The Electoral College and Its Value to — AH F*CK IT HAPPENED AGAIN

As you may be aware, there was a little election recently here in the states. The two major-party candidates, each considered deeply flawed in certain non-trivial ways, squared off in an effort to become President Obama's successor. In the end, Hillary Clinton won 48% of the vote, Donald Trump won 46% of the vote, and the rest was split by so-called third party candidates.

What a nail-biter, you might think. I'm sure Trump supporters were disappointed to have come so close yet come up short and Clinton supporters are breathing a sigh of relief. But wait a minute, you say, I thought the news said Trump was going to be the President?

You're right, he will be (at least barring any success in convincing some "faithless electors" to jump ship). In the United States, the popular vote does not determine the presidency. The real vote is held when the "Electoral College" convenes in December, which is an arcane gathering of "Electors" representing the winners from each state in a number roughly proportional to that state's population in accordance with Article II, Section 1 of the U.S. Constitution. In 2016, the Electoral College will, for the fifth time in American history, make someone President who won fewer votes than his opponent.

If that sounds a little bizarre to you, you are not alone. This Electoral College system has been deeply unpopular in the U.S. with voters of all parties for years. According to FairVote, there have been at least 700 proposed amendments to modify or abolish the Electoral College over the course of U.S. history — more than any other subject of Constitutional reform.

And yet, it remains. Why? Well, mostly because of inertia. The Electoral College is enshrined in the Constitution itself, and the Constitution is very hard to change. Counting the first ten Amendments of the Constitution together (as they were adopted as a package, i.e., the Bill of Rights), the Constitution has only been successfully amended 18 times in its 228 years of existence. There are two paths to amending the Constitution: proposal by a 2/3 vote of both houses of Congress, or the much more difficult (and accordingly heretofore never employed) "national convention" method in which an Amendment is demanded by the legislatures of 2/3 of the states. Then, after one of those has been accomplished, the proposed Amendment must be ratified by 3/4 of the states, either via their legislatures or by state-ratifying conventions.

Worse, now that the Electoral College has operated to the benefit of the Republican candidate twice in the last 16 years, its abolition is now irrevocably intertwined with partisan politics. You may have already received a condescending "civics lesson" in defense of the EC from your Republican friends on social media. Basically, the defense is as follows: F*ck California, that's why.

OK, that's a bit pointed. The more nuanced argument for keeping the EC is that, without it, a candidate might be able to win by maximizing his or her support in major urban areas and ignoring voters in lesser populated states who assumably have different values and priorities. This is in keeping with the strong sense of federalism that permeated the founding fathers' thinking, i.e., that we are a nation of states not citizens.

Of course, the counterargument is that, no, we are not a nation of states but of people. Increasingly, those people choose to live close to each other, often seeking the economic and cultural benefits that come from doing so. Certainly that fact should not operate to make their voices any less important than others on an individual basis. These are people that will be affected, as individuals, by the President's decisions on all manner of important issues from policy-making, to Supreme Court selections, to declaring and waging war and so forth. People are also very mobile these days, meaning that today's LA voter might be a mid-west resident next year or visa versa. It also seems quite shallow to assume that all urban dwellers or all rural state residents hold the exact same values.

Second, on a more practical level, the EC as it is now operates to marginalize voters based on accidents of geography. Millions of people in urban and rural areas alike watch helplessly as "swing states" like Florida, Ohio, or Pennsylvania decide who gets to be their President. EC apologists will say that swing states change over time, but that is small comfort to people who didn't win the swing state lottery in a given year.

In the end it's about fairness. It's about democracy. It's that every vote counts. Right now, not every vote does. According to one calculation, a an Arizona resident's vote is worth 600x a Californian's vote! This is appalling.

What can you do? Contact your elected officials! Tell your senators and representatives to support a popular vote for President and abolish the EC. Tell your state government representatives to support the National Popular Vote Interstate Compact if you live in a state that isn't already signed on; it really needs some big traditionally red states to sign on — Texas, I'm looking at you!

