Mr. Affordable Care Act Goes [Back] To Washington

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By James Bowden

The most eagle-eyed tourists visiting Washington D.C. for the 100th annual Cherry Blossom Festival might have noticed a line forming at One First Street. Starting on Friday of last week, court watchers and assorted activists took their place in line (or, alternatively, paid someone else to stand in line for them) for the opportunity to see oral arguments in the cases filed against the Affordable Care Act. They lined up early for a good reason; this case is effectively the Super Bowl of constitutional litigation, as the Supreme Court recognized when it allotted a nearly unprecedented six hours to oral arguments over three days.

The Affordable Care Act is a comprehensive piece of legislation aimed primarily at decreasing the rate at which U.S. spending on healthcare increases. It includes a host of regulatory schemes and pilot programs, including provisions implementing the concept of care delivery by 'Accountable Care Organizations,' banning healthcare insurers from excluding people because of preexisting conditions, banning the practice of rescission of health insurance by insurers except in cases of fraud, expanding Medicaid participation eligibility, creating health insurance 'exchanges' at the state level, and authorizing the Secretary of Health and Human Services to developed bundled payment plans to alter the dynamics of the current fee-for-service model of payment for healthcare by third-party insurers. However, the most controversial provision by far (with the possible exception of a completely fictitious provision establishing 'death panels') is the so-called 'individual mandate,' which requires all adults, with certain exceptions, to carry a minimum level of health insurance or pay a penalty come tax time every year.

The Supreme Court agreed to hear arguments on four issues from two cases from the 11th Circuit Court of Appeals challenging the Affordable Care Act, specifically National Federation of Independent Business v. Sebelius and Florida v. Department of Health and Human Services. The first case, filed by the National Federation of Independent Business and two individual plaintiffs who cannot be bothered to carry health insurance and want everyone to know it, argues that the individual mandate is an unconstitutional exercise of federal power to regulate interstate commerce. The other case, filed by the Attorney General of Florida and joined by the Attorneys General of twenty five other states, also argues that the individual mandate is unconstitutional, and adds a claim that the Medicaid expansion is an unconstitutional exercise of coercive power by the federal government over the states. The four issues that the Supreme Court will be hearing are (i) whether the suits are barred by the Anti-Injunction Act, (ii) whether the individual mandate is unconstitutional, (iii) whether the Medicaid expansion is unconstitutional, and (iv) if either the individual mandate or the Medicaid expansion is unconstitutional, whether they are severable from the Affordable Care Act or whether the Act in its entirety must be struck down.

The question regarding the Anti-Injunction Act is effectively a procedure question as to the ripeness of the suit. The Anti-Injunction Act prohibits courts from hearing cases seeing to restrain the IRS from assessing a tax; in order to challenge a tax, a taxpayer has to be assessed the tax, pay it, and then seek that the tax be refunded. The penalties for not carrying health insurance don't kick in until 2014, so the argument is whether the penalty associated with not carrying health insurance is a 'tax' or a 'penalty.' If they are a tax, the Supreme Court can't render a decision on the constitutionality of the individual mandate until the penalties for not carrying health insurance are imposed. I like to think of this as the Supreme Court's escape hatch.

The argument over the individual mandate is the big fish in this pond. Congress relied on its powers to regulate interstate economic activity under the Commerce Clause at Article I, Section 8 of the U.S. Constitution in passing the individual mandate. The plaintiffs allege that the individual mandate requires individuals to purchase a commercial product, which is a regulation of inactivity rather than economic activity, and is therefore beyond the scope of the Commerce Clause. The government argues that the refusal to carry health insurance is economic activity in the sense that in many circumstances a refusal to buy health insurance is effectively a demand by an individual that taxpayers pay their medical bills for them at some point in the future. The argument over the extent of the power granted by the commerce clause is nothing new; anyone who has been to law school is familiar with Wickard v. Filburn, 317 U.S. 111 (1942), which held that growing wheat on one's farm for personal use is not beyond the reach of the power of the federal government under the Commerce Clause. Sharp law students understand Wickard v. Filburn as a demonstration that the judicial branch is subject to and conscious of the relationship between popular opinion and the ability of the courts to exercise their power; less sharp law students fondly remember Wickard v. Filburn as a demonstration that they are smarter and more true to the pure exercise of legal judgment than every member of the U.S. Supreme Court were one day in 1942.

That the Medicare expansion question was granted certiorari surprised me. Specifically, it is only the expansion of Medicaid and not the whole program itself that is being challenged. Medicaid itself appears to be comfortably constitutional as an exercise of the federal government's power to tax and spend under Article I, Section 8 of the U.S. Constitution. Complaining that Medicaid is coercive as applied to the states seems similar to complaining that the White House is white; it is true, but constitutionally irrelevant.

