Constitutional Daily

Founding Principles

The Tenure Paradox - Robot pimp

Slap on the Wrist for "Non-Consensual Sex" - Lampshade, Esq.

Intelligence: The Gathering - Graphic and Gratuitous

Grads are the New Illegals - Robot Pimp

Meet Entitlement Eric - Robot Pimp

Wherein I Solve World Peace - Lampshade, Esq.

A Necessary Delusion - Shadow Hand

Do you even need to shave overhead? - Lawyerlite

LSAT Jenga - Publius Picasso

Time, Place, and Manner

...Should have some links here or something.


Constitutional Daily

The PAYE Tax Bomb Doomsday

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We're going to have a little fun analyzing the tax implications of PAYE. This is all a bit back of the envelope, so some of the math is simplified, but we think it gets pretty close to the mark.

A recent graduate who starts his legal career earning $50,000 and sees annual raises of 3% will have an average salary of $70,152 over the next 20 years. If that same student also graduates with the average debt of $125,000 at 6.8% interest, he would ordinarily pay $953 a month if on a 20 year repayment plan. Under the new Pay As You Earn (PAYE) plan, he will only have to pay $441 a month. However, his $125,000 of debt generates $6800 of interest ever year, or $708 per month. The $441 monthly PAYE payment does not cover the interest, causing his debt to increase by $267 a month. At the end of the 20 year repayment period, his debt will have grown to $189,080. That is the amount that will be forgiven under PAYE.

Enter the tax man.

The PAYE forgiveness will be a taxable event. With his 3% raises, his final salary at the 20 year mark is $90,305, but he’ll be facing taxes as if he earned $279,385. His federal income tax burden on the $90k salary would have been $18,579. The PAYE tax bomb adds another $57,749. The PAYE forgiveness has removed only 46.2% of his debt. That’s some nice relief, but good luck paying the IRS $76k on a $90k salary.

As many critics of PAYE have noted, the system is being abused by schools that treat it not as relief for indebted students but a subsidy for the school. By decoupling repayment amounts from debt loads, students have far less incentive to worry about actual debt amounts. That would encourage schools to raise tuition even more rapidly than they already are as students become even less price sensitive. But in the sake of fairness, we’re going to assume they raise tuition only at the rates they have been. The average increase in student debt loads from 2009 to 2010 and from 2010 to 2011 was 16.9%. (This is higher than the rate of tuition increases because tuition is growing faster than 0L cash on hand.) For these purposes, we’ll assume jobs paying $50k now will increase their starting pay by 3% every year.

Five years from now, that $50k job will be paying $58,000, the average salary over 20 years will be $77,377, and that student will have graduated with $272,900 of debt.

PAYE will require $501 a month, normal repayment would be $2083, and the annual interest the debt accrues is $18,557, meaning after making a PAYE payment, the grad’s debt will grow by $1045 a month.

In 20 years time, when the outstanding debt is forgiven, it will have grown to $523,804. At that point, our mid-career lawyer is now earning $104,754 and would normally owe the federal government $22,624. The PAYE tax bomb adds another $206,673. Our grad now owes 75.7% of his original loan amount, and nearly double his annual salary. PAYE is offering him very little relief.

In fact, if he lived in California, Hawaii or Oregon, the state income taxes on top of the federal taxes would cause him to owe an amount greater than his original debt.

Now you may be thinking that yes, the total debt may be the same, but he owes it 20 years in the future, and with inflation that number means a lot less. Owed $273k 20 years from now is like owing only $151k now.

Sure, that's true. But our grad didn't simply move his debt into the future. He also paid $501 a month for that privilege, or just over $120,000 total. We didn't double check the numbers, but we're pretty sure 151 + 120 is really close to 273. Blah blah blah, inflation, blah blah, and he's actually paid more than his initial debt load. PAYE has offered no real relief at all.

So, if you want to see at what point in time the combination of the PAYE debt bomb and rapidly increasing initial debt loads will cause PAYE to offer no meaningful debt relief (just a time-delayed debt burden), look no further than the present.

But didn't we say those were the numbers for 5 years from now? Sure. But we were also looking only at the average debt load, not the most students might have. There are already 9 schools with a total cost of attendance exceeding $273,000, and if you add in the average (not even the high end) undergrad debt of $27,000, there are 36 law schools that could put you well past the PAYE doomsday point.

Egypt's Little Coup, Part Deux

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The Egyptian military couldn't just wait one more day before removing President Mohamed Morsi. No, they had to do it on July 3rd, rather than waiting until July 4th. Sure, picking that date would have been seen as obvious pandering to the Americans, but you know what Americans respond to more than anything else? Obvious pandering.

Egypt just couldn't wait though, and now $1.5 billion in aid money is on the line. By statute, foreign aid is cut off to countries "whose duly elected leader of government is deposed by decree or military coup." While many members of Congress (and just people with common sense) are demanding that the aid money stop because the military deposed Mohamed Morsi, the Obama administration has held off on calling the revolt a coup under the novel legal theory that they don't have to follow the law if they don't say the magic words. []

The law doesn't say that aid is cut off if the President declares there was a coup. That may have been the better way of drafting it, in order to allow some flexibility and recognition that global politics can be unpredictable. But, that's not what the law says. All that matters is if there actually is a coup. The Egyptian ambassador has argued there was not a military coup because the military is not ruling, but that's irrelevant for our laws -- what counts is how the duly elected leader was deposed, not who comes in after him. The military kicked Morsi out, and that is on its face a military coup.

