Category: Current Events

4

The Election Lottery

Voter turnout in the United States is among the lowest of all democracies. While pointy-headed professors have offered various proposals for increasing turnout at the polls–mandatory voting (as in countries like Australia), internet voting, easier registration, and a national holiday so voters don’t have to take time off work–an opthamologist in Arizona has come up with a proposal that could have have mass appeal.

Dr. Mark Osterloh is leading a ballot initiative that would make available a $1 million prize in each election in the state. The prize funds would come from unclaimed state lottery winnings. Upon casting a vote, the voter would have a chance at the loot.

My guess, having seen hordes of people line up for hours for powerball tickets, is that a chance at prize money would bring some people to the polls who would otherwise stay away–but that $1 million is probably too low to have much overall effect.

19

Harsh Reality: You’re Fired!

So we’re down to the final two of in the latest iteration of Donald Trump’s “The Apprentice.” Ironically, I believe the show has a great deal to teach about the law of the workplace. The show highlights the at-will employment rule, and emphasizes common misunderstandings about the extent of workers’ job security.

Donald Trump’s cavalier method of dismissing his would-be underlings at the end of the show is distressing and troubling. In real life, being fired is a traumatic event. The loss of a job almost inevitably results in financial instability and often a diminishment of one’s professional and personal identities. To see a firing enacted in such a harsh and casual way should be emotionally difficult to watch. Yet the boardroom discussions and Trump’s catch phrase apparently are among the most popular aspects of the show.

When I’ve asked people – especially my students – why the firing on “The Apprentice” appealed to them, a few themes emerged. Some said that they empathized with Trump, because he was dismissing those who had performed poorly. Others, in a display of schadenfreude, admitted that they were happy to see others dismissed, just as long as it wasn’t them in that situation.

As Professor Pauline Kim (Wash U) has empirically documented, many non-unionized workers (and, presumably, many ‘Apprentice’ watchers) do not fully realize the extent of their own job insecurity. Often, people believe that if they show up at the office and do their jobs, absent any obvious difficulties with management or economic downturns, their employment will last. They believe what they think the boss has promised them: continued employment for hard work. But that is not the law.

Indeed, while it may be good management practice to document reasons for firing someone, the law does not require it. Under the at-will employment rule — the law in all jurisdictions but Montana — an employer may fire an employee for a good reason, a bad reason, or no reason at all. Although federal and state anti-discrimination statutes, whistle-blower laws, and other legal provisions put restraints on an employer’s ability to use a bad reason to fire an employee, the underlying at-will regime remains substantially unchanged. The reality of the worker’s bargain looks a lot more like Trump’s deal.

Altogether, reality TV’s portrayal of employment presents a realistically bleak picture for workers. You can work hard, but you still might get fired without notice.

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2

On the Milberg Indictment

MW.gifI’ve been mulling over the Milberg indictment. Since I waited a weekend to post, I have the advantage of having read lots of other folks’ views. Quick summaries follow:

  • Michael Dorf: Kickback payments slaved the named plaintiffs to MW, bloating agency costs.
  • Steve Bainbridge:Kickbacks encourage “nuisance claims.” We may need criminal sanctions to crank the Hand formula to optimal levels, but only against individual lawyers.
  • Walter Olson:”[MW was] taking no chances on the watchdogs staying pacified: It threw regular chunks of raw liver into their cages.”
  • Larry Ribstein: Who cares? Lawyers are fungible.
  • Ed Morrissey: Bad for Democrats and ambulance chasers.
  • Christine Hurt: It’s high noon, and MW can’t blink.
  • And let’s not forget MW itself: It was just a referral! And the theory is overreaching! And our interests remained aligned!

Wow. Lots of words. So here is what I think.

