, on the other hand, is perhaps the most high-profile example of why strict review and mandatory reporting are necessary.   Douglas is involved this month in a trial (John Robert vs. Kirk Douglas, #SC077501) stemming from an auto accident he caused at age 85 (before the deadly Farmers Market accident).  As one press account notes:

"There are many who believe Kirk Douglas at 85 should not have been driving any car due to his many recent medical problems. In recent years Kirk Douglas has had (2) pacemakers, partial paralysis, daily medication, stroke(s), bad knees, compressed spine, attempted suicide and broken back. This is in addition to passing out in public. Many of the above conditions are considered by the DMW for license revocation when reported by Doctor/or family."

Should the federal government get into these issues -- beyond research and collecting data?  Is control of the Interstate Highway system a sufficient justification for federal intervention?  What kind of responsibility do the states have to act -- not only by instituting better testing and evaluation of older citizens, but also by helping to plan for options and substitute services that will be needed as millions of the elderly become unable to drive?

In a column in August 2003 for Liberty for All, in the wake of the killing of 10 at the Santa Monica Farmers' Market, Rachel Mills made some very good points:

A lot of adult children would feel so tremendously relieved if the state would take on that role in their parents' lives. Then they wouldn't have to be the bad guy. The state should require driving tests after such-and-such age to get people off the road who shouldn't be there.

I'm not so opposed to that, I guess. But one thing worries me, that always worries me when the state swoops in and "fixes our problems." We might stop worrying about those problems ourselves and simply defer to the higher judgment of the state instead of listening to the screams of common sense resounding deafeningly in our ears.

The Cass County [MO] Libertarian did a survey on elderly drivers in August 2003. Forty-nine percent of those who responded said state governments should not be involved, leaving the issue for private insurance companies, who would decide who to cover and how much to charge.  Twenty-four percent said states should require drivers over a specified age to pass an annual driving test. 

  • Click here to find your local AAA affiliate, if you're interested in purchasing the AAA Roadwise Review CD-ROM (it would have made a great Christmas gift for a lot of nanas and papas).  I've seen it listed at $5 to $10 for members, and $7 to $15 for non-members.
  • p.s.  A few years ago, when health problems caused me to be quite confused in traffic, I grounded myself completely for 18 months.  The experience -- after over 30 years of driving -- made me realize how important it is to make comprehensive personal plans (and backup plans) for the day when I can no longer drive.   I was pleased to see, however, that I could be responsible enough to hang up my keys before they were taken from me after a major tragedy on the road.

Update (Jan. 17, 2005): I found some items of interest that I want to suggest for those thinking about possible solutions:

  1. A five-year old Missouri statute allows family members, law enforcement and physicians to report impaired drivers, granting those who report confidentiality and immunity from prosecution, but also requiring signed affidvaits and documentation, with punishment for false reporting. In the period ending September 30, 2004, a total of 2,007 reports were made. and roughly 35%, or about 700 drivers, had action taken against them. This would include license revocation or a license restriction, such as day driving only.  For more information, see the Concerned Americans for Responsible Driving (CARD) web-site.
  2. Canadians are facing similar problems as their population ages, with various provinces taking different approaches, attempting to balance road safety with individual rights.  You'll find details in this CBC story, which notes that "But they have more accidents per kilometre driven than any other age group. The accidents tend to be in daytime in good conditions."
  3. In an FAQ about elderly drivers, Insurance.com states:

    "When measured by crashes per mile driven, drivers between the ages of 25 and 64 have a fairly constant rate of accidents. This rate begins to rise at age 70, and goes up rapidly at age 80. Even more alarming is the fact that drivers 85 and older are 11 times more likely to be killed in a crash than any other age group. This is generally attributable to increased physical frailty.

    "These factors cause insurance premiums to rise for drivers entering their 60s, and to increase thereafter. This increase is often moderated by other factors, which may include discounts for fewer miles driven per year."

January 16, 2005 in David Giacalone | Permalink | Comments (2) | TrackBack

January 14, 2005

risk averse over religion in law schools?

David Giacalone

It's been ten days since I used this C&F Guest Pulpit to ask "are religious perspectives broached in law schools?"  Only RiskProf Martin Grace has responded.  No law students have let us know what is happening at their schools (not to mention given opinions of when and how religious viewpoints are appropriate or desirable), nor have other professors -- not even those whom I invited specifically in an email.   