Finally, there's the question of the severability of either of the Medicare expansion or the individual mandate from the act. This question only comes up if the court finds that either provision is unconstitutional, but if it does come into play the entire Affordable Care Act hangs in the balance. Effectively, finding that a provision is so essential to the legislative scheme of the Act that the Act cannot function without it is a judicial undoing of the entire piece of legislation. I call this the Scorched Earth Holding. Just a little reminder, the private health insurance market before the Affordable Care Act was not functioning well at all, and indications were that, at least in some states, the marketplace had entered a death spiral. A United States without the Affordable Care Act may well soon become a United States without individual health insurance plans.

My prediction is going to disappoint you--I think SCOTUS might punt on this one. I honestly do not think that Kennedy is willing to strike down the entire Affordable Care Act, and I expect that Breyer, Ginsburg, Kagan, and Sotomayor will vote as a block for the constitutionality of each provision. While we will not be privy to the goings on in chambers, the more liberal wing does have quite a bit of leverage thanks to the severability issue; if any provision looks to have five votes against its constitutionality, they can all sign on to an opinion that the provision is not severable, thereby forcing the more conservative justices to have to go all-in on striking the entire Act down. I think it is worth noting that striking down an act duly passed by the legislature is always an act of judicial activism, regardless of the political stripe of the people supporting the holding.

But, then again, six hours of oral argument is an awful lot of sound and fury if the justices plan to simply reach a politically convenient detente. A decision that disappoints everyone, namely finding that the case can't be heard by virtue of the Anti-Injunction Act, might be the court's only chance at staying above the political fray in an election year; the question is whether the Supreme Court is actually chomping at the bit to dive into the fray full-force. Past practice says no, but the Roberts Court has signaled a willingness to render decisions that have by most measures changed long-standing precedents in American constitutional law (I'm thinking of the decisions in Citizens United v. FEC and District of Columbia v. Heller). Honestly, it's anyone's guess. And that anyone is probably named Anthony Kennedy.

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Permalink | Comments (1) | March 27, 2012 06:36

Young Lawyers Blogger Stutters Hopelessly on Legal Talk Network Podcast

Posted by wlansden | Filed under

By James Bowden

Well, it wasn't quite that bad. On Wednesday, I had the privilege of contributing to a podcast on eugenics and North Carolina's recently announced restitution program for victims of involuntary sterilization on the Legal Talk Network with Alfred Brophy, a professor of law at the University of North Carolina School of Law at Chapel Hill as moderated by J. Craig Williams. If you want to find out what happens when a law professor who has published two scholarly works on a legal issue discusses the subject with a blogger who wrote 300-odd words about a story he heard on National Public Radio while he drove to work, here it is.

Thank you to the Legal Talk Network for the opportunity to participate and to Alfred Brophy for, well, putting up with me.

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Permalink | Comments (1) | February 10, 2012 11:39

Ninth Circuit Rules Proposition 8 Unconstitutional Under Rational Basis Review

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By James Bowden

Breaking news out of the Ninth Circuit Court of Appeals: a three-judge panel has ruled California's controversial Proposition 8 unconstitutional. The most interesting aspect of the decision is the court's rejection of Proposition 8 as unconstitutional under rational basis review, the lowest standard of constitutional scrutiny: "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples." That is a benchslap of somewhat epic proportions.

It is possible that review under the highest level of review, strict scrutiny, may have been appropriate here--the U.S. Supreme Court indicated that legislation regulating marriage and procreation "involves one of the basic civil rights of man" in Skinner v. State of Okl, ex rel. Williamson, 316 U.S. 535, 541 (1942). No matter, though, as a law found unconstitutional under rational basis review likely wouldn't stand a chance under the strict scrutiny standard.

The defendants in this case may now apply for rehearing en banc or may apply for a writ of certiorari with the U.S. Supreme Court. Based on the politics surrounding the case, the smart money is on the latter.

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Permalink | Comments (1) | February 8, 2012 06:12

Aligning Employee Benefits with Desired Employee Traits - Is There a Better Way?

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By James Bowden

A large number of the clients I work with are for-profit healthcare companies, and a significant percentage of those clients focus on providing healthcare in non-urban areas. Nonprofit healthcare providers in rural America face a number of very significant challenges, including substantial difficulties in hiring and retaining good physicians and growing amounts of bad debt caused by an unfavorable ratio of patients receiving unreimbursed care to patients covered by private health insurance. For-profit healthcare companies are well-suited to alleviate theses problems. Three of the most notable benefits that for-profit healthcare companies can offer non-urban healthcare providers are (1) access to the capital markets to obtain working capital and cash for necessary capital investment, (2) economies of scale to diffuse back-office costs and management expenses, and, most relevant to this post, (3) more effective physician recruiting and retention programs.