Obama has apparently adopted the Adam Savage philosophy of government:

I reject your reality and substitute my own.


Ever heard of "the rule of law, not of men"? That's the exact position being rejected when the government says it's will supersedes the law. It's the rule of Obama, not of law. And that's the exact attitude that got Morsi in trouble in the first place. He was elected in a (relatively) free and open election, and then suspended the government and ruled as a dictator.

Obama hasn't gone quite that far, but it does seem to be the direction our nation is slowly headed in. Every two or four years there will be chants of "elections have consequences," and while that might on its face be a harmless statement, what many people mean is "we won and should get to rule by decree until the next election."

Egypt's turmoil should serve as a reminder that elections are not democracy. Democracy is what you do after the elections. You're elected to the government, not to be the government.

Anyone in DC Want a Free Law Library?

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A law firm located near Dupont Circle in Washington DC is giving away a thousand books from its library. [Click the image below for a link to the ad.]


You can get F.2d 500-999 and F. Supp. 2d 294-797 and create for yourself ...well, a very incomplete library that probably won't do you a great deal of good as a lawyer. Except, there is one use we can think of.

Are you a new lawyer in a solo practice or just partnered up with a couple other recent grads? Does your office reflect your meager capital investment? Then consider going down to this guy's office and picking up 200 or more books (200 is the minimum you can take). Then get some inexpensive bookcases and line the walls of your office with some fancy looking books.

Sure your practice doesn't really make use of them and the sets are incomplete, but do you think clients know that? Nope. Clients will just see a whole lot of law books and assume you must know a whole lot of laws, or at least do well enough for your clients to be able to afford all those books. Clients might not know what's in them, and we don't either, but we sure know they cost a lot.

[Alternatively, if you're a law school looking to boost its rank, remember that US News counts the total number of volumes in your library. Here's 1000 free books to help nudge your score up a little bit. There's definitely some schools in DC that could use the help. ...Lookin' at you, American University Washington College of Law.]

Aw, Councilman You're Just Jealous It's the Beastie Boys

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Attention New Yorkers: You've got to fight for your right to par-tay.

Or more specifically, you've got to fight for your right to party at a house with 40 or more people. City Councilman Jumaane Williams is on the war path against "house clubs." Not clubs that play house music -- clubs run out of residential homes. We're obviously not talking about Manhattan here, but Brooklyn or Queens, where someone with a yard can get a bunch of kegs and cheap liquor, sell tickets at the door, and pack their home with a couple hundred party goers. It's essentially the nightclub equivalent of a speakeasy ...except that the whole point of the speakeasy is, you know, the easy part. Keep it quiet so the cops don't come. [CBS NY]

Run down the street screaming when the party's over? That's understandably going to piss off the neighbors, get them to give their city councilman an earful, and then get him cracking down on your parties.

So what exactly is Councilman Williams planning to do?

Require registration of all house parties with at least 40 guests.

And that's got some people understandably upset. The First Amendment grants the freedom of assembly, and that Ninth Amendment penumbra thingy has given us a general right to privacy. In Williams's defense, parties are not required to seek a permit or permission, they merely have to announce to the police that a party is going to take place. But still, that notice is a bit problematic. You know that police are going to roll by your house the night of the party, and they're going to find some cause for entry. Even if no arrests are made, no tickets written, the police showing up is pretty much the end of the party. Hell, telling your guests that you've told the police about the party is enough to make most people avoid the likely hassle.

The constitutional issues aside, New Yorkers have a better reason to be ticked off at Williams -- he sucks at writing ordinances. The problem he wants to fix are residential houses operating for-profit night clubs. The proposed ordinance does nothing on its face to shut those clubs down, it just makes them register with the city. The practical effect may be to shut them down, but when it comes to legislating it's generally best to put the outcome you want within the four corners of the law. And he could have done just that. Why not simply ban private homes from operating certain types of businesses?

Oh, wait. There already are those sorts of rules. They're called "zoning" and New York is pretty serious about its zoning ordinances. It's also pretty serious about its fire codes, and we can't imagine any houses being zoned with a 200 person capacity. There's also some things like noise ordinances and drunk in public laws. Sounds like all he's got is an enforcement problem, and should take it up with the local police precinct. But if the government didn't respond to enforcement problems by passing new laws, well, we wouldn't have nearly so many law.

Fictional Lawyer July Madness

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So... yeah. We've been kinda preoccupied over here the last couple months, and the Fictional Lawyer March Madness has dragged out a bit.

Anyways, July Madness is now a thing, and we promise the poll will close at (or around) the end of the month. Your two contestants are:

Atticus Finch from To Kill a Mockingbird, #1 seed in the Serious Lawyer bracket and a perennial favorite.

Ari Gold from Entourage, the #3 seed in the Things You Can Do With a JD (other than practice law) bracket and probably the polar opposite of Mr. Finch, right down to the racial slurs.

Anyways, enjoy the voting. It'll be here all month.

50 Simple Ways to Market Your Practice -- Annotated Edition

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You can spend a lot of money on legal marketing, but you don’t need to. Nor do you have to be naturally outgoing or charming. What is necessary for good business development, say successful lawyers and consultants who shared their strategies with the ABA Journal, is a marketing plan focused on activities you do well, targeted at the right audience and carried out consistently.