Is this topic too hot or too boring?    I'm disappointed, but will still use euphemisms like "risk averse" and "indifferent" to describe the Comment Slackers.

January 14, 2005 in David Giacalone | Permalink | Comments (4) | TrackBack

January 10, 2005

young Aussie lawyers want the Big Citie$

David Giacalone

The face of legal aid in Australia is sporting a grey beard these days.  The same is true in Canada, where " research suggests that those lawyers who are committed to providing legal aid services are older, with an average age of 49." ("Legal aid shortfall threatens justice," Lawyers Weekly [AU], Dec. 3, 2004)  The head of Ontario Legal Aid says:

“On one hand it is encouraging that senior lawyers are doing legal aid work, but on the other we are faced with a continuous balancing act as we try to recruit new lawyers to ensure we are able to provide services into the future.""

While legal aid and public defender offices in the United States face layoffs and bloated workloads because of budget restraints (examples), the brain drain from bush and outback to the cities in Australia has caused a crisis for organizations like Legal Aid of Queensland (which handles civil and criminal matters), which can't fill job slots outside of major cities.  [Law in the Bush, Radio National]  LAQ has responded with a Regional Solicitor Program, under which newbie lawyes can earn "competitive" salaries of $40,000, and "The program matches law graduates with a regional private law firm. Legal Aid Queensland pays the graduate’s practical legal training course fee as well as 75 per cent of their wage, while the firm pays the remaining 25 per cent."  ["Law graduates to go bush," Lawyers Weekly [AU], Nov. 26, 2004)

Lawyers Weekly [AU] notes:

One graduate who has taken part in the program, Sue Johnston, said she had no regrets about taking up a position in a small Charleville law firm over a Brisbane mega firm.

“A lot of my friends who are working in major law firms spent their first couple of months just reading and analysing files whereas on my first day I was interviewing a client,” she said.

I bet $40,000 can yield a pretty nice lifestyle in rural Australia, and the legal aid positions can offer a diverse caseload and a sense of public service impossible in a "mega firm."  Do you think that's enough for today's law graduate? (see "Money and Ethics: the Young Lawyer's Conundrum," Patrick J. Schiltz)

January 10, 2005 in David Giacalone | Permalink | Comments (0) | TrackBack

January 07, 2005

chronomentrophobia

David Giacalone

I'm not a psychologist, ethicist, nor economist, but I've often played one or more of these roles at my weblog, especially under the guise of ethicalEsq.  So, between you and me, I think you should know:

  • the legal profession is suffering from mass chronomentrophobia -- "a persistent, abnormal, and irrational fear of clocks," along with excessive peniaphobia (the fear of poverty), but with no apparent symptoms of plutophobia (fear of wealth).
  • from the client's perspective, there is nothing wrong with the billable hour fee system that cannot be cured by the lawyer merely doing what is required of him or her ethically and as a fiduciary: (a) following the standards embodied in Rule 1.5(a) of the Model Code -- e.g., basing the fee on the experience and capabilities of the lawyer, complexity of the matter, etc.; (b) performing in an efficient and competent manner; and (c) keeping the client well-informed [see fees and the lawyer-fiduciary; Model Rule 1.4(b); Intro to ABA Statement on Principles in Billing for Legal Services; and Brickman].
  • from the perspective of the overworked associate or partner, there is nothing wrong with the billable hour fee system that is not very likely to be carried over to any alternative billing arrangements, if the firm expects the shift to be made without reducing its income or profits.  See fee fie foe and fum; MyShingle; Prof. Schiltz's Sermon as Required Reading; "Money and Ethics: the Young Lawyer's Conundrum," Patrick J. Schiltz.
  • clients expect "alternative fee arrangements" and "value billing" to result in lower overall fees, not higher ones. [see value billing or venal bilking? and Brand LEX]

[Please excuse my citing to my own materials, but there sure isn't much out there on the blawgs that looks at these issues from a similar perspective -- it's all just ranting about hourly billing and cheerleading over value billing.]