It won't be easy. It will require persistence and patience. But in a world where Donald Trump can become President of the United States, anything seems possible.

Vehicle Bill of Sale

I didn't find a good Bill of Sale for a vehicle sale in New York when I was trying to sell my car, so I put this one together. Feel free to use at your own risk. I am not your attorney and only your attorney knows the specifics of your situation. (I hate having to say that).

'Til next time.

On Sadness and Discontent

While many people like to complain about Facebook or people's Facebook-related activities (this blog especially), I think one of the great things about it is the ability to catch some unfiltered glimpses of your friends grappling with the less pleasant aspects of life and realizing that we all are suffering in our own way.

    

The more I think about it, and the more I hear from friends and others who are suffering, I think sadness and discontent is less an acute affliction and more a permanent feature of the human existence. Pyramids, cities, machines, and computers, for example, were not built because man was satisfied with the status quo, rather it is man’s intellect and unfailing capacity to grow dissatisfied with his current condition regardless of past success that fuels his continual yearning for progress and discovery. 

On a Darwinian level, it has proven to be a tremendously powerful strategy for the prosperity of the species. On a personal level, however, you can’t help but wonder if our ancestors had just decided that a simple life of nomadic hunting and gathering was good enough, maybe our lives would be, if more brutal and brief, happier.

Legal Careers are Random and Unfair (Life is Pandemonium)

I've been listening to the 25th Annual Putnam County Spelling Bee in preparation for a show and recently read this Above the Law post about a stay-at-home mom now mulling over some very tempting law school scholarship offers. Naturally, it made me think about the independent variables that have played into my own legal career and the Spelling Bee song Life is Pandemonium (which, incredibly and appropriately enough, I just spelled correctly without the aid of spellcheck).

In the song, the spelling bee contestants anguish over the "easy" words that their opponents are being asked and quickly come to the realization that, with all the random factors that play into competition, "[t]he best spellers don't necessarily win."

Such is building a legal career. In the Above the Law post, the law student to be (sometimes called a 0L, a reference to law students' convention of referring to which year in law school they are in, i.e., 1L, 2L, or 3L) asks the editors which of three generous scholarship offers to strongly regarded schools (Arizona State University, Washington University in St. Louis, and University of Texas at Austin) she should take, two being full-ride scholarships.

Like most 0Ls, her ignorance is palpable. She doesn't want to work in "Biglaw" and wants an academic position (without ever having taken so much as a Con Law class), but, realizing at least that is a tough row to hoe especially in this time of shrinking enrollment, she would be willing to accept a more "realistic" goal of working with the ACLU.

Why is this an ignorant statement? There are 203 ABA accredited law schools in the U.S. and the vast majority of law professors come from just two of them: Yale and Harvard. Yes, you might think we lawyers are a liberal and egalitarian bunch, but when it comes to who is going to educate the never-ending brood of baby lawyers, we prefer blue bloods. The only school that this 0L lists that is even statistically relevant to the discussion of legal academia is the University of Texas, which only rates a meager 0.25 per capita rate.

Her "backup" plan of working for the ACLU is no less starry-eyed. The ACLU is a big-time civil liberties organization and is a prestige magnet in its own right. But perhaps more importantly, an Above the Law article from the same day reported that the ACLU dumped 7% of its workforce due to budget constraints. Now, until it gets its finances figured out, you can bet that it will only hire out of necessity, making their hiring process even more selective.

Sorry, that was a bit of a tangent.  But the whole discussion makes me think about my 0L experience. No less ignorant than the author of the question above, I applied to as many schools as I could. Unfortunately, what I didn't know is that I was applying at the height of what would later be called the law school bubble. Applications were at an all-time high, 40% higher than the year before (and up 60% at my target T14 school). I got rejected by the elite schools, accepted by some border-line elites, but -- most critically -- I was waitlisted at my target school. I held out as long as I could, supplemented my application, but the numbers were just too tight. I finally received notice that I would not be selected from the waitlist.