We say that “lawyers and consultants” is a dubious description because it contains this thing called “consultants” who probably know jack shit about actually building a legal practice. Not that we know much more about it here, but we do know a lot about knowing jack shit, so in that capacity we’re freaking experts. So here you have it, the ABA Journal’s 50 Simple Ways You Can Market Your Practice – Annotated Edition.


1.) Some lawyers believe that if you do good work, people will automatically come to you. They are wrong. People need reminders.

“People need reminders” isn’t a way to market. And if you do good work, your clients will tell other people for you, so yeah, sometimes people will automatically come to you, or at least without you doing any additional marketing. Plus your clients will come back to you, and it’s not like you care much about the number of clients, it’s the volume of work that matters.

2.) Contact three to five potential referral sources a week—every week, regardless of how busy you are—and arrange to meet for coffee, drinks or a meal. That works much better than reaching out only when business is slow.

That’s 156 to 260 potential referral sources per year. Assuming a modest price tag of $35 per meal (if you invite them, you should pick up the check) you’re looking at upwards of $9,100 in wine-and-dine expenses. Not to mention the 260 or so hours spent contacting those people, and the 700+ hours actually meeting with them. You’ve got nine grand and a thousand hours to burn though, right?

3.) At business receptions, ask organizers whether you can be a greeter. This gives you a great reason to introduce yourself to people.

It also guarantees that you’ll never have the sort of extended conversation necessary to start a real relationship with anyone. If you’re at a business reception and need a reason to introduce yourself, how about you’re at a business reception? The entire point is to meet people.

4.) If you have a practice-related blog, write posts with information that’s truly useful to business targets. More often than not, that doesn’t include descriptions of how competent you or your firm are.

Show, Don’t Tell. A Rich Man Doesn’t Have to Say He’s Rich. Win Through Action, Never Through Argument. It’s good advice, but if you haven’t yet figured out that you convince people you’re competent by showing competence rather than saying it, you’re in trouble, because as a lawyer you’re in the business of persuasion and demonstrating that you are an abject failure at it.

5.) Your firm’s holiday card is probably one of many that clients or potential clients receive. Find another holiday (or make one up) that you enjoy and that complements your practice. Separating yourself from other, similar messages is of real value.

Nothing signals competence like an office so slow the staff have nothing to do but invent holidays.

6.) Think hard about who your target market is, and where the decision-makers are in that market.

If you believe that “think hard” is a marketing strategy, you probably also believe in The Secret. Good luck with that.

7.) When you meet a potential client, focus on his or her immediate needs. It may have nothing to do with your practice. Maybe that person’s immediate need is to find a dentist. If you know one and can connect them, there’s a better chance the person will think of you when services you offer are needed.

If when you meet someone the services you offer aren’t needed, then that person isn’t really a potential client. They’re just a person.

8.) Organize a monthly dinner group of law school classmates, varying the practice areas so attendees have greater referral opportunities.

If you vary the practice areas, aren’t you going to cut yourself out of most of the dinners?

9.) Develop a marketing plan around activities you enjoy. If you like to write, think about an electronic newsletter. If you connect better with people one on one, consider volunteer work with an activity that complements your practice.

There’s no reason that your work should be limited to ruining the 60-80 hours a week you’re in the office. Let it completely dominate all aspects of your life.

10.) Focus on good lawyers who are your contemporaries when thinking about potential referral sources. More experienced lawyers already have people to whom they refer cases.

So if you are an experienced lawyer, then you likely already have people referring cases to you. That would mean this advice is aimed at younger lawyers, telling them to seek out other younger lawyers as referral sources. That’s like the legal marketing equivalent of a sausage fest.

11.) Don’t adopt a false marketing persona. Be yourself, and figure out the best way to present yourself in a way you find appealing.

Great advice, unless of course your self sucks, and if you’re having trouble marketing yourself there’s a really good chance this is the case.

12.) You don’t need to hand a business card to everyone you meet at a reception if it feels forced and desperate. Instead, get other people’s cards, and email your contact information afterward. There’s a better chance they will remember you.

Asking for someone else’s card is inherently more desperate than giving them your card. Compare “Here, you can call me if you want, it’s entirely up to you,” with “I need people to rope into lunch three-to-five times a week, so puhleeeeze let me call you!”

13.) Providing they label it attorney advertising, personal injury lawyers may send ad letters to accident victims. And arrest reports can offer good leads for criminal defense lawyers. Family law attorneys may send advertising letters to pro se defendants in divorce cases, determining who to contact based on parties’ ZIP codes.

This used to seem creepy, but in light of all the news coming out about the NSA, clients probably won’t bat an eye at an unsolicited letter from a lawyer who somehow knows the intimate details of their life.

14.) If you hope to be hired for an appeal, read all the briefs as well as related cases, and figure out the case’s arguments. Be prepared to speak with the party about the case—without notes—for one hour.

Woah, woah, WOAH! You’re saying if I want to handle an appeal I should be familiar with the case? Can we get a second opinion here? I’m not sure about this.

15.) Posting tweets between 1 p.m. and 3 p.m. Eastern time gets the highest click rate, according to Mashable. You can schedule tweets to be posted by services like HootSuite. But be careful if you have work during those scheduled times. You don’t want a client to think you are tweeting while you’re defending a deposition.

