Category: Current Events

7

The Conservatives’ Gay Kids

With the Federal Marriage Amendment coming before the Senate this month, it’s a good time to ask: why do so many conservatives have gay offspring? To name just a few: Phyllis Schlafly (son, John), Dick & Lynne Cheney (Mary), Randall Terry (Jamiel), Sonny Bono (Chastity), Alan Keyes (Maya) and Pete Knight (David). Meanwhile, those liberal Kennedys of Massachusetts appear to have no gay children of record. Is there something about the Republican lifestyle that leads to homosexuality?

0

The Longest Pending FOIA Request

In 1989, William Aceves, a graduate student at USC, requested information under the Freedom of Information Act about a federal “Freedom of Navigation” program. Seventeen years later, the request is still pending. Since making the request, William Aceves finished graduate school (presumably having found a different topic) and law school and he is now a tenured professor at California Western School of Law.

0

Homeland Security Funding–Again

Last year, the Department of Homeland Security announced that it would allocate homeland security grants among states and cities based on an assessment of their vulnerability to attack.

That sounds obvious but it represented a big change. In prior years, a pork barrel formula had funneled a share of funds to everyone—with the result that some towns, facing little risk, used the money to buy snow blowers, while high-risk locales scrambled to find the resources to keep their residents safe.

This week, DHS announced the recipients of 2006 homeland security grants under the new risk-based approach. New York City, which received $207 million from DHS last year, will get $124 million in funds.

New York officials are rightly outraged by this strange result. The City spends some $5 million per week on counter-terrorism.

In assessing risk, DHS, instead of convening impartial experts to figure out sensible numbers, relied upon input from governors, mayors and local homeland security officials around the country. In deciding that New York City was not so vulnerable, these folks concluded that the City has no national monuments or icons to attract the interests of terrorists.

As I have argued at length in a law review article, homeland security funding needs to be completely overhauled.

Rather than leave things in the hands of DHS bureaucrats (the same people who bungled the Katrina response), Congress, in accordance with its constitutional duties to protect the states and cities, should reimburse states and cities for all of the reasonable counter-terrorism costs they incur. This is how things were done for much of the history of the Republic.

3

Filling Ken Lay’s Chair

The Department of Economics at the University of Missouri-Columbia has an opening: the Kenneth L. Lay Chair in International Economics. The Chair was endowed in 1999 but so far there have been no takers. With Ken off to the Big House, the odds of filling the Chair have dropped even further.

Which raises an interesting question: which endowed Chairs (if any) would law professors refuse? The Martha Stewart Chair in Business Ethics? The Fred Phelps Chair in Family Law? The Roger Taney Chair in Law and History?

Would Dan Solove, for example, take the Michael Hayden Chair in Privacy Law? What if it came with a fat salary, no teaching requirements, and a guarantee to increase blogger readership ten fold?

1

Terrorists Among Us

All of the 9/11 hijackers were foreigners, admitted into the United States on non-immigrant visas. Since 9/11, therefore, there has been substantially increased attention to policing the borders—on the theory that terrorists can’t strike here again if they can’t get in.

The British Government has just published its Report of the Official Account of the Bombings in London on 7th July 2005. Much of the report emphasizes how the young suicide bombers who struck the London transit system last summer were second-generation British citizens. They had lived their entire lives in Britain, in ethnically mixed neighborhoods, and attended British schools. One of the bombers had worked as a government bureaucrat and done volunteer work with disadvantaged youth. Another worked with special needs children at a local primary school. A third was an avid sportsman and worked in his father’s fish and chip shop. The men were not well off but nor were they destitute. Their Muslim communities provided them with resources and support.

“Why did they do it?” asks one major section of the government report.

There are no clear answers—nothing in the report that explains why one morning these British men blew themselves up and killed dozens of commuters and injured hundreds more.

According to the report, the men were serious about their religion—but then so are thousands of other members of the very same community. The men spoke out about politics at times but, of course, plenty of people do that.

Some evidence suggests that a local gym the young men attended attracted people with radical views. A local bookstore was rumored to stock radical writings and DVDs. The men liked to go on camping trips—leading to speculation that the trips were training programs. The report finds little significance in any of these things. The men had visited Pakistan with their families. Again, though, many Britons make the very same trip.

The report reaches some chilling conclusions. “The case demonstrates,” it says, “the real difficulty for law enforcement agencies and local communities in identifying potential terrorists.” There was “little in the backgrounds” of the London bombers to “mark them out as particularly vulnerable to radicalization.” On the whole, the men were “well integrated into British society.” While they may have experienced moments of “instability” there was nothing “extraordinary” about their life circumstances.

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.