First, I still don’t particularly understand the economics of outrage here. I’ve seen two arguments about why kickbacks are bad (apart from their being unlawful, which we’ll put aside briefly). First, I’ve heard the argument that they “capture” the lead plaintiff, making that person less able to monitor the lawyer’s work. As Dorf points out, however, plaintiffs in securities class actions are sort of like shareholders stockholders: they have deputized oversight and management to lawyers, in return for fiduciary duties. Some folks seem to have in mind a more active role for lead plaintiffs – something like a controlling stockholder(?) – but given the relatively low bonuses awarded in settlements for lead plaintiffs, why would anyone want to play that role? That is, you can’t have distributed, small-stakes, high-impact, governance by private actions and have plaintiff management at the same time. The capture argument is another way of saying that these types of claims are not in the public interest. But we don’t criminalize inefficient lawyering. Not usually.

The second argument I’ve seen is related to the first – it is Bainbridge’s – and it suggests that kickbacks encourage securities actions that are (on the merits) weaker. Yup, that sounds right. But that isn’t an argument against kickbacks, it is an argument that judges aren’t doing enough to raise hurdles to weak actions at early stages, as the PSLRA was designed to accomplish. To the contrary, I have found that judges are quite hostile to securities claims.

The argument that I haven’t seen on the blogs, but which is larded through the indictment, suggests that MW was, in effect, selling out the rest of the class to benefit the folks at the head of the line. And in a way, this is (for me) the strongest argument against the practice. If MW really did countenance paying referrals-as-kickbacks to named class members out of their portion of the settlement, then we know that dollars were being taken out of the mouths of the rest of the class pretty directly. On the other hand, one might argue that MW had to pay off the named plaintiffs to bring the cases in the first place – that it is a an expense like overhead.

Two additional aspects of the case trouble me. Obviously, indicting the entire firm feels excessive. I don’t agree with Larry R. that reputational effects won’t follow MW’s innocent lawyers. I know lots of counsel at MW – I litigated against them – and I thought they were incredibly hard working, tough, honest, passionate adversaries. One of my worst days as a lawyer came across a deposition table from an experienced Milberg partner: he taught me a great lesson on how to get one’s opponent to hang himself on the record. And I’d be shocked if more than a handful of lawyers at the firm had any knowledge of the activities charged. If the USAO is really indicting out of pique for failure to roll over as most corporations would do in response to a patently unreasonable discovery demand, well, many folks who think of themselves as white knights are going to be tarnished unfairly.

Second, I have some problems with the continued federalization of state practice ethical rules. Although the indictment doesn’t come out and say this, some of the illegality is premised on state fiduciary duty and referral laws. (Some, granted, is based on Rule 23.) Shouldn’t this type of prosecution be the job of Elliot Spitzer and his imitators? Which raises a question: why didn’t Spitzer get here first?

0

The Katrina Reports

This summer as a follow up to The Security Constitution I am working on a paper about emergencies and federalism. I have spent the past week reading the three reports—one by the White House, one by a House Select Committee, and one by the Department of Homeland Security—on the federal government’s response to Hurricane Katrina.

Getting through the three reports is no easy task. Together, they number 996 pages. (You really have a problem if it takes 996 pages to describe it.) All three assume knowledge of the inner-workings of the federal bureaucracy. Large swaths of the White House Report in particular are bureaucratic babble with sentences like this: “The JFO co-locates the Principal Federal Official (PFO) and Federal Coordinating Officer in situations not involving multiple FCOs.” And this: “Strategic-level coordination and resolution of resource conflicts unresolved by the NRCC occurs at the Interagency Incident Management Group (IIMG), an interagency body housed at DHS headquarters.”

Still, the three Katrina reports, with varying degrees of candor, come to a single basic conclusion: the federal government botched it.

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0

A Reckoning In Houston

Tomorrow the Enron jury will hear closing arguments in the Lay/Skilling trial. Given both defendants’ reported weaknesses as witnesses, the futures market estimate of conviction on at least several charges for Lay (76% ) and Skilling (73%) is predictable. (Although, the line has shifted significantly from February.) And even if a verdict arrives this week, the defense team(s) are already no doubt working on an appellate strategy. One tack: Judge Lake appears to have accepted the government’s intent instruction.