A large amount of thought around recruiting and retention is built around physician compensation, which is a very difficult topic considering the restrictions on physician compensation presented by the federal Stark and Anti-Kickback laws. The impact of these restrictions are all the more important in non-urban healthcare recruiting. Put simply, the economics and the regulatory environment that non-urban healthcare providers operate under restrict the ability to draw talent with large compensation packages. That is why my ears perked up to this story about "mission-focused medicine" at a hospital in Ashland, Kansas. The logic is beautifully simple: physicians that are willing to be healthcare providers in rural America often aren't particularly motivated by money--they are happy to take a pay cut to work in a setting where their help matters to the community. The answer is similarly elegant: the Ashland Clinic now offers eight weeks off to do overseas missionary work. It looks like the plan is working--the clinic has physician staff where it had none prior to the implementation of mission-focused medicine.

What the Ashland Clinic is doing is interesting. Instead of asking how much they are willing to pay for the people that they want, they are instead asking what traits they are looking for in people they hire and what things those people are driven by and recruiting accordingly. The type of people that a company seeks to hire and the manner in which the firm compensates them can have profound effects on the behavior of the employees. I think the most profound example is presented by hotel staff at the Taj Mahal Palace Hotel in Mumbai, India. When that hotel was attacked by terrorists in 2008, hotel employees who had every opportunity to flee with their lives instead stayed to help the guests. The kitchen employees formed a human shield behind which hotel guests escaped to safety; in the process each was shot to death. The general manager kept working to save the hotel patrons even after his family died in the fire set by the terrorists. A Harvard business professor traced the selflessness of the Taj employees to recruitment and reward--the hotel is owned by a family that puts a high value on social justice, and employees are hired from small communities on the basis of their educator's recommendation that the recruits were respectful and empathetic. The employees are then rewarded promptly for acts of kindness towards guests. The unintended consequence appears to be that the Taj Hotel unwittingly hired a staff chock full of real heroes.

So how does this post have anything to do with young lawyers? Well, frankly, our recruiting model doesn't hold up quite as well as those of the Ashland Clinic and the Taj Hotel. I don't think I have to get too deep into it, either, but I think it is pretty safe to say that the lures large firms generally hold out to recruits are generally twofold: money and power. That may be dangerous in a profession where instilling trust and showing dedication are of paramount importance, and selfishness is an Achilles heel. It might also explain the old saying that the best students in law school end up becoming law school professors. 

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Permalink | Comments (2) | February 7, 2012 07:33

Restitution for Victims of North Carolina's Involuntary Sterilization Program Does Not Mark the End of American Eugenics Laws

Posted by wlansden | Filed under ,
By James Bowden

On Tuesday, a task force in North Carolina concluded that it would request restitution of $50,000 from the North Carolina legislature to each of the estimated 1,500-2,000 living victims of the state's formal 45-year experiment with eugenics. As recently as 1974, people deemed "undesirable" by North Carolina authorities (most often minorities, women, the mentally ill, and the impoverished) were subjected to involuntary sterilization.

This is unfortunately just the last page of one chapter in the history of America's experimenting with the practice of eugenics. Much like the fact that almost 150 years after the ratification of the 13th Amendment the United States still struggles to annihilate human trafficking and slavery within its borders, most Americans are unaware of the history of eugenics and forced sterilization in the United States.

The practice also has a rather dark history with the U.S. Supreme Court, which, when given the opportunity, granted the practice purported constitutionality. In what was almost certainly the worst opinion of his career (and ranking as one of the worst decisions in the history of the Supreme Court, along with the Dred Scott case and Plessy v. Ferguson) Oliver Wendell Homes, Jr. declared that "three generations of imbeciles is enough," upholding the constitutionality of the sterilization of Carrie Buck, a Virginia woman who had been institutionalized as "feeble minded," in Buck v. Bell, 274 U.S. 200 (1927). Later scholarship indicates that Carrie had likely been raped by a successful doctor who employed her as his housekeeper and insisted on her being committed to protect himself, was institutionalized by her ne'er do well mother, and received ineffective assistance of counsel at trial from an attorney who had inexcusable conflicts of interest and who may have deliberately lost the case. Nonetheless, Carrie Buck lost her petition before the US Supreme Court in an eight-to-one decision and was sterilized against her will upon her return to Virginia. Her daughter, Emma, whom Holmes regarded as the third generation of imbeciles, was perfectly normal and did well in school. The eugenics expert that recommended Carrie’s sterilization went on to be honored by the Nazis for drafting Germany's "Race Hygiene" law, the direct legal progenitor of the Holocaust.