Excellent strategy for increasing the amount of blog traffic you get from legal social media marketing guru drones, but what about clients?

16.) Criminal defense lawyers: If an attorney in a different practice area has been a great referral source and their kid gets into trouble, think about handling the case for free.

Have you considered kickbacks?

17.) People sometimes need to be convinced that their legal problem is severe enough to hire you, and it’s up to you to persuade them. That said, turning someone away when they really don’t need a lawyer is good for business, too. It’s a good way to build trust.

Turning away someone who shouldn’t be wasting their money on you is just the decent thing to do, but it isn’t a marketing strategy given that the person you turned away is likely to need a lawyer an average of around zero times. As for that person referring you to their friends? Slim chance they’ll refer the lawyer who refused to help them.

18.) Attend bar association events. Lawyers only refer cases to people they know; and if they don’t see you, they won’t think of you.

Be sure to attend the evening events when the lawyers are typically seeing double. Twice the exposure means twice the referrals.

19.) Install Google Analytics on your website. It details what search terms got people to your site and how long they stayed there. You can also use it to determine popular search terms, and put the terms that relate to your practice on your website.

Congratulations on your new iPhone 5 practice.

20.) Volunteer with various legal and community groups. Do the volunteer work to the best of your ability, even if you don’t like it.

So you’re saying that kicking the dogs at the animal shelter is a bad idea?

21.) End a conversation with someone at a networking event after you finish a statement, rather than when they finish one, so they won’t think you’re cutting them off.

If they’ve finished their statement, they won’t feel like they’re being cut off. That’s what finishing means.

22.) If you want to represent a business with a legal department, your job is to make in-house counsel’s job easier.

So quit your practice and apply for a junior in-house position.

23.) The best elevator speech? “Hi, I’m a lawyer. What do you do?”

This is nearly as bad as “Have you heard the good word?”

24.) Speak at a continuing legal education seminar only when you think it’s an interesting one that will be well-attended.

Because speaking to small groups is beneath you.

25.) Don’t buy a table at an event. Instead, buy seats at different tables so you can spread out and meet more people.

It’s even more fun to do this on airplanes.

26.) If you are out consistently, meeting with people and doing outreach, you can be successful. There may be days you don’t feel like doing it, but consistency is key.

On the other hand, if you’re staying in the office consistently, with no one but yourself and some crusty old judicial opinions, you can be successful at your freaking job.

27.) If you have a website (and you should), have a blog, too. Add new content daily, because Google algorithms give more prominence to sites with fresh, original content. The content doesn’t have to be in the form of a long, researched post. A paragraph or two, with a recent link to something interesting and relevant to your practice, will get you the same amount of traffic—if not more—than longer posts.

Quality, yeah, yeah, I hear you, but have you considered crap instead?

28.) Don’t limit networking to in-house counsel, especially at bar events. You never know who someone in private practice knows—or when they will go in-house.

But if you do realize that someone is happy at their firm and unlikely to ever go in-house, don’t waste your time talking to him. Personal connections are in themselves worthless, and only have value when they can lead to more money.

29.) Take time once a week to write LinkedIn endorsements for people you’ve worked with and respect. Don’t wait for them to ask for one; do it on your own.

The hell is LinkedIn?

30.) A reputation as a stand-up person is the best marketing tool. It takes a whole lifetime to build up that reputation and only one negative incident to destroy it.

Just look at Michael Richards.

31.) Join bar associations that welcome you, not those that are closed clubs.

Don’t join groups that won’t let you join. Gotcha.

32.) Before meeting someone you’d like to have as a client, research their business on the federal case site Pacer to get a better sense of potential legal needs. Also, read quarterly reports, check out websites and do a Google News search to see what stories have been published about the business.

If you’re getting marketing tips from the ABA Journal, what are the odds your potential clients are involved in federal cases, or anything that makes it on to Google News?

33.) Never criticize a company by name in a blog post. You never know when that company might be in a position to hire you.

Unless it’s a Fortune 500 company, because come on, they’re not hiring you.

34.) Market the work you’d like to be doing, not the work you have to do to pay the bills.

Unless of course, you do actually have to pay the bills this month.

35.) Have an office that’s convenient to reach. Being near the courthouse may not be the best place because there’s rarely free parking.

For this reason you should also not locate your office in New York City, Washington DC, or the downtown areas of Boston, Chicago, Atlanta, Philadelphia, Los Angeles or really any major market. Consider moving to rural Kansas where there is lots of free parking and clients can drive 90mph to reach your office quickly.

36.) Read your city’s business publications to get a better sense of legal needs that are not being met, as well as future areas for which people will need counsel.

Other than the Wall Street Journal and some of LA’s entertainment industry rags, does any city even have business publications?

37.) Go to events to give, rather than to get.

You can be the guy who sets up his own snack table next to the buffet. But only if you’re not busy being a greeter.

38.) If your community offers free classes, think about volunteering to teach one in an area that complements your practice.

But only if it’s interesting and well attended.

39.) Join groups that have few lawyer members.

Such as Doctors Without Borders.

40.) Handing out items with your business logo at a trade show? Make sure they’re easy to pack and meet TSA carry-on standards.

You might think your practice is da bomb, but …well, you know.

