Law


Secret Law is No Law at All

There was some excitement in my twitter feed this morning regarding an opinion from the Foreign Intelligence Surveillance Court (FISC) that instructed the White House to declassify some of its opinions:

In an opinion from the FISC itself, Judge F. Dennis Saylor on Friday told the White House to declassify all the legal opinions relating to Section 215 of the Patriot Act written after May 2011 that aren’t already the subject of FOIA litigation.

I am all for declassifying this material but this misses the key issue entirely.

In a free land there is no such thing as a FISC! No secret courts, no secret proceedings, no star chambers.

Secret law is no law at all.


A Lesson obama Could Learn From roosevelt

As they continue enforcing failed policies of their predecessors the obama administration continues to look in a dark hole for answers:

The Obama administration’s top cops and their Mexican counterparts are looking for ways to stop arms smuggling across the border as well as new strategies for fighting the drug cartels that have fueled violence in both countries.

There may not be anything roosevelt can teach obama about dealing with an economic crisis but obama and his administration should be able to learn from the great failure that was righted during the roosevelt administration:

Ending the drug war may not create as many jobs as the above video suggests would be created by ending prohibition but it may certainly end a bunch of useless jobs:

As Webb pointed out in a cover story in Parade magazine, the U.S. is, by far, the most “criminal” country in the world, with 5% of the world’s population and 25% of its prisoners. We spend $68 billion per year on corrections, and one-third of those being corrected are serving time for nonviolent drug crimes. We spend about $150 billion on policing and courts, and 47.5% of all arrests are marijuana-related.

As Klein says in this article:

That is an awful lot of money, most of it nonfederal, that could be spent on better schools or infrastructure — or simply returned to the public

Heck, perhaps the police could even do something about protecting the public from real crimes with the extra time they would have on their hands; perhaps the judicial system could take steps toward becoming affordable and responsive to the public it is supposed to serve, you know, resolving cases in weeks or months instead of months and years.
Klein’s argument of potential massive tax windfalls is probably wildly overstated:

It is estimated that pot is the largest cash crop in California, with annual revenues approaching $14 billion. A 10% pot tax would yield $1.4 billion in California alone.

Take away law enforcement’s inflated estimates and take away the risk premium and watch that cash crop value drop 50% or more.
The US can end the carnage in Mexico easily. End the drug war and as the last phrase in this History Channel video says: the gangster era of the twenties is over.

In this case it will be the gangster era the past 50 years.


Will the New Cell Phone Laws Increase Danger on the Road?

New laws requiring that cell phone use in moving vehicles be handsfree are going into effect in many states this week. For instance, Washington and California. In California:

The law requires use of a hands-free device by drivers over 18 except in a medical or traffic emergency. Text-messaging is not specifically banned for adults, but the California Highway Patrol said they can be cited for negligence under existing laws.
A second law that took effect Tuesday bars drivers under age 18 from using a wireless telephone, pager, laptop or any other electronic communication or mobile service device while driving. The ban extends to hands-free usage and text-messaging.

All these laws make me wonder whether our fine legislators have any kind of clue at all.
If it is really about holding something in your hand shouldn’t the thousands of espresso shops be required to provide your drink in a hands free cup?
The problem, though, is not just that you are holding something in your hand. It is that you are carrying on a conversation. This creates a bit of a diversionary problem when your conversation partner is in the car. It is magnified when they are on the other end of the phone. You have to focus attention both on what you are say and on understanding what the other person is saying which will often include creating a mental image of their facial expressions and body language. Neither your driving or your conversation partner get full attention.
You don’t agree? Do the experiment yourself. Go do an honest comparison of your focus while driving: a) driving with no distractions; b) driving with music playing; c) driving while listening to your favorite talk radio show; d) driving while talking to some in the front seat; e) driving while talking to someone in the back seat and f) driving while talking to some one via a cellphone. Make sure the conversations are realistic. I’d be interested in your results.
Forcing folks to go hands-free also compounds the problem for other drivers. When talkers were holding their phones it was relatively easy to attribute their poor driving to cell phone use as opposed to, say, being drunk. You would probably compensate a little differently and probably did not call 911.
Now that the talkers are being forced to speakerphones and earpieces it will not be easy, if even possible, to determine whether the fool weaving back and forth or crawling along in the left lane is cell phone disabled or something worse.
If you are driving you really should not be talking on your phone at the same time. Pull over.

I encourage everyone to call 911 anytime they see reckless or impeding traffic. No excuses for why it is happening.


Advice on Taking A Bar Exam

Professor Somin says:

That said, I think many law school graduates get overly stressed out and obsessed about taking the bar, and spend too much time studying. Most bar exams are primarily just tests of memorization. They’re not much of an intellectual challenge, and require far less thinking than most law school exams.
Most important, all you have to do is pass. Unlike on the SAT or the LSAT, there is no need to maximize your score. As one of my law school classmates put it, every point you score above the minimum needed to pass is evidence that you spent too much time studying. I took this excellent advice to heart, and saved a lot of time and aggravation as a result (primarily by not attending any Bar/Bri lectures, and confining my preparation efforts to reading the books and taking some practice tests). If you’re reasonably good at managing your time and memorizing legal rules, you can probably do the same thing.

There is some disagreement in the comment thread….
The more interesting question is the one he addresses in the post’s initial paragraph: what is the purpose of the bar exam? And, by extension, should they even exist?
Well, yes, they can exist if they are part of a voluntary credentialing system that attorneys could use to some competitive advantage and that consumers could use as part of their attorney selection process. But, as Somin notes, current bar exams are little more than another barrier to entry put in place by a state enforced monopoly.

As such the consuming public would be best served if they were eliminated.


Fair and Full Compensation?

Here is the sought after take:

Attorneys who win civil-rights cases can also ask the trial judge to apply a “fee multiplier” in cases of “exceptional success.” Howell wants his estimated fees of $174,321 multiplied one-and-a-half times.

This guy’s billing rate is $480/hour so he put in 363 hours, the equivalent of a bit over 9 weeks (at 40 hours/week).
Another Seattle attorney involved in similar cases says:

“Unless attorneys who undertake risky civil rights cases are fairly and fully compensated for the time expended in these cases, the limited pool of lawyers willing to vindicate the rights of victims of government will shrink.”

Folks, this is a lawyer. Now I can see a lawyer billing enough to support a secretary and some office space but surely if he is good enough to bill even half this rate he should be good enough to be pretty busy and shouldn’t need to bill a year or threes overhead on one case.
If he is trying to make his whole year’s income off one 9 week equivalent case then perhaps he should find some other work to fill in the rest of the year. Fair and fully compensated should mean at a rate adequate to live a comfortable life which in the suburbs of Seattle does not require anything close to the equivalent of $1,000,000/year.
Give him credit for winning the case but how good can he be if it takes him 20 hours ( $10,560) just to figure out how much to bill?? It seems like a bit of malfeasance that he hasn’t hired a $400/day accountant to spend an hour or two to do his billing…
In another view: can a case be made that his hourly rate should be no higher than what he would have earned from his 40% contingency agreement with his client…$107,00/363=$295/hour. Still high but it turns out to be what he agreed to do the work for originally…could have been lower or higher based on the amount of award.

Thoughts from any of you lawyers?

NB: It is also pretty ridiculous that the legal expenses for this one case have already hit $675,000 and the clock is apparently still running. The city officials who failed to settle this case out of court should be fired!