Following Buck v. Bell, eugenic sterilization laws were passed by an increasing number of states, and by 1956 27 states had sterilization laws on the books. Even after Skinner v. State of Oklahoma, 316 U.S. 535 (1942) prevented the application of compulsory sterilization to convicted criminals under a statute that excluded white-collar crimes on equal protection grounds, the practice continued. Eugenics fell out of favor in the U.S. after the atrocities committed by the Nazis in the Holocaust and subsequent defenses raised by war criminals at Nuremburg, some of which cited American eugenics practices as evidence of the permissibility of genocide, but the statutes remained on the books across the country. In North Carolina, the practice continued until 1974. Oregon maintained a Board of Social Protection (f/k/a the Oregon Board of Eugenics) until 1983.

Here's the kicker--under existing American constitutional law, forced sterilization is technically constitutional. The most recent case, Poe v. Lynchburg Training School & Hospital, 518 F. Supp 789 (W.D. Va 1981), found that sterilization did not violate constitutional rights.  At least as a technical matter, the law of the land still tolerates the involuntary sterilization of some of the most helpless among us.

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Permalink | Comments (3) | January 12, 2012 12:08

How to Use the iPad (iPhone) and iOS 5 in Litigation

Posted by wlansden | Filed under

By Brian Malcom

You have an iPad. You're an attorney and, worse yet, a litigator. Now what? The iPad is nothing new.  That sentence is shocking to read, but it is true. The iPad hit stores in April 2010.  The iPad 2 is a success, and we are nearing the release of the third-generation iPad.  What the iPad has lost in novelty, it has gained in utility. The native iOS 5 software and the App Store contain useful tools and applications to help you, the litigator, get the most out of your iPad or iPhone.

The following are some iPad and iOS features, applications and tips that litigators might find useful: 

iOS Features:

- VoiceOver.  (Settings > General > Accessibility).  Eyes tired?  Long day staring at documents?  Don't feel like reading that 500-word email?  In the car at a stoplight and don't have time to read the whole email?  Why not listen to it with VoiceOver?  If you have an iPad or iPhone, you already have the capability.  Simply adjust your Accessibility settings so that VoiceOver is on, point to text and let your iDevice read the contents of your screen to you.  For quicker access to the VoiceOver feature, go to the Accessibility settings screen and adjust "Triple-Click Home" to "Toggle VoiceOver".  Now VoiceOver can quickly be turned on and off by tapping the Home button (circular button with the square in it on the iPad body) three times in quick succession. Caution: Be sure to familiarize yourself with the touch controls while VoiceOver is on before turning VoiceOver on.  The touch controls are slightly different.  Here are some quick tips on VoiceOver touch controls:

  • Tap once on text to read the text aloud until the next HTML break, such as a paragraph break.
  • If you tap an on-screen button once, it will read the button function aloud and then you must double-tap the same button to activate the button. 
  • You must scroll with three fingers, instead of one. 
  • To jump to the next text field like Tab does on a keyboard, swipe one finger to the right.  To go back, swipe one finger to the left. 
  • To have VoiceOver read continuously through an email and not stop at each break, swipe two fingers in a downward direction on the screen after selecting the starting paragraph.
  • Remember, VoiceOver was designed to assist users with vision problems.  If it doesn't make sense to you why VoiceOver is doing something, consider whether it would be helpful if you could not see your screen. 
- VPN and RDP.  (For initial setup: Settings > General > Network > VPN).  (Once settings are saved, toggle on by: (Settings > VPN). This one may require coordination with your IT department.  iOS 5 on the iPhone and iPad allows for VPN (virtual private network) access to your office network.  This is likely necessary to access information behind the security walls of most law firm computer networks.  Plug in your firm's VPN settings and connect to the firm's network via VPN.  Once connected, you can use a RDP (remote desktop protocol) app to remotely access your office workstation.  One RDP client app that I recommend is iTap.  You will need to know certain information about your computer's identifying information and your user name and password.
- Lock Rotation.  Did someone email you a file with an incorrect orientation—in landscape when it should have been sent in portrait?  Well, if this happens to you, it can be a dizzying and annoying experience trying to tilt your iPhone or iPad just right so you can read the document.  The gyroscope and the reorienting feature of the iPad/iPhone is great...until it's not.  There is a way to stop the screen from spinning.  Go to Settings > General and review the settings under 'Use Side Switch to:'.  If 'Mute' is checked, a double-tap of the Home button and a swipe of the App Tray to the right is how you will access your screen orientation lock button (double-tap home button and a swipe of the App Tray to the right is also how you access Lock Rotation on your iOS 5 or later iPhone). If 'Lock Rotation' is selected, the slide switch on the side of your iPad above the volume controls will toggle your lock rotation feature on and off. If your screen continues to spin after locking the rotation, consult a physician.
- Mirroring.  Want to project the display of your iPad or iPhone on to a television or other screen for presentations or meetings?  Mirroring is a good option.  With an iPad/iPhone/iPod Touch running iOS 5 or later on the same WiFi network as an Apple TV (or the proper direct connection cable), a user can create a mirror image of what she sees on her iOS device on the screen connected to the Apple TV.  For instance, you can display what you see on your iPad on an LCD television.  This might be useful for presenting PDF files, web pages, or even training others on how to use the iPad.  Learn more about setting up and using Mirroring here. 
-AirPlay.  AirPlay also requires an iPad/iPhone/iPod Touch running iOS 5 or later connected to the same WiFi network as an Apple TV.  If you do not need all of the features of Mirroring and simply want to play a video, song, or display photos in a slideshow type format to a group, AirPlay might be right for you.  Learn more about setting up and using AirPlay here.