41.) If you represent consumers, think about a storefront office. People with legal needs probably are not riding up and down office building elevators, unless they already have an attorney.

TIL: People with attorneys spend most of their day riding up and down office building elevators.

42.) Ask for a guest list before you attend a business event, and identify individuals you’d like to meet.

You can also get the seating arrangement so you know where they’ll be, but this can be tricky if the person you want to meet has bought seats at multiple tables.

43.) Do adjunct professor work. It adds to your expertise, and former students can be great referral sources.

This is why “grades” are sometimes referred to as “marks.”

44.) A few good questions to ask people you meet in networking situations: What got you started in this line of work? What are you working on? How are things going with your business in this economy?

Also, Where’s the bar? Can I get you another? and How about we split this joint and go find a titty bar?

45.) Ask the staff of the association that hosts an event to introduce you to people who you think you should know at bar or trade association events.

They’re only going to be able to recommend you to other staff, because, you know, they’re the staff.

46.) If you send other lawyers potential clients, let them know. They’ll appreciate that you referred the clients, and it will help them to remember that you did so. If they don’t remember, you need to move on to lawyers who will.

Don’t worry about referring clients to the best person for them; refer them to the best person for you.

47.) Talking to reporters can be a good thing. To gain their respect, you’ve got to show them you have genuine expertise in a subject and can give pithy answers to their questions.

On the other hand, if you’re hoping to get referral work, it’s probably not a good idea to lose the respect of the entire legal community.

48.) Multiple people can go with you to a beauty contest, but only one person should do the talking. Clients hire lawyers rather than firms.

The other people sitting silently in the corner are just there to demonstrate that you do have other people at your firm, just like law students wear suits during OCI so that firms know they at least own one.

49.) Give people you meet a brief description of what you do, rather than stating your title.

So instead of “I’m a lawyer,” go with “Mostly I just dick around on meme sites while running up client billables and filling my stomach with cheap scotch.”

50.) Don’t brag about yourself because people won’t take you seriously. No one hires lawyers they don’t take seriously.

But everyone takes seriously the greeter at a business reception who hands out his business cards to everyone to let them know about his exciting new iPhone 5 law blog. “Hi, I’m a lawyer, what do you do? Great! Let’s do lunch!”

Did Kickstarter Fund a Book Filled With Rape Tips?

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Short Answer: No.

Now, none of the blogs or mainstream news outlets have bothered to offer a thoughtful analysis of the subject when reaching the opposite conclusion, but what the heck, let's be the first.

Ken "TofuTofu" Hoinsky wrote a pickup artist guide and then went to KickStarter to raise funds to get it published. He was seeking $2000 and managed to bring in $16,000 -- a lot more than your average first time published author earns -- largely by promoting the book through Reddit's pickup artist sub. Shortly before the Kickstarter window closed, a small time comedian, Casey Malone, found the project, read some of the samples of the book, decried it as a book dedicated to teaching the average frustrated chumps of the world that the way to finally score with women is to rape them:

This guy is no longer just being weird and creepy on the internet. Now he’s writing a book about how to sexually assault women, and he is using something I believe in (Kickstarter) to ask YOU for money to do it. I am offended as someone who believes in the platform, and more importantly I am offended as someone who believes women shouldn’t be treated this way, and that people who say otherwise CERTAINLY should not profit off saying they should.

This isn’t harmless. People come to these boards because they are scared of being humiliated, and they are saying to the world, “Tell me what to do, because I don’t know what to do.” And this guy has chosen to tell them, “You should be a rapist.”

One thing leads to another, and the campaign to have KickStarter revoke TofuTofu's funding goes viral. Here's a sampling from around the internet.

Slate: "sounds like a guide to sexual harassment."

Daily Beast: "That’s right, boys, consent isn’t going to help you get your hands up a woman’s skirt. “Force” is a much better bet. History has shown us that “aggressively escalated” physical contact is fast and foolproof, according to Hoinsky. It also constitutes sexual assault. But let’s not ruin the fun for all the nitwits out there who will have to learn this the hard way, when taking Hoinsky’s advice lands them in jail."

Forbes: "advice that’s less about charming and more about pushing physical boundaries with blithe disregard for physical consent."

Jezebel: "Hoinsky endorses straight-up sexual harassment and assault."

Feministing: "his advice is a play-by-play description of sexual assault."

The Frisky: "a new book that conflates advice on how to date rape women with tips on seduction." and "filled with rape tips."

You get the idea. A few bigger mainstream outlets, such as Yahoo and MSN picked up the story, but in the style of modern news, they just reported that "So and so is claiming..." Journalism is hard after all, news aggregation is easy. Why bother reading the material that's the subject of a controversy when you can just report that there's a controversy?

But what if someone actually did some work before hitting the Publish button? Let's find out. We're going to look at the laws of three states to see if the actions TofuTofu advises guys to take would qualify as either rape or sexual assault. We'll look at New York and California since they're big ol' highly populated states and NYC and LA are the pickup artist capitals, and also Connecticut, TofuTofu's home state. But first, let's see the advice that got the whole thing started:

Exhibit A:

To quote Rob Judge, “Personal space is for pussies.” I already told you that the most successful seducers are those who can’t keep their hands off of women. Well you’re not gonna be able to do that if you aren’t in close!