This raises an issue which I’ve been thinking a bit about recently. Given research showing that juries often ignore instuctions, especially in complicated cases, and instead focus on a narrative and attributions of blameworthiness, why does the government so often appear to overreach and thus preserve great defense issues for appeal? Does the federal prosecution manual discount the research? Or, more cynically, is the phenomena a problem of incentives? In the ordinary case, the marginal gain from the prosecution instruction is reaped by the line attorney, but the marginal cost of the instruction is usually discounted by time and by the likelihood that the government attorney defending the appeal is a different unit, or a different office altogether.

10

Rove Indicted?

Jason Leopold at Truthout is reporting that Karl Rove has been indicted for perjury and making false statements:

Fitzgerald served attorneys for former Deputy White House Chief of Staff Karl Rove with an indictment charging the embattled White House official with perjury and lying to investigators related to his role in the CIA leak case, and instructed one of the attorneys to tell Rove that he has 24 hours to get his affairs in order, high level sources with direct knowledge of the meeting said Saturday morning. . . . It was still unknown Saturday whether Fitzgerald charged Rove with a more serious obstruction of justice charge. Sources close to the case said Friday that it appeared very likely that an obstruction charge against Rove would be included with charges of perjury and lying to investigators.

I got the e-mail about this several hours ago, and I’ve been waiting since then to link to a more “official” story on CNN or MSNBC. It looks like none of the mainstream news sources are reporting the story, though — it’s not even on Drudge! I’m not sure what to make of that absence — if the story is true, then other news sources must be trying to confirm it, and they apparently can’t. This makes me wary. Perhaps Truthout found an exclusive source and could verify a story that other sources couldn’t verify; but perhaps they got taken, or jumped the gun. If there’s a story, then the next few days will undoubtedly bring confirmation and more detail.

In the meantime, the story is very interesting. Assuming it’s true, the charges in the indictment — perjury, false statements — are serious. (Everyone knew that; still, it’s eye-opening to read a news report that says “Rove indicted for perjury.”) The story also says that Rove has committed to resign if indicted, which makes sense from a matter of politics.

I’m not a crim law person, and I’m not quite sure what to make of the report that some charges could be confirmed (perjury, false statements), but not others (obstruction). Dan F. or other crim law folks, does this have some cosmic (or at least substantive) meaning? Does this mean some charges were decided on earlier, and prosecutors are still doing something with the obstruction charge? Does it mean that the grand jury is still deciding on those? Is there a possible crim-procedure story here that means something, or is it just a gap in the reporter’s facts?

In any case, it’s an interesting story, and I’ll be keeping an eye on the news. If our readers have any thoughts on the story (or for that matter, any deeply-confidential, on-the-QT, hot news tips), please feel free to weigh in.

0

Revived Immigration Bill

From the AP / Yahoo News:

Senate leaders reached a deal Thursday on reviving a broad immigration bill that could provide millions of illegal immigrants a chance to become American citizens and said they’ll try to pass it before Memorial Day.

The agreement brokered by Senate Majority Leader Bill Frist, R-Tenn., and Minority Leader Harry Reid, D-Nev., breaks a political stalemate that has lingered for weeks while immigrants and their supporters held rallies, boycotts and protests to push for action.

“We congratulate the Senate on reaching agreement and we look forward to passage of a bill prior to Memorial Day,” said Dana Perino, deputy White House press secretary.

Related posts: Retaliation Against Workers At Immigration Rallies

13

Pseudonymity and Ethics

Last week, the Los Angeles Times suspended the blog of Michael Hiltzik, one of its columnists, when he admitted posting comments both on his blog (which was hosted by the paper) and on other blogs under pseudonyms. Apparently these efforts were a ham-handed attempt at creating an ego chamber by suggesting that there were other participants who agreed with Hiltzik’s views. The L.A. Times has posted a notice at Hiltzik’s blog, stating that Hiltzik’s actions were “a violation of The Times [sic] ethics guidelines, which requires editors and reporters to identify themselves when dealing with the public.”