Apps:

- iAnnotate or GoodReader.  Litigators live and breathe PDFs.  Court filings, discovery productions, and client files all flood a litigator's email account with PDF files. Inevitably, an attorney will want to markup a PDF, make notes on a document or store certain PDFs on the iPad hard drive for quick retrieval later. Attorneys with iPads should have a PDF annotation and organization app. In my opinion, there are two clear leaders in this app category, iAnnotate and GoodReader.  Tip: While any PDF can be marked up and annotated in these programs, ensuring that the PDFs you use are OCRed prior to use with these apps will allow a user to make use of the full suite of features in both apps. To the extent possible, every PDF should be OCRed. (OCR is an initialism for optical character recognition.  It means the PDF is no longer just a flat image of the document. An OCRed document contains text recognized by computing devices--allowing text search and character highlighting.)  
  • iAnnotate.  A robust PDF markup and annotation program, that allows highlighting, underlining, typed notes, call-out notes, and more. If you will be doing a lot of handwritten annotation, I would recommend the purchase of a stylus. Targus makes a good, inexpensive stylus for the iPad. Google it or find a Best Buy.
  • GoodReader.  Learning from iAnnotate and similar programs that beat it to the punch, GoodReader recently updated its app to include substantial PDF markup and annotation tools.  The current features of this app are too many to list in this post, but the following are a few highlights litigators may find useful: 
    • Store files, such as but not limited to PDF files, on the iPad hard drive for quick, ready access;
    • Organize multiple files in folders and subfolders;
    • Highlight, markup and annotate PDFs;
    • Search OCRed PDFs;
    • Transfer files to iPad via USB, WiFi, email attachment or web download;
    • Attach files within GoodReader to emails (This is big, since the native Mail app in iOS 5 will not allow for email attachments other than pasting photos.);
    • Data protection or file encryption for locally-stored files;
    • Password protection of the entire GoodReader app or individual files with the app;
    • AirPrint; and
    • Integration with iCloud, Dropbox, other cloud data services. 
     

-Keynote.  An app version of Apple's answer to Microsoft PowerPoint, use Keynote to create, edit and deliver slideshow presentations. For presentations, get a HDMI cable to hook up to a television or use AirPlay Mirroring with an Apple TV.  Not a perfect app, but it may be the best app at what it does.
- Pages.  A trimmed-down and touchscreen-friendly word processing program, this app is no replacement for Microsoft Word on a desktop or laptop. Still, it is a useful tool for creating or editing the formatting of word processing documents. This post was created primarily using Pages.

- FedCtRecords.  Use PACER? Want access to PACER on your iPhone or iPad? This app is new and allows users to access PACER using their account information.  Since the app is relatively new, I have not had a chance to thoroughly test the app. There is only an iPhone version of the app for now, but it works with the iPad through the iPad's iPhone app compatibility feature.  This app is free for a limited time. After that, the rumor is it will be $19.99. Act now and save your $20.
- WestlawNext.  Westlaw research on your iPad, but this is not yet available for the iPhone. This app is highly functional with a WestlawNext subscription. Research case law, statutes, secondary sources and more on your iPad. Highlight text and make notes on Westlaw research materials. Save to WestlawNext's cloud-based, user-friendly folder storage. It is great for research on the go and may help you find that case you need even while you are in the courtroom. 

Accessories:
- Get the bigger hard drive?  If you are going to be storing large files or a number of files of any size on your iPad hard drive, this includes all your iTunes movies and your vacation photos, pay the extra money for a larger hard drive. Sure you could use cloud storage to virtually expand your hard drive.  But storing files in the cloud will require web access and patience to retrieve when those files are needed. Access to the former is sometimes difficult, and the latter is simply impossible for litigators.
- Keyboard or No Keyboard?  I am comfortable using the iPad on-screen keyboard. I don't want the bulk of a Bluetooth or dock keyboard, and that is one more thing I have to remember to carry.  Some people hate the lack of tactile feedback from the on-screen keyboard. This decision is pure preference. One point I would make is that if you prefer having use of your entire iPad screen, as opposed to two-thirds of the screen when the iPad soft keyboard is in-use, you may want an external keyboard.
- Case.  There is a reason there is no question mark after this header. You (or your firm if you're one of the chosen few) just shelled out a good bit of money for an iPad. iPads break or scratch. People are clumsy. I am sure Apple is working on an indestructible iPad, but until then, why wouldn't you protect your device? What's that?! You prefer the look of the iPad as Steve Jobs himself intended? Ok, then don't whine to anyone when your preference for aesthetics over practicality and protection bites you. Search the web. There is a wide array of iPad cases, covers, and shields out there to help protect your shiny object. Some even look nice. If you're an external keyboard person, there are a number of cases on the market with external keyboards integrated into the case itself.
- Stylus? If you think you want to create handwritten notes, draw, design, or simply hate fingerprints, a stylus may be right for you.  You can also digitally sign documents with a stylus and PDF annotation program.   