All the greatest seducers in history could not keep their hands off of women. They aggressively escalated physically with every woman they were flirting with. They began touching them immediately, kept great body language and eye contact, and were shameless in their physicality. Even when a girl rejects your advances, she KNOWS that you desire her. That’s hot. It arouses her physically and psychologically.

Exhibit B:

Pull out your cock and put her hand on it. Remember, she is letting you do this because you have established yourself as a LEADER. Don’t ask for permission, GRAB HER HAND, and put it right on your dick.”

Exhibit C:

Decide that you’re going to sit in a position where you can rub her leg and back. Physically pick her up and sit her on your lap. Don’t ask for permission. Be dominant. Force her to rebuff your advances.

And endless number of comments on the various websites that have written then have been along the lines of "If I meet a guy at a bar and he picks me up and sits me on his lap, I calling a bouncer" or "There's no way I'm sleeping with you if we're walking down the street and you put my hand on your dick." That's what happens when you take material out of context. Normally we roll our eyes at the "out of context" defense, because it typically isn't accompanied by the contextual explanation, but we're going to explain. These quotations come from a section of the book titled "Physical Escalation and Sex," which follows things like "flirting" and "getting her number." The advice is largely about what to do with a woman once you've got her into bed, or at least back to your place and on the couch. It's not telling you what to do with a complete stranger you just started talking to at a bar. You can decide for yourself if that is a distinction with or without a difference.

Moving on to the state laws, and starting with good ol' New York:

NY Rape 3rd:

A person is guilty of rape in the third degree when:

1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than

seventeen years old;

2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or

3. He or she engages in sexual intercourse with another person without such person`s consent where such lack of consent is by reason of some

factor other than incapacity to consent.

NY Criminal Sexual Assault 3rd:

A person is guilty of criminal sexual act in the third degree when:

1. He or she engages in oral sexual conduct or anal sexual conduct with a person who is incapable of consent by reason of some factor other

than being less than seventeen years old;

2. Being twenty-one years old or more, he or she engages in oral sexual conduct or anal sexual conduct with a person less than seventeen

years old; or

3. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person's consent where such lack of

consent is by reason of some factor other than incapacity to consent.

NY Forcible Touching:

A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor's sexual desire.

The rape and sexual assault rules apply to sexual intercourse and oral and anal sex, and the quoted material from TofuTofu doesn't go that far, so both of those are ruled out. As for forcible touching, it's not for the purpose of degrading or abusing the other person. You may argue that is the effect of the actions, but it's not the intent. But is it for the intent of the actor's sexual gratification? That could be argued either way, and it's not entirely clear what "gratification" means. It's also unclear what counts as a "legitimate purpose." If you move your partner in order to adjust or change positions, that would be forcible and for the purpose of gratifying the actor's sexual desire, but is "the angle wasn't quite working for me" a legitimate purpose? Who knows. The advice in TofuTofu's book might run afoul of this law, but only because it's so poorly written. We suspect though that you're unlikely to see a forcible touching prosecution brought for fooling around in bed with an otherwise consenting adult. Also, forcible touching is a Class A misdemeanor, considerably less serious than sexual assault and rape.

Next up, California, and we're going to trim some of the parts that aren't relevant here. California writes their statutes in a different style that makes them unwieldly to reproduce in full

CA Rape:

261. (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

(2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.

CA Sexual Battery:

243.4. (a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.

(e) (1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery [The first sexual battery subdivision comes with a penalty of at most one year, so they're both misdemeanors. No idea why they're described differently.]

Again, rape requires sexual intercourse, so that's ruled out. As for sexual battery, it's her intimate parts that need to be touched, not your own. But, let's presume that we do get to that level of touching. The statute doesn't specify just what it means for an act to be against someone's will, but as it's written it seems like if you make a move and are rebuffed, you've just committed a crime. Even if you immediately back off and respect the other person's boundaries, the law seems written broadly enough to make one false step a criminal offense. Sorry, TofuTofu, and sorry to every guy who has ever made a move towards second base and had his hand pushed away -- you're all criminals now.

Lastly here comes Connecticut, which doesn't have a crime specifically designated as rape, but instead just uses various levels of sexual assault, so we're going to pick the highest and lowest degrees:

CT Sexual Assault 1st:

Conn. Gen. Stat. § 53a-70. Sexual assault in the first degree

(a) A person is guilty of sexual assault in the first degree when such person

(1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably c auses such person to fear physical injury to such person or a third person

CT Sexual Assault 4th:

Conn. Gen. Stat. § 53a-73a. Sexual assault in the fourth degree

(a) A person is guilty of sexual assault in the fourth degree when:

(2) such person subjects another person to sexual contact without such other person's consent

Sexual Assault 1 won't apply, again we have the intercourse problem, and in addition there's the requirement of a use of force. Sexual Assault 4? On the face of the law it looks like a move that's rebuffed is enough for a criminal prosecution. However, the law as actually applied in Connecticut goes in the other direction, requiring that the victim communicate her unwillingness (where there is force, the lack of consent is presumed).


So what's the verdict? ...That the people calling this a sexual assault guide are both reading and thinking impaired. Only a tiny portion of the text is even at issue, so it's hardly full of advice on how to rape someone as many critics have claimed. It also requires an insanely wide definition of sexual assault for the advice to be problematic.