Looking back, I wonder if I should have played it differently. Would I have gotten in if I had applied earlier (presumably when they had more spots to fill)? Should I have taken a year off and tried again? Undeterred, I went to my local regional school, did very well, and here I am.  

But hearing stories like the mom-turned-law-student still pull me back. If I were applying today, in today's less competitive market, I have little doubt I would have been accepted outright to my target school. Maybe I would have even been accepted to one of those aforementioned law professor factories (maybe not).

If so, how different would my career look? Would I have attracted offers from bigger law firms? From government agencies? From federal appellate judges? Would I be putting in a few years answering the biggest legal questions of our time as I'm groomed for a life in the ivory tower mulling those questions' place in history and legal theory?

There's nothing to come of all this backwards gazing. But I have little doubt that supermom and many like her, with qualifications no greater and quite probably lesser than mine, will have far greater leverage in this time of shrinking enrollment than I did and be granted far better opportunities. But that's always the case, I suppose. In all stages in life, theater and law alike, you will watch as people with less ability than you rise to heights you won't soon, or may never, attain.

All you can do is concentrate on the words you're given.

A Kiss Is Not a Contract, But Marriage Is

Like many of my posts, this one is inspired by social media. The emergence of social media is revolutionary for many reasons, but, as the name implies, social mores still apply. You simply can't say everything you want to about a subject, or at least you can't say everything you want if you also want people to like or respect you. This is especially true when the topic you are going to critique is an institution that many people are heavily invested in, to wit, the institution of marriage.

But this blog fears no such consequences, largely because the stats indicate that no one is reading it (only a small exaggeration with the exception of, for some reason, my juvenile post about theater people promoting their projects featuring Homer Simpson gifs ... woohoo?). So let's dive in, shall we?

[P]renups are to marriage as condoms are to sex: sure, they're a good idea, but they're a real mood-killer. 

Recently, a lawyer friend of mine posted on Facebook a lighthearted, but timely, warning to think twice about using the holidays as a time to propose. One of the several reasons he cited, in true lawyer fashion, was a perfectly valid point that giving an engagement ring as a Christmas gift undermines the ability to recover the ring should the engagement be later called off. This is a somewhat interesting topic itself and is well explained here.

I gave a similarly lighthearted response opining that maybe the newly-minted fiancée, in her holiday and engagement-induced euphoria, wouldn't mind signing a brief statement of understanding that the ring is given on the express condition of the occurrence of marriage. After a few more tongue-in-cheek riffs on the romance of legally-binding agreements, the OP's fiancée responds, in an unfortunately serious and somewhat stereotypical manner:

Many of Future Mrs. OP's friends quickly agreed, and, of course, so did Mr. OP (he's not an idiot). The subject quickly turned to the mutual disdain of prenuptial agreements for essential the same reason. Though a bit eye-roll-inducing, I am thankful for her post, because it means I don't have to invent a straw man, er, straw woman, upon which to base this gripe fest legally-relevant post.

Women, speaking in generalities, and even many men find the concept of prenups and conditional gifts entirely unromantic and contrary to the very essence of marriage, which according to modern social mores is supposed to be an unqualified and unconditional expression of love and devotion. As such, any contemplation of the possibility that it just might not work out is utterly taboo. A contract? Ugh. Lawyers? R.I.P. any chance at post-engagement coitus.  

But this is really not that much different from anyone contemplating a major legal event, such as purchasing a business or forming a partnership. At the beginning, the relationship is all smiles and firm handshakes as the parties are excited about the deal. After all, why would you form a partnership with someone you didn't trust?

But you would, of course, be an idiot to rely solely on trust in such a situation. If you had any sense at all, you would sit down -- with each other at least but hopefully with a lawyer -- and write down the ground rules of such an arrangement. You do this because, while you are (hopefully) wildly optimistic the deal will succeed, you know that circumstances change, people change, excitement gives way to skepticism, and you might need an exit strategy. Call it being cynical if you will, but I call it pragmatism.  And, I don't know about you, but it's a trait I find attractive, at least in moderation.