And two to grow on . . .
- Backup your device regularly, and encrypt your backup file if you store confidential information on your iPad or iPhone. New features such as wireless syncing and iCloud make this process easier than ever (well, less wire-intensive at least). Do it or risk regret.
- Siri Dates.  While this sounds like the worst name ever for a dating site for Apple fanboys and fangirls, Siri does a great job of calculating calendar dates and calendaring appointments.  If you have an iPhone 4S or otherwise have access to Siri (cough...cough...hacked), here is a quick tip.  Let's say your client has been served with a complaint and under the applicable rules you have 30 days to respond.  You can simply ask Siri, 'what is 30 days from December 25, 2011?'  Siri will respond with the date of 30 days following December 25, 2011, January 24, 2012.  If your client was served with a complaint on Christmas, I feel sorry for your client.  But you get the idea.  While Siri will not explain to you how deadlines are calculated under the applicable rules with respect to holidays, weekend and how to count the number of days (yes, I asked), a quick comparison of the result of the Siri inquiry and your own separate, educated calculation will tell you if Siri is counting the days correctly under the relevant rules. You can figure out what to do if the end date falls on a holiday or weekend on your own. Lawyer disclaimer: Siri is not a substitute for independent judgment. Heaven help us all when it is.

YLB - How to Use the iPad.pdf (442.34 kb)

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Permalink | Comments (0) | December 30, 2011 11:02

Don't Worry about "Holiday Networking" – Make Connections and Have Fun!

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By Kathleen Pearson

So you made it through law school finals and headed home for the holidays.  Congratulations!  The only problem now is that your CSO (and everyone else for that matter) keeps telling you that you need to "network."  Whether you have a job lined up or not, that word keeps buzzing around like an annoying gnat.  Don’t they know you are wiped out and the mere thought of having to do something else is going to send you right over to the edge?? 

"Networking" has become one of those insidious corporate buzz words that seems to be the panacea of all problems anyone might ever face. Because it has an official name, it seems unattainable by anyone that is not a perfect conversationalist or social butterfly. The word itself now seems filled with an undercurrent of wanting to get something from the other person – i.e. a job.  That's a lot of pressure for both you and the other person!

Relax.  The holidays should not be filled with even more pressure and tasks.  It should be about having fun, reconnecting with old friends and family, and making new connections with interesting people.  Instead of focusing on networking, focus on connecting.

Just in case you have forgotten, here is a quick reminder of how to connect with others and have fun over the holidays:

  1. Go to a holiday party with friends and family. 
  2. Talk about your experiences in law school with friends and family
  3. Ask your friends and family what they have been up to
  4. Meet new people at the party and ask them about their interests
  5. Tell the new people about yourself and your interests
  6. Promise to keep in touch with the people you just talked to!
Add some music, food and perhaps a little egg nog, and you are well on your way to having fun and making connections with new people.  By recharging your batteries at home and talking about all those new experiences you just had in law school, you will come back to school refreshed and ready for a new semester. 

 

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Permalink | Comments (3) | December 14, 2011 08:23

After Successive Legal Victories, Occupy Nashville Holds On Tight

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By James Bowden

The Occupy Wall Street movement looks like it is waning, or at least hibernating for the winter. In New York, Zuccoti Park has been cleared out. The Occupy LA, Occupy Philadelphia, and Occupy Oakland encampments are gone. But if the movement is in retreat, no one told the Occupy Nashville folks camping out on Legislative Plaza, right outside my office doors. Winter is settling in, and over the last week we've had torrential rains and freezing temperatures, but they are still out there every morning when I get to work. Occupy Nashville is holding tight to their spot on Legislative Plaza after several interesting legal twists and turns. Their tenacity may make them a unique outfit within their movement.

Tents sprang up at the foot of the Tennessee State Capital early in October. Later that month, reports of all sorts of not-entirely-legal-or-appropriate behavior led Tennessee Governor Bill Haslam to impose a curfew on Legislative Plaza from 10 p.m. to 6 a.m. The curfew was announced the afternoon of October 27th. The Tennessee Highway Patrol (THP) arrested protesters early in the morning of October 28th for violating the curfew.