"Don't ask for permission" might sound creepy and a little bit rapey, but intelligent people are capable of moving past their gut reactions. The alternative is "Ask for permission" and hey that sounds okay, maybe even ideal, but that's not really the end of it. This is about physical escalation, rounding the bases if you will, so the actual alternative is "Ask for permission before each and every move." That's getting a bit absurd. You got permission to touch her butt with your right hand, okay to presume the left hand is also good? No way! That's "don't ask for permission" territory there! And you'd better get your permission in triplicate before you squeeze. And just to be perfectly clear, the rule TofuTofu's critics are advocating for is "Ask for and receive permission before each and every move," with non-verbal cues off limits. A single miscommunication results in a criminal prosecution.

"Force her to rebuff your advances" is the other phrase really getting people riled up, because it has the word "force" in it. You used force? That's rape! Well, no. If it was "Force her to have sex with you" it would be rape. This is just saying not to sit in escalation limbo waiting for an invitation to move to the next base to arrive on a silver platter. Want to know if you can take third? Rather than waiting for her to tell you (and most people are very hesitant about vocalizing their desires), just go for it and if she's not in to it she'll let you know.

And what do you do if she says stop or pushes your hand away? TofuTofu has some specific advice on that: "stop escalating immediately."

Yeah, that sounds exactly like "a play-by-play description of sexual assault."

Chicago Law Prof Boldly Makes the Case for One Year Law School

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In an op/ed on Bloomberg, Chicago Law professor Martha Nussbaum has made the bold assertion that law school needs to only be one year long:

When William Rainey Harper, president of the University of Chicago, proposed to add a law school to the new university in 1902, he entrusted the project to Ernst Freund, a political-science professor, former practicing lawyer and well-known expert on police power and the free-speech rights of dissidents.

Freund argued that law students shouldn’t simply learn practical strategies (as in the old days when law was taught by apprenticeship) and the technical rules known as “black letter law.” Rather, they should have an education that also included economics, sociology, political theory and philosophy.

When Harper asked whether this curriculum wasn’t better suited to a “research department of jurisprudence” rather than to the worldly practitioner, Freund said absolutely not. Practitioners will go out into a society where all is not well, and they had better be equipped to think broadly, critically and independently about it. Otherwise, they would simply be tools in the hands of powerful interests, Freund said.

His vision of legal education gradually won out. Once Chicago was an outlier; now it is just one example of the dominant idea of legal education. Today, in addition to basic law subjects and a variety of practice-oriented courses, law students learn to see society through the lens of the social sciences and the humanities, primarily in elective courses taken during the second and third years.

This appears on the surface to be making the case for a three year program, with second and third years filled up with a grab bag of humanities and social sciences classes. However, this argument leads to the logical conclusion that all that is needed is the first year. You see, most law students have already spent four years studying the humanities. They already possess that lens through which to view society and the law. Thus, we should conclude that Nussbaum is arguing that the 2L and 3L years be waived for students possessing an undergraduate degree in the humanities.

We must reach this conclusion because the alternative is that Nussbaum thinks this necessary humanities education can come only from law professors, most of whom lack the education and publication history necessary to be a humanities professor. This is of course absurd, and applying a little reductio, we conclude that Nussbaum thinks the undergraduate humanities education suffices.


Of course that's wishful thinking. Nussbaum is perfectly fine with wasting law students' time and money no matter how absurdly it is done:

A perusal of examples will begin to show what such courses can offer the future practitioner. A student at Chicago (similar to other law schools) might take a class with a leading criminologist, studying philosophical theories of punishment and the history of prisons -- and then visit the maximum-security prison at Joliet, Illinois, the only surviving North American exemplar of Jeremy Bentham’s famous “panopticon” (where everyone is watched all the time). A future lawyer would gain an invaluable set of tools, philosophical and historical, for thinking independently and critically about a broken system of imprisonment.

It is of course important for lawyers of all stripes to understand the basic theories of criminal punishment -- deterrence, retribution, rehabilitation, isolating dangerous individuals. That's maybe a week out of 1L criminal law. But the field trip to Joilet to see a piece of prison design that is used no where in the nation, and possibly no where in the world? That's truly absurd. What's next from Nussbaum? Is she going to tell us how for just $50,000 a year, students at Chicago have the opportunity to engage in critically mind expanding conferences discussing the intersection of progressive gender politics with legal systems in force in exactly zero nations?

Eric Posner Gives Zero Fucks

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The government says quite reasonably that if we had a public debate about these techniques then the techniques would be rendered either ineffective or less effective. That's what makes it so hard. So in the end the public, in my view really, has choice but to give a lot of trust to the secret court and the members of congress who are paying attention and the executive branch. [NPR]

That’s Chicago Law professor Eric Posner discussing the recently leaked intelligence gathering techniques used by the NSA on NPR’s All Things Considered. Too bad Posner didn’t consider all the things, more like he just considered one of the things. If the government says they need it, then they need it, and if they need to not tell us what it is, then that’s okay too.

Posner makes the same argument in a bit more depth in a debate hosted by the New York Times. Just in case it seemed like a slip up or an out of context quotation, nope. In his words, "I don't see a problem here." Your average AP US History student can at least identify the problem.