As for ecomonics and the billable hour, I have to disagree with Bruce MacEwan's assessment two days ago at Adam Smith, Esq (beyond the fact that he wants to avoid issues of ethics in discussing and setting lawyer fees). Bruce's first complaint against the billable hour is that it is "based on 'cost of production' rather than 'value to client'."    I didn't go to the Stern School, but I would have sworn that the American economic system is premised on the fact that (workable) competition will yield prices that are based on the cost of production.  The real Adam Smith warned us about guilds of sellers, but he surely would have expected a profession with over a million active practitioners to compete actively over price and service, with market forces bringing price down very near to cost.

Bruce says lawyers should be able to value their services fairly and readily, giving as an example the ability to reach purchasing agreements on the value/price of a home, which has "almost too many factors" to consider.  What Bruce overlooks is that both buyer and seller have much information readily available -- and professionals willing and eager to help -- in the market for homes.  Sophisticated law clients (who I bet will be trying to figure out the cost of production for a law firm when arriving at a fee) may have lots of information, experience and leverage when dealing with the "value" of legal services, but the average legal consumer does not.    It is the inability to make informed pricing decisions that creates the lawyer's fidcuiary duty when setting fees.

As I've noted, famed chronomentrophobe Matt Homann suggests asking a client

"What do you think X would be worth to you?" And remember, "X" is not a contract, will, or deed, but rather peace of mind, security, or some other intangible benefit tied to the specific legal service you'll be providing.

This approach turns the fidiciary relationship into an auction, where the single potential buyer is unaware of the seller's knockdown price and has no way to judge whether the object for sale is a valuable antique or a fake.   No matter the soothng words and good-feely ambience, it comes down to playing on the consumers fears and sentiments and then saying "make me an offer."

In setting fees, the lawyer-fiduciary must act in a manner that puts the client's interest first.  Making sure the client is fully informed when entering into the fee arrangement is essential, taking into account the sophistication level and experience of the particular client. 

Of course, alternatives to the hourly fee can be ethical and beneficial to lawyer and client, and should be encouraged -- because they are a spur to creating the efficiency, innovation, and competition that lead to better client service and lower fees, not in order to lull the client into paying higher fees.  As Niki Kuckes describes in The Hours, the hourly fee was originally used as a tool for capturing a lawyer's value, by measuring the use of his "only expendable resource."   There is no reason -- other than the profession's peniaphobia and "plutophilia" -- that the fee based on an hourly rate should be feared by lawyers or clients.  Let's stop blaming the billable hour for the profession's focus on profits over professionalism and a healthy lifestyle.

January 7, 2005 in David Giacalone | Permalink | Comments (6) | TrackBack

January 06, 2005

misery loves companies

David Giacalone

I just stumbled across the Mises Economics Blog (scion of the Mises Institute, a bulwark of Austrian Economics) and discovered a post with an interesting twist on Loser Pays.   Contributor Skip Oliva of Citizens for Voluntary Trade, has -- to my knowledge -- never met an antitrust case or regulation he liked.  Oliva's fix for what he feels are overzealous or incompetent government prosecutors is this Proposal for Meaningful Legal Reform:

"In all the public discussion of tort reform, I have yet to see any proposals dealing with the costs unjustly imposed on businesses by regulators who bring cases that ultimately fail. Sometimes businesses can recover legal fees from the government, but this wrongly burdens taxpayers for the incompetence of state lawyers.

"One reform, then, would be to eliminate the state-action immunity that prosecutors generally enjoy when exercising state power. If a prosecutor brings a case and loses, he should be personally liable for the defendant’s costs. Defendants would have the right to attach a lien to the lawyer’s current assets and any future income earned, meaning that lawyers who cash-in on their state work would have to bear the stigma of their prior failures."  (emphasis added)

I wonder what FedLawyerGuy thinks of this proposal?   In another recent post, Oliva opined that the FTC "often adopts policies designed to expand the potential earning power of senior FTC lawyers" and "deliberately adopts vague policies to entrap innocent businesses, who are then forced to settle false FTC complaints lest they face costly administrative litigation." 

I only spent a decade at the FTC, so maybe I missed out on the scullduggery, but I can assure you that I didn't get rich once I moved on.  One thing for sure: If Oliva's "meaningful legal reform" ever gets enacted, there will be quite a few vacancies among the Commission's attorney staff. 