I think it is an understatement to say that it didn't go so well for the Governor and the THP. A Magistrate Judge first refused to hear the charges against the protesters on the grounds that the protesters were not given sufficient notice of the curfew, and released them for lack of probable cause. The THP tried to arrest protesters again at about midnight on October 28th; this time, Metro Night Court Judge Tom Nelson issued an epic benchslap – unable to identify any legal authority for the curfew, he again found no probable cause for their arrest and ordered all arrested protesters released. Release on a finding of no probable cause at arraignment is a very, very rare occurrence. Two in a row? Probably a record. To add insult to injury, the THP was called out for a less-than-covert attempt at infiltrating the encampment. Soon after the arrests, U.S. District Court Judge Aleta Trauger issued an injunction against enforcement of the curfew. A decision isn't expected until February at the earliest, but I expect it to be well read and well reported when it arrives.

So, the Occupy Nashville protesters are still there. I went down and walked around Legislative Plaza after work for a few minutes last night. It is a surprisingly well organized little encampment, with a mess tent, a first aid tent, a front office, and even a "social media" tent. The protesters are perfectly friendly, and happy to talk to anyone who will listen. I hope they stay warm and safe, have happy holidays, and are ready for their hearing next year.

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Permalink | Comments (4) | December 8, 2011 13:21

The [Surprise] Driver of U.S. Legal Policy

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By James Bowden

The United States' political system is controlled by two major political parties, one generally politically liberal and one generally politically conservative. That is the way we think of the political policy-making process: the left and the right fight for enactment of their policies and, ever so rarely, compromise. Query: what if the actual conflict implicit in the U.S. political and policy-making process wasn't the conflict between right or left, or rural versus urban, or racial, or any of the main dichotomies that we use to try to make sense of policy making. Here's the surprise: the main conflict is really generational. Presented in customary bullet-point format for your perusal:

  • The Wealth Gap. Forget the 1% versus the 99%. Even the fact that the top 1% of wage earners own more of the nation's financial wealth than the bottom 50%, or that in 2007 the top 1% of all income earners in the U.S. made 23.5% of all income, more than the entire bottom 50%. The starkest statistic is the difference between the change in wealth of the old and the new generations over the past several decades. Since 1984, older people have seen a 42% increase in their net wealth while their younger counterparts have experienced a 68% decrease. I sure hope they aren't planning to take it all with them. 
  • Debt and Taxes. For the past decade, tax increases have been the most-hated villain in Washington. Really, it goes back further than that. Since 1986, maximum marginal tax rates have been historically low, particularly compared to what the Greatest Generation paid. Over the same period, the U.S. debt has increased seven fold. The average baby boomer was between 22 and 40 in 1986; their prime income earning years have overlapped with an uninterrupted period of historically low taxation, over which period public debt exploded. Now the baby boomers are cashing out--the first of the baby boomers became eligible for Medicare and Social Security in 2011. They are retiring, and won't be paying in anymore. Guess who picks up the tab by default? 
  • The Fiscal Battle. We saw a battle over raising the debt ceiling this summer, and are facing sequestration if the “supercommittee” that resulted from the compromise fails to agree on cuts to federal spending in excess of $1 trillion. What is on the chopping block? The big losers are defense (which is a large employer of younger workers), education (which is supposed to provide the younger generation with opportunities), and spending on programs designed to reduce unemployment (which, as discussed below, effects the younger generation inordinately). What are the sacred cows? The spending items that are bringing the committee to loggerheads are entitlement programs like Social Security and Medicare (which benefit the older generation effectively exclusively) and the possibility of raising taxes (which, as discussed above, has the effect of benefiting the older generation). 
  • The Cost of Success. The saying goes that there are two kinds of good debt--debt the incurrence of which produces a positive net change in wealth. One is a mortgage and the other is student debt. The saying is getting pretty difficult to stand behind these days. Grad PLUS loans are not dischargeable in bankruptcy and guaranteed by the most credit-worthy institution in the world--the full faith and credit of the United States of America. They carry an interest rate of 8.5%. The interest rate on the last car I bought was 7.1%. That means that in 2007 a non-dischargeable, absolutely guaranteed debt carried an interest rate 140 basis points higher that a dischargeable loan secured by a depreciating asset which was likely underwater the moment it rolled off the car lot. Since then, it has gotten worse--most interest rates have dipped over the past few years, but student loan rates are fixed. A person's cost of capital for a fancy new car is lower than for an education, and the average indebtedness of a law school grad is $100,000, which buys a pretty fancy car. Or two. Or three. That is insanity. 
  • The Tyranny of High Expectations. Just like every generation [allegedly] works to pass a better world on to their children, each generation is expected to make good use of the benefits they receive from the generation that went before them. I never thought I would do this, but I am going to paraphrase Cracked.com: members of the young generation were told they needed to go to school and work hard so they didn't have to flip burgers. Now that the younger generation has gone to school and worked hard, the economy is feeble, the impact of unemployment inordinately falls on them (young adults age 20-24 have an unemployment rate of 14% compared to 9% for the population overall and 7% for people over 55), and they are being criticized as entitled for ... you guessed it: not wanting to flip burgers.
Why does the conflict of generations matter? Think of the impact on public policy, including tax policy, entitlements policy, public finance, education and fiscal policy, just to name a few, if the debate is cast in the contrast of decisions' impacts on different generations. The next decades are going to see important legal developments involving the enforcement of promises made to the public through entitlement programs, the protection of wealth, and innovations in mechanisms for the passive investment in wealth-generating assets. If attorneys can advise their clients and legislators from a perspective of the benefits and detriments to them and their constituents based on the disparate impacts on generations, long-term results are likely going to be better for clients and everyone in general. If not, someone is definitely getting hosed.