So why doesn't the same concept translate to marriage? I would guess that, to a lot of people, prenups are to marriage as condoms are to sex: sure, they're a good idea, but they're a real mood-killer. But also, I suspect most people fail to conceptualize marriage as itself a contract, with built-in terms and conditions and hefty penalties for the unwary. The law has a decidedly unromantic (and pretty archaic) understanding of marriage as an economic arrangement, in which two people merge into a single economic entity: sharing income, property, and expenses (some exceptions apply, of course). If that arrangement should end, the assets are divided accordingly -- that is, (for the most part) equally.

This "equitable" distribution can lead to some wildly inequitable results. Suppose a couple has no children, one partner works hard in a lucrative position (a medical doctor perhaps), while the other decides he is free to pursue a career less dependent on economic remuneration, like, say, blogging. Is it fair that, if the marriage ends, that he should get half of the big house in the suburbs and the nest egg that are almost solely the results of her hard work? Wasn't his freedom to pursue his own career goals, at least for a time, reward enough? Let alone that, in some jurisdictions and under some circumstances, she could be on the hook for spousal support, aka maintenance or alimony.

Modify that scenario to one where the bread winner spouse-to-be brings in children from a previous marriage. Certainly, the non-biologically related spouse will provide some support in raising those children, which undoubtedly has economic value, but what about when the marriage ends? The kids will (presumably) be going to live with the biological parent, meaning her expenses will rise while the step-parent's responsibilities will cease. Is it proper that the step-parent take half the house and assets from a the ex-spouse that is left to continue supporting her children, and all that entails (college -- eek).

This is exactly why this stuff needs to be sorted out ahead of time, romantic or not. It's not a matter of whether you are going to enter in a marriage contract; it's a matter of whether you are going to dictate the terms and conditions of that contract or accept the default terms when you say "I do."

"By the present communiqué ...": The Disconnect Between Laypeople and the Law

Welp, that ought to do it!

This blog has undertaken to explore the public's tenuous grasp of copyright before. But the recent resurgence of the above Facebook hoax has caused me to wonder more broadly about why there seems to be such a disconnect between laypeople and the law. (If you are not sure what's wrong with the above picture, I would invite you to do a search and read the far more sweeping tear-downs of the above nonsense).

Sure, I could sit back and ridicule the people who posted this thing, but the above hoax has affected a large enough swath of my friends list (to include TWO recent graduates of my law school [exasperated sigh]), so as to legitimize it as a threat to otherwise reasonable people. In their defense, most of them, after myself or one of their friends informed them -- as politely as possible -- that they were an idiot, responded with something like "lol, you're probably right ... but it couldn't hurt."

Yet, ultimately, they did not take it down. This implies that some small part of them believes that this arcane, jarbled mix of gibberish and sloppy citations to inapplicable foreign law and irrelevant domestic law that they unilaterally microblogged to the world might somehow protect them from the mysterious terms and conditions that they clicked agree to years ago and never read.

Now, this issue may implicate a host of others, such as the very real and kinda scary privacy and ownership concerns arising in a digital world, or the infuriating tendency of people to re-post bullshit without taking a second to Google the damn thing (when they are already on the internet)!  But more to my point, it raises real questions about the public-at-large's staggering rate of legal illiteracy.  To many, the above "communiqué" (as a previous iteration of the hoax called itself) is how they think the law works: you can just say some magic words and bask in legal sanctuary.

Now, maybe you're saying "Hey, legal illiteracy is good for lawyers, right? The less they know, the more they need you!" Well, not always. To initiate a legal relationship (i.e., hire a lawyer) the client must first have the legal wherewithal to realize he has a legal issue. This may be clear when the client gets arrested or receives a summons. And the billboard lawyers and the media have done a pretty good job of informing people to call an 800 number if they should slip and fall or get into a serious accident.