January 6, 2005 in David Giacalone | Permalink | Comments (0) | TrackBack

January 05, 2005

fedLabs 101: some losers oughta pay

David Giacalone

Where does your State stand on the issue of Loser Pays?  A local newspaper article on New Year's Day got me wishing New York State had some form of Loser Pays system, to help defendants who are the victims of meritless lawsuits -- i.e., when plaintiffs continue a case even after discovery shows it is very weak.  (Schenectady (NY) Daily Gazette, "Jury clears Mayfield driver of responsibility for pedestrian's death," Jan. 1, 2005, B1, $ubscpt.)

The case in question is fairly typical: the estate of a pedestrian killed in an auto accident sues the driver for wrongful death.  But, here, there was no indication that the driver, Daniel F. Post was at fault. An article from the time of the accident in 2002 noted that Donald H. Colby was walking in the middle of a rural road late at night when struck.  Post was not charged in the incident.  Nonetheless, Colby's estate sued Post for $1 million.  Despite discovery that apparently yielded no evidence of negligence on Post's part, there was a two-day trial in November, and the Fulton County Supreme Court jury cleared the defendant.

  • What did the Estate's lawyer, Anthony Casale, of the Abdella Law Offices in Goversville, NY, have to say about his losing case?   The reporter noted that Casale [using some of my least favorite phrases] "is reluctant to discuss the details of the case because the Colby family 'is looking for closure on the matter'."  "There were a lot of unanswered questions," Casale said of the accident -- "but at the end of the day there wasn't enough evidence" to substantiate the claims in the lawsuit.   So, that's it.  Unless defendant Post risks the additional expense of a frivolousness motion (which has a maximum award of $10,000), his "closure" will have to await payment of hefty legal fees.

Overlawyered.com's editor Walter Olson has written extensively on the topic of loser pays.  (this essay gives a good summary of his arguments).  Walter points out:
"America differs from all other Western democracies (indeed, from virtually all nations of any sort) in its refusal to recognize the principle that the losing side in litigation should contribute toward "making whole" its prevailing opponent.  It's long past time this country joined the world in adopting that principle; unfortunately, any steps toward doing so must contend with deeply entrenched resistance from the organized bar, which likes the system the way it is."
Like Olson's Essay, a 1997 law review article co-authored by Olson and Prof. David Bernstein (of the Volokh Conspiracy)  notes the de mimimis use of loser pays in the United States (modest programs in Alaska, Oklahoma and Oregon).  The article ended with a prediction that further experiments with loser-pays are likely in the near future, but that optimism has so far proven to be unwarranted.  For, example, Ohio's recent "tort reform" efforts failed to include loser pays (see Toledo Blade editorial, Dec. 14, 2004), and efforts in South Carolina were also unsuccessful.
  • I'm afraid that Loser Pays, like calls to protect clients from unethical and excessive contingency fees, has been swept aside by the tort reform tidal wave.  Both efforts could help average folk and businesses get a fair break from our justice system, and both offer politicians the opportunity for bipartisan cooperation in the public interest. However, Democrats are under the sway of trial lawyers and Republicans under the thumb of big business, and they're all too busy fighting the bigger tort reform war.  In addition, the legal profession in general, I believe, fears that Loser Pays will result in less work for lawyers.

Opponents of Loser Pays say such legislation would limit access to justice -- that ordinary people might be dissuaded from filing non-frivolous lawsuits for fear of paying court costs if their case loses.  I have no interest in chilling plaintiffs who have valid claims, but lawsuits like Colby vs. Post are often no more than fishing expeditions and treasure hunts.  Defendants are not just deep-pocketed villains. Meritless lawsuits cause very palpable harm that also needs to be taken into account.

Why aren't we seeing an explosion of experimentation in our great Federalist Laboratory?  With so many variations and pilot programs possible, and so much experience in other countries to use as guides, the Olson & Bernstein prediction of bountiful experimentation seemed like a very good bet in 1997.  I'd like to hear what is happening in individual states now:

  1. have Loser Pays programs been established in your state?  if so how are they working?
  2. are there proposals pending in your legislatures, or were there recently?  if so, what are the party and ideology of the sponsors?
  3. has your local bar been working on the issue of Loser Pays?  studying it? supporting or opposing pilot programs or sweeping reforms?
  4. is anyone at your law school working on these issues?
If ever a topic deserved a weblog of its own -- or a corner in an existing blawg -- this is it. If ever a topic were ripe for 50-state, federalist incubation, this is it. So, come on Federalists, show us your stuff. 