There is of course a balance to be struck between the government’s need to keep certain operations secret in order to make them effective and the public’s right to a democratic government. Details of troop deployments, the precise algorithms used to flag airline passengers, what information certain captured terrorists have disclosed – all those things make sense to keep secret. But the fact that troops are being deployed at all? That airline passengers are being flagged for extra scrutiny? That we’re capturing and interrogating terrorists? Those are all the types of things necessary for the citizenry to know, and letting them know does not compromise the government’s mission one iota.

The government can keep secret the exact leads its gotten from gathering telephony metadata, but the fact that it’s collecting the phone records of every single person is the type of thing that needs to be disclosed to the public and subject to open debate.

And just to show how wrong Posner is on this, disclosing surveillance techniques typically increases their efficacy, not decreases it. Announcing DUI checkpoints decreases the number of drunk people on the road. It allows some people to get drunk and just take a detour around the checkpoint, but on the whole the mere knowledge that checkpoints are out there causes plenty of people to either stay home or just not drink as much. Same goes for cameras to catch people speeding or running red lights, bag checks at baseball games to prevent people from bringing in their own booze, and those “Protect by Brinks Home Security” window stickers to discourage burglaries.

Someone who is really determined will still find away around these techniques. They’ll take detours, put their flask in cargo pants pockets, or just break into another house. But people who are less committed? They’ll slow their car down, shell out the extra money for stadium beer, and stick to slinging crystal instead of moving up to B&E.

So what about announcing these techniques to terrorists? Surely those people are more committed to their job than the average National’s fan who just doesn’t want to pay for the most expensive stadium beer in the country. If we announce our techniques, won’t they just find a way around them?

Not if the technique is monitoring every phone call and e-mail conversation. Getting around a DUI checkpoint is easy. Communicating with your international terror network without using an electronic medium doesn’t have such an easy workaround. Bin Laden’s courier could only run so far. Letting terrorists know about the NSA’s data collection is more likely to prevent acts of terrorism than keeping it secret.

Except for one little hitch. The NSA’s data collection will be less effective not because would-be terrorists will find a work around, but because the American citizenry might fight back against it.

“If we told you, terrorists could easily avoid our surveillance” is a fair argument.

“If we told you, you wouldn’t let us do it any more” is not. And we don’t just need to trust the government on this. The Constitution is based on the premise that our government can’t be trusted. That’s why we have a democracy, why we have frequent elections, why the power of the federal government is limited, and why we have a Bill of Rights just to double down on our view that even a limited federal government still can’t be trusted.

Well, at least Posner doesn’t teach criminal procedure, or constitutional law, or privacy law, or the law of being a decent human being. He just teaches contracts.

…Which would be okay, except that earlier in his NPR segment, when talking about data collection by private companies such as Google and Facebook, he admits to not reading the terms and conditions. Not for the same lazy reason the rest of us have for skipping over them, but because he’s incapable of reading and understanding them:

You can’t read those things because they’re too long and complicated, and I teach contract law.

Jesus NSA Christ! You teach contract law at a top five law school and you are incapable of understanding the most ubiquitous contract in the world. The hell qualifies you to teach contract law then? That you understand promissory estoppels? Big fucking deal. Many of your students are going to go on to not only read but to write contracts that are far longer, more complicated, and involve not only complex legal issues but also issues unique to the client’s industry, so what makes you qualified to train them?

Worse than the fact that Posner can’t read an extremely common contract, and that he thinks a benevolent (fingers crossed) dictatorship is a perfectly fine form of government, is that he seems to have just given up. Law is complex? Fuck it, won’t read it. Government wants to encroach on my rights? Fuck it, let them.

Students Posner teaches will likely go on to be leaders in firms, professors, judges, and probably some politicians and high ranking government officers. Perhaps, just perhaps, Posner should get out of the way and let these people get their education from someone who still gives a damn.


PS: If you happen to be Eric Posner, here's some videos for you to watch while you're busy counting down the minutes until retirement:

California Man Cross over Crosswalk

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We here at Con Daily love a good story about a citizen activist stepping in to correct a problem of government bureaucratic incompetence, especially when that do-gooder is punished for his good-doing. Not that we like government incompetence or punishing the good guys -- it just makes for a good story.

Meet Anthony Cardenas, a Vallejo, CA man who was fed up with a dangerous intersection at Sonoma Blvd and Illinois St:

I tried helping my community out. I got tired of seeing people get run over here all the time.

People run over! All. The. Time!

So Cardenas got out a bucket of paint and put his own crosswalk on the intersection. Then the city scraped the crosswalk off, and Cardenas was arrested and charged with vandalism. [CBS]

Why did the city respond that way? Perhaps taking a look at the intersection might help:


There already is a crosswalk there! Sure you have to cross Illinois St. to get to it, and then cross back over if that's not the side you want to be on, but there hardly seems any pressing need to add another crosswalk there.

And as for those people who get run over all the time? The city had no record of a pedestrian being struck at that intersection.

Would it make sense to add another crosswalk? Maybe, but traffic planning is a pretty complicated subject. There may well be a good reason why the crosswalk is only on one side -- there doesn't appear to be any difference in the street layout on either side, but we're not experts on this. We do know however that crosswalks don't protect people. The paint doesn't make it suddenly safe to cross the street there. The crosswalk is an indication to the pedestrian of where it is safe to cross, so painting a new crosswalk potentially adds danger, telling people to cross at a location where it isn't safe to do so.

As much as we love a story of the little guy fighting the big stupid government we just don't have that story.

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