But in the modern world, the law touches everything. If you're a writer, a photographer, or an artist of any kind, you need to be educated about copyright. If you're an inventor, patent law. If you're a business person, large or small, you need to have some understanding of corporate structures and governance, contract law, local zoning ordinances, licensing requirements, insurance, employment law, ERISA ... the list goes on.  And everyone needs to understand tax.

But, by and large, people not trained as lawyers or who do not work with lawyers frequently fail to conceptualize a lot of these issues as legal ones for which they could or should seek a lawyer's help. And thus, they don't, or at least they don't until they do get arrested or receive a summons and frantically call a lawyer well after the opportunity to painlessly rectify the situation has passed.

Finally, the other part of the problem is the law itself. The continuing expanse of the law into every aspect of our lives is, for better or worse, unavoidable. But the law doesn't expand neatly or comprehensively, it expands amorphously like an amoeba grotesquely enveloping new particles of jurisdiction with its pseudopods. In so doing, it synthesizes it with the glob of existing law, much of which is based in centuries-old common law and other legal traditions.

In the end, you end up with a bunch of rules that come off as overly formalistic (disclaimer of warranties and service of process rules come to mind) that leave no room for common sense and that empower the legally-literate to say the right thing or file the right form to defeat on technicality an otherwise righteous opponent's interests. Not only is this inherently unfair, but it lends itself to the expectation that there are always some loophole that a crafty lawyer can exploit -- which is another toxic client mindset. Google "sovereign citizens" (the likely perpetrators of the above hoax) and you can learn about whole groups of people who believe that overly formalistic nonsense, like the existence of gold fringe on an american flag, can be invoked to exempt oneself from all manner of legal requirements.

Over recent years, however, many consumer-protection laws have been enacted to, to some extent, relax the harsher operations of law against non-business entities (i.e., regular people). And from time to time, legislators even heed advise from legal reformers and make the law more intuitive and fair. Thus, when someone tells you that you can "get out of jail free" by using some arcane legalese, and you are tempted to try -- please call a lawyer first. But barring that, try good old snopes.com.

The Supervising Attorney, Your Client

My research and writing professor in law school, who -- as good professors often are -- was both brilliant and slightly mad, explained to the room of bright-eyed future lawyers that most legal writing has two audiences that you must keep in mind: the judge (or whatever other manner of arbiter), whom you need to convince that your position is the correct one; and the client, whom you need to convince that you are doing your job.

As he often was, my professor was correct, but his explanation was not complete. He neglected to mention (or maybe I wasn't paying attention) that there often more than one "client."  For junior attorneys, the most important of these "clients" is the partner who is managing the matter and assigning you the work.

The "partner as a client" school of thought works on a few levels. First and foremost, the partner (along with his colleagues) is literally the one paying you for your legal work; thus, in a real way, they are your customer. You need to make sure that, of anyone else (the judge, the actual client, the actual client's boss) you make the the partner-client happy. While you may instinctively think that the desires of all of these clients should be aligned, there will be many instances where the way the partner wants you to do something doesn't make sense to you (writing a 50-page brief when a 10-page one would do), doesn't best serve the needs of the judge (she has to read 50-page brief saying what could be said in a 10-page one), or doesn't serve the best interests of the client (spending money for all the additional time you spent writing those extra 40 pages).

What should you do when this situation arises? Well, that depends on your situation. If you are a brand-new law clerk or junior associate, you should probably just say "yes sir/ma'am" and do your best to give them a product in line with their expectations. I know it is hard: throughout school, college, pre-law school professional life, and maybe even in law school, you've been used to being the smartest person in the room. And surely they hired you with the expectation that you will be contributing to projects with your own professional judgment, which, to an extent is true. Surely if you see a glaring in error in their understanding of the facts or their legal reasoning, or, better yet, you find something that will amplify or support the argument they want to make -- you should speak up.