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Permalink | Comments (0) | November 17, 2011 05:40

Veterans at the Nashville Bar

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By James Bowden

Last year for Veterans Day we here at the Young Lawyers Blog gave recognition to some of Nashville's lawyers that have served under the stars and stripes. It feels like a good tradition to continue.

James O. Bass, Sr. graduated from Harvard Law School in 1934, and has for the most part practiced law at Bass, Berry & Sims ever since. It is no coincidence his name is on the letterhead--Mr. Bass founded one of Nashville's and the U.S.'s great law firms. In October of 1942, Mr. Bass, having established a successful law firm and served as a member of the Tennessee House of Representatives and a State Senator, took a commission to the Judge Advocate General's Department of the U.S. Army and went to Germany to fight Hitler. He must have done a great job, because he left Germany as a Lieutenant Colonel in 1945 with a Bronze Star. Having fought injustice abroad, Mr. Bass returned to Nashville to fight injustice at home, playing a pivotal role in advancing civil rights as the chair of Nashville's Committee on Human Relations. The word "hero" isn't enough for Mr. Bass, who turned 101 this summer. You can still call him in his office--he shows up at work every morning to this day.

Bob Tuke served as an officer in the U.S. Marine Corps, and went to Vietnam as part of the Marine Combined Action Forces, earning the Vietnamese Cross of Gallantry. Bob earned a trunk full of awards in his time, but the Cross of Gallantry was awarded for a specific action he took, and it's the only one he's willing to let me brag about. He came back to Nashville and went to Vanderbilt for law school, and went on to serve as the Chairman of the Tennessee Democratic Party and run for U.S. Senate, all the while continuing to teach as an adjunct professor at Vanderbilt University Law School. He spends his days practicing law at his firm, Trauger & Tuke, and continues to be active in politics. From time to time he even puts up with me.

Waller Lansden's own Joseph A. "Woody" Woodruff somehow managed to have a successful legal practice and serve in the U.S. military for 30 years. After graduating from the University of Alabama School of Law, Woody returned to active military service as a Judge Advocate in the U.S. Army. Nowadays, when he's not practicing law he's practicing as a sports writer. Woody's an avid Alabama fan, so don't be surprised if he always picks the Crimson Tide for the win. Woody even finds time to be active in politics, and is often the Yin to Bob Tuke's Yang in that respect. If you want to see an example of his leadership, read his firm profile--in his version of things it is always his team that succeeds, not him personally. Some might say that he learned that in the military, but I'm betting that the military learned leadership from him. We're lucky to have him.

Sean Bennett graduated from Vanderbilt University Law School with me in 2009. With a background in financial services, you'd think he would have gone for the power and glory of legal practice on Wall Street, but no; he joined the U.S. Army instead. If being universally loved by his classmates was the measure, Sean would have won the Founders Medal. His whole class is proud of him and hopes he stays safe.

This year saw a couple of very notable old soldiers fade away to serve in heaven's armies. Frank Buckles had been the last living confirmed veteran of the First World War, serving as an ambulance driver on the Western Front. Having served in the War to End All Wars, He was held prisoner by the Japanese in World War II as a civilian. Buckles died in West Virginia on February 27 of this year. Flags flew at half staff to honor the final death of a generation who gave so much they were almost completely lost.

Richard Winters, made famous late in his life by the HBO series "Band of Brothers," found himself the leader of the 101st Airborne Division's Easy Company on D-Day when his commanding officer was killed over Normandy during the invasion. He lead the division through D-Day, a failed expedition in Belgium, the worst of the Battle of the Bulge, and the capture of Hitler's sanctuary, Berchtesgaden. The last of Easy Company's living commanders, Major Dick Winters died in peace on January 2nd of this year.

On this Veteran's Day, remember all veterans, including the ones that still walk among us.

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Permalink | Comments (2) | November 10, 2011 13:16