January 5, 2005 in David Giacalone | Permalink | Comments (7) | TrackBack

lisa, meet Issa et al.

David Giacalone

Lisa Stone has suggested that I sneak a few haiku into this weblog while Mike is distracted elsewhere.  [Twist my arm, please.]  Although I believe haiku and lawyers mix very well, I try not to mix the subject of law into haiku too often.  Nonetheless, I do feel an obligation to be at least a little blawggy and felonious here at C&F.  I hope these examples will tempt readers not familiar with real haiku to check them out further -- and maybe come to the same conclusion as the good folk at EDDix.
just outside
      the prison wall
a gopher mound
                             George Swede from Almost Unseen.
His Honor's glasses
clouding over...
adjourned for snow 
first murder trial--
the D.A. arrives
in new gloves
                                                   Barry George (former lawyer)
the farting contest
begins again --
winter seclusion
the mountain moon               
gives the blossom thief
light
                        Kobayashi Issa - translated by David G. Lanoue
p.s.  Until I post substantively later today, let me note that ethicalEsq has awoken from his winter napping long enough to write about billable hours and a Canadian legal website with radical fee advice for clients. 

January 5, 2005 in David Giacalone | Permalink | Comments (0) | TrackBack

January 04, 2005

are religious perspectives broached in law schools?

David Giacalone
At my weblog, f/k/a, I recently voiced my surprise "that so little has been written on faith-biased legal education by weblawgers who might be apprehensive about the idea.  We seem to hear only from fans of the notion."  In response, I received a Comment from JR, who noted that I had previously quoted Prof. Ann Althouse saying:
"What's needed are law schools that expose law students to the full range of professional debate. It doesn't make much sense to counter one law school with another law school: the poor student has to go one place or another!"
JR then asked a very fair question:
"What about the Christian viewpoint in this 'full range of professional debate?' Are any law students being exposed to the Christian side of the debate? If not, how should law schools make sure students are?"
It's been almost 30 years since I attended law school, and 24 years since I was an adjunct professor (when there did not appear to be a Christian perspective on antitrust law).  I'm hoping that current or recent law students and professors can help answer JR's question.   My initial reply to him was, in part:
To the extent that law schools engage in discussions and pedagogy related to what the law and our legal system "should" be [e.g., varying approaches to constitutional interpretation; normative standards for achieving "justice" or "fairness" in statutory and regulatory bodies of law, and their enforcement; standards for assessing "reform" proposals], there should be a very wide-open discussion of the various perspectives that exist in our society.  In that context, the perspective of the evangelical or fundamentalist Christian movement is far too important in our body politic for me to believe it is totally ignored at any law school that seeks to achieve excellence and prepare its lawyers for careers in the 21st Century.
Was I being naive? Please help me answer JR's question -- and add your thoughts on when and how it is appropriate to bring faith-based perspectives into the law school classroom or curriculum.  [For extra credit: take my faith-based law exam.]

January 4, 2005 in David Giacalone | Permalink | Comments (2) | TrackBack

January 03, 2005

it all depends what "ism" is

David Giacalone
I've come to believe that the most important piece of "wisdom" I've acquired in my five and a half decades can be reduced to this sentence (and maybe a couple footnotes):  "No ism has all the answers."   That is, there is no belief system, school of thought, or theory that can always tell you the best thing to do (and that includes David Giacalone's antiismism).   
  • This is a blend, I guess, of philosophical/scientific/ practical skepticism, with my own brand of agnosti-cookbookism:  At times, given the ingredients available or the guest list, you just can't blindly follow the recipe to get the best results, no matter who wrote the cookbook.
Whether the topic is life, law or 'ligion, I naturally raise an eyebrow when told that a certain approach is always the best or is the only appropriate way to see or solve a problem.   The world is simply not that simple.  I say this, in response to Ken Lammers' post here at C&F today about textualism vs. original intent.  Ken points to Jonathan Rowe's modestly-titled post Textualism is Superior to Original Intent at Freespace.  Jonathan denouces "original intent types" who want to apply and ply their approach on the Free Speech clause.