But, as will be common, if you just don't like the way they've written or organized something, or if you don't understand why they've put in ten seemingly-redundant clauses in the agreement, just shut up and roll with it. Maybe you're right, maybe their writing is crap, and maybe their clauses are insipid. Conversely, you could be viewing some language as trivial that the partner, with his experience, has stumbled across before and knows that importance of.  More likely, its some combination of the two. But I can tell you (from experience) that if you give the partner something completely novel and/or redesigned instead of what the partner has indicated that he wants (or assumed that you knew) because you think it works better -- you will find yourself redrafting after being dressed down, and possibly seeing some of your billed hours on the cutting room floor.

In this way, you nurture the relationship of your partner-client in much the same way as you would for your client-client. You should do this in other ways too: communicating clearly and consistently, but taking care of manageable issues yourself; expressing excitement and appreciation when they deign to give you some new piece of work, while unobnoxiously cross-selling other services you could be doing for the client or the matter; and -- most importantly -- giving them bills/time entries that they can justify or at least live with.

Lastly, you will have to decide how to handle problem "clients." Client-client and partner-clients can both be real thorns in your side for a variety of similar reasons: they come to you with impossible situations or unrealistic deadlines, they undermine your conclusions and/or disregard your contributions, they are rude, they are unavailable, or -- worst of all -- they take issue with your bill. You will experience these with some frequency and you will need to learn how to deal.

Your default setting should of course be, especially if you are a junior associate, to accept these foibles as part of the job and do your best under the circumstances. That said, forgive but don't forget.  If the same partner consistently causes you problems, you need to assess the value of the relationship.  Is s/he feeding you a significant amount of work and is s/he billing that work? If so, then the answer might still be to suck it up, buttercup.

But if the answer is no, then you need to get out of this dysfunctional relationship. A dozen hours a year is not worth the stress of a bully partner demanding that you drop other (higher reward) assignments to work on his and then giving you grief for your necessarily-rushed product.  You need to tactfully dump him. Next time he asks you for an assignment, give him a timeline that you know he won't like: "No problem, Bill, though I am pretty swamped, is sometime next week OK?" Partners follow the path of least resistance with associates, and if you're no longer the one-stop last-second-assignment shop he's used to, he will soon stop knocking at your door. (Conversely, if you have a partner relationship that you want to nurture, be sure to set ambitious but attainable timelines).

Worse than this, and sneakier, is the deadbeat partner. This partner knocks at your door with a smile and time-intensive assignments, which you complete and bill appropriately.  All good, at least until you're looking at your time stats for the month and you notice large chunks of this time was written off. Now maybe it's a one-time thing; maybe something came up in that billing period which caused the firm to go way over budget and everybody had to eat some time for the sake of keeping the client -- it happens, probably a lot.

But if it's more often than this, and a particular partner is mowing down large swathes of your time every month -- you are essentially working for free. The firm wouldn't tolerate a client that didn't pay it's bills, and you shouldn't tolerate a partner who doesn't pay yours. You can attempt a surreptitious break-up as above, but in this case, you would probably be fully justified in being frank with the assigning attorney -- tactfully frank, of course. It's as simple as saying, "Hi Billina, I really appreciate your giving me this work, but I can't help but notice a lot of my time isn't getting billed." If nothing else, this might invite some explanation of why your work isn't getting billed.

If that explanation is not satisfactory, you might say, "I certainly understand that, Billiard, but I am falling behind on my billable hours, and until something changes, I will have to give priority to matters that I can bill." I can't say this won't lead to some hard feelings, but the partner has to understand. You are not a summer intern (anymore), your work isn't free, and your job depends on meeting your quotas.

Then again, I tend to be the kind of person who decides to speak truth to power at inopportune times, so maybe you would be better served to come up with some excuse.  But like all dysfunctional relationships, it doesn't matter how you get out, it matters that you get out.