Put to the side for the moment what Hiltzik actually did, which, if nothing else, was not a bright career move (and serves as yet another reminder to the public of the existence of IP addresses). What if Hiltzik had used a pseudonym to comment on another blog merely to engage in a discussion without revealing that he was a columnist for the L.A. Times? What if the resulting discussion then became interesting enough that Hiltzik or another reporter decided to write about the debate? Is there something improper or unethical about the fact that the hypothetical Hiltzik did not disclose his identity in the course of the discussion? Assume, even, that Hiltzik engaged in pseudonymous commentary precisely to spark a discussion on a given topic — which is, of course, what many blog authors do on a daily basis — to see if it would develop into any interesting column fodder. Would he have acted unethically? Given that the participants responding to such comments are engaging with a pseudonymous individual in an open forum in any event, does it matter whether that individual is the hypothetical Hiltzik or a CPA in Schenectady? Or whether the individual is a reporter for the L.A. Times rather than the author of AcmeBlog?

Presumably the L.A. Times does not enforce its policy to the extent of requiring its reporters to “identify themselves when dealing with the public” when they are, say, participating in an online dating service or ordering a burger at the local fast food joint. I would imagine that the point of the policy is to protect members of the public who would unwittingly say something in a conversation with a nonreporter that they would not say if they knew the comment could potentially be published in the paper. But when the hypothetical (i.e., nonlogrolling) Hiltzik comments pseudonymously on another’s blog and encourages comments that are intended for public consumption from the moment the “post” button is hit, is he “dealing with the public” in the way that the paper’s policy contemplates?

(To be clear: I am in no way defending Hiltzik’s actions. But I am curious about where the line between proper and improper is in a medium in which pseudonymity is not only accepted but often encouraged.)

0

You gotta have Friends

The California Supreme Court has ruled in Lyle v. Warner Bros., the Friends sexual harassment case. The plaintiff alleged a hostile work environment, stemming from writers’ use of offensive jokes about sex during script writing sessions. The court disagreed, ruling unanimously against plaintiff in upholding the trial court’s summary judgment decision. The decision states in part:

Based on the totality of the undisputed circumstances, particularly the fact the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted harassment directed at plaintiff because of her sex within the meaning of the FEHA. Furthermore, to the extent triable issues of fact exist as to whether certain offensive comments were made about women other than plaintiff because of their sex, we find no reasonable trier of fact could conclude these particular comments were severe enough or sufficiently pervasive to create a work environment that was hostile or abusive to plaintiff in violation of the FEHA.

In addition, Justice Chin argued in a concurrence (relying largely on the writings of Eugene Volokh) that the plaintiff’s claim is barred by the defendant’s freedom of expression under the First Amendment. David Bernstein at Volokh.com has a post suggesting that the majority should have based its decision on that ground.

7

A shout out to my home state

First, thanks to all the folks at Concurring Opinions for the invitation. I’ll no doubt be a pale substitute for my W&L colleague David Zaring and other illustrious alums of ConOp — but I’ll do my best to keep the random insights on a thousand different topics (which is what sets ConOp apart from its fellow blogs, no?) coming.

It’ll come as no surprise to those who know me well that I begin my sojourn through the blogosphere with a little news item from my beloved home state of Arkansas. (Plenty of time to brag about my scholarship (um, I mean dialogically engage with like-minded scholars about topics of mutual interest) in later posts. . . .)

Seems that Arkansas is about to become the first state in the country to ban smoking in cars where children under the age of 6 are along for the ride. The bill was passed by an overwhelmingly Democratic legislature, and our Republican-possible-Presidential-contender-health-nut governor Mike Huckabee says he intends to sign it into law. Progressivism and bipartisanship at its best — folks in Washington, take a page from the Razorback playbook. And Arkansawyers everywhere, say it with me … whoo pig sooie!

(To my fellow former Judge Buzz clerks out there (Nate? Geoff?), am I wrong? What would our “old dad” say on this one?)

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