I agree with Rowe that one can use the cloak of original intent to distort the meaning of the Founders.  But, even as a newcomer to the text/intent debate, I must point out that language is always used in context, and language changes meaning over time, so that looking at original intent of the speaker/author is at times crucial to doing their will. 
  • Rowe insists that "make no law...abridging the freedom of speech" can only mean that no law may be enacted that restricts speech. But, I'd like to know why the drafters used a vague word like "abridging."   Did "abridge" have a special meaning in the late 18th Century along the Atlantic seaboard of North America?  Shouldn't we want to know?
  • More important, I wonder why they didn't just say "abridging speech."  Instead, the drafters seem to be protecting a "freedom of speech," making the curious mind at least wonder if perhaps "freedom of speech" is less than "all speech," and perhaps is contrasted with "license to speak whatever one wants."  If so, we might just have to look a bit deeper to know exactly what the authors meant.
Just as I believe that "federalists" use the term rather loosely, depending on the outcome they desire, I believe both "intent types" and "text slaves" can skew their analysis in ways that distort the intent of our Constitution's authors (even if we assume that every supporter of the Bill of Rights gave the words the same meaning!).  What would Freespace do with words like "reasonable search"?   How about -- in an analogous context -- "thou shalt not kill"?  Divining original intent is very difficult, but so is saying what any particular words absolutely meant two centuries ago, or today.  The interplay of text and intent differs with every Clause of our Constitution.  No one has all the answers. 

January 3, 2005 in David Giacalone | Permalink | Comments (0) | TrackBack

burying the competition (and the constitution?)

David Giacalone
Oklahoma only lets licensed funeral directors sell caskets, and obtaining a license entails a considerable expenditure of time and effort.  In his piece titled Coffin Break: Busting Oklahoma's casket cartel would cut the cost of dying (Dec. 31, 2004), Jacob Sullum at Reason hopes the Supreme Court will decide to resolve a conflict in the circuits over the propriety of such laws. 
  • In Powers v. Harris, the 10th Circuit said Oklahoma may restrict competition in this way ["Hornbook constitutional law provides that if Oklahoma wants to limit the sale of caskets to licensed funeral directors, the Equal Protection Clause does not forbid it."]
  • In Craigmiles v. Giles, the 6th Circuit said Tennessee may not ["This measure to privilege certain businessmen over others at the expense of consumers is not animated by a legitimate governmental purpose and cannot survive even rational basis review."].
Sullum says the privileges and immunities clause of the 14th Amendment to the U.S. Constitution once included, and should again be interpreted to protect, "the ability to make an honest living free of official harassment."  I'm not an Immunities Clause scholar, but I'm not at all certain that such a right ever existed in a nation where states quite regularly granted monopolies ever since colonial days.  The 6th Circuit's approach in Craigmiles, using Due Process and Equal Protection clauses to assure that there is a legitimate state interest and rational basis for a restriction, seems more likely to prevail. 
If you're dying to know more about competition and consumer protection in the funeral industry, I suggest checking out the Federal Trade Commission's website.  The FTC has long worked to improve competition, options, and information for consumers of funeral-related services.  For example:
  • The Commission held a panel on Selling Funeral Caskets Online as part of its Workshop on Efforts to Restrict Competition on the Internet (Oct., 2002); scroll down to Caskets/Funerals to find links to submissions from interested sellers, regulators, academics, and consumers.An FTC press release noted that "In addition to cost savings, online casket sellers can offer consumers a greater variety of choices, such as individualized caskets. Many states, however, require that casket purchases be made only through a licensed, bricks-and-mortar vendor."
  • The FTC Funeral Industry Rule  (16 CFR Part 453 to planning and shopping for funeral services. ), requires funeral directors to disclose information about funeral prices, goods, services, and options. The text of the Rule is available, along with compliance information for the industry, and a Consumer Guide
  • The Commission filed an amicus brief in the Oklahoma Powers Case. 
Like Sullum, I hope the Supreme Court takes up this issue and helps to remove unnecessary restrictions on competition.  But, it is a simple fact that Federalism will often mean that an individual state can impose unwise laws upon its citizens. 
David Giacalone

January 3, 2005 in David Giacalone | Permalink | Comments (0) | TrackBack

January 02, 2005

FedLabs 101 - introduction

David Giacalone
Ever since my first post at the weblog, Profs. Yabut and Fedupski have been razzing me for my supposed conversion to the cult of federalism.  They were not persuaded by my protestation that "How Federalism Saved Antitrust" depicts state attorneys general shoring up and preserving the U.S. antitrust laws.  Indeed, they've given me a new pseudonym --  "FedEsq" -- with a new tagline: "when it absolutely has to get done this century."  To get Yabut and Fedupski to calm down, I promised them that I would begin a series tonight entitled FebLabs 101
  • My job will be finding items in the news that raise the question "Are all those (purported) state laboratories of experimentation producing any solutions?"   Since, to some of us, almost everything in the news raises this question, I've decided to limit my focus to items dealing with regulation of the legal profession and related aspects of our justice system.
  • Your Job: coming up with examples of state "reform" efforts or innovation that show there actually was a good reason for having so many extra layers of government here in America (not to mention for fighting a civil war to preserve that more-perfect union). 
  • I especially hope that law student blawgers -- perhaps tired of hearing that your weblogs are little more than post-adolescent gossip mills -- will assist in this effort.  What's in it for you?  Choosing a narrow topic and becoming an apparent expert on it at your weblawg, could result in a great research paper, journal article, job offer, or book deal.  And, you might get to be a Fedster or FedEsq someday, too.
So, stay tuned.  FedLabs 101 is coming soon.   Let's not let Madison, Hatch, Cernovich et al down.
David Giacalone

January 2, 2005 in David Giacalone | Permalink | Comments (0) | TrackBack

December 29, 2004

How Federalism Saved Antitrust

David Giacalone

This post, my first Guest appearance at C&F (thanks, Mike!), is an inspiring holiday story of faith (partially) renewed. 

Frankly, I'm a fedSkeptic.  When fedfanatics extoll the virtues of federalism, I try and fail to name even one modern or historic politician who applies its principles consistently, rather than using it as a trump card in legislative or judicial battles.  When they rhapsodize over the States as incubators and laboratories for legislative innovation and progress, I picture intensive care units sustaining old mistakes and museums enshrining ancient prejudices.
That was until I heard Lloyd Constantine's acceptance remarks last June, when he received the American Antitrust Institute's 2004 Antitrust Achievement Award.  Constantine's remarks, The Importance of State Antitrust Enforcement, were posted Dec. 28, 2004, at the AAI website, and they present a fascinating tale of state antitrust enforcers launching a valiant and successful effort in response to the Reagan Administration's plan to dismantle and destroy the federal antitrust laws.
Here are a few excerpts from Constantine's 10-page speech, to whet your appetite:

[In 1980] antitrust was almost exclusively the province of the federal agencies and the private bar. State A.G. antitrust, at least in New York, was nowhere and not particularly needed.

In 1981 a new federal administration came to power with many new ideas. Some of these were good and successful.  One terrible idea was to destroy the regime of American Antitrust Law.

It was while confronting that specific assault on the antitrust laws from the federal agencies, that we resolved to cobble together a de facto national antitrust agency from the little state offices and to use them to save antitrust. This grand strategy was adopted by a small group of state trustbusters.

First and foremost the antitrust law was saved. To be sure the law is less powerful and beneficial than it was prior to the federal assault, but the core survived. That would not have happened without the States.

Many of the assaults on the core of antitrust law are back, merely repackaged in different forms and terms.

The Antitrust Laws are worth preserving and fighting for. It is important for State and Federal antitrust agencies to try to coordinate their efforts when possible - but it is also essential that each sovereign guard the law and maintain its prerogative to act, and if necessary to act boldly and alone. At an antitrust conference in Lawrence, Kansas in May of 1989 - we celebrated the passage of the Kansas Act of March 1889 and the true centennial of the American Antitrust Laws. On that occasion I ended my remarks with a statement which seems appropriate now: “Federalism is a system in which state and federal governments each strive to achieve the desires of their joint constituents and the goals of the American Nation. But when either side of the partnership fails to act, despite good cause, the other side must act. Federalism is not a suicide pact.”

The many details presented by Constantine are interesting and inspiring - almost enough to turn a fedSkeptic into a cautiously optimistic federale. [Learn more about antitrust enforcement by state attorneys general in the AAI Antitrust Research Guide.  Got crime on your mind?  Click here for AAI's comprehensive Criminal Antitrust Primer.]
david giacalone

December 29, 2004 in David Giacalone | Permalink | Comments (0) | TrackBack