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

http://www.constitutionaldaily.com/index.php?option=com_content&view=article&id=1573:legal-reasoning-redux-5&catid=38:there-and-never-back-again&Itemid=65

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Constitutional Daily

New AP Style Guidelines

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The Associated Press announced in its blog that it will be ditching the terms "illegal immigrant" and "illegal alien" and instead use the term "person living in or entering a country illegally or without legal permission."

We suspect someone over there is getting paid per word, but the reason AP gives is that:

[W]e had in other areas been ridding the Stylebook of labels. The new section on mental health issues argues for using credibly sourced diagnoses instead of labels. Saying someone was “diagnosed with schizophrenia” instead of schizophrenic, for example.

And that discussion about labeling people, instead of behavior, led us back to “illegal immigrant” again.

In keeping with this trend of labeling actions rather than people, here are some new terms we expect all proper-minded progressives to follow, er... sorry. People who think in the proper, progressive fashion.

"Criminal" is now "a person who has committed or been convicted of a criminal offense."

"Lawyer" is now "a person who is licensed or engages in the practice of law."

"Reporter" is now "a person who reports."

"Professional athlete" is now "a person who engages in athletic activities for profit."

"Same sex couple" is now "two people of the same sex who have entered into a mutual relationship."

"Software pirate" is now "a person who engages in the exchange of software or other electronic media illegally or without legal permission."

And of course, "blowhard" is now "a person who blows hard."

Georgia town arms every home to stop crime

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Nelson, GA, population 1314, and soon to be home to more guns. Maybe.

The city council has recently enacted an anti-crime ordinance, requiring every household to own a firearm. [Reuters] The town has only one police officer, and has been plagued by petty thefts, so the city counsel decided to essentially deputize every household, but of course without any of the training and oversight that would come from actually deputizing them.

Anyone who understands anything about rights of course will recognize the problem. Almost all of our rights come with a corresponding right to not exercise that right. Freedom of speech comes with the right to no speak at all. The right to counsel includes the right to represent yourself. And the right to keep and bear arms comes with the right to not own a weapon if you don't want to. That's why it's called the right to keep and bear arms, and not the universal mandate to keep and bear arms.

The town thinks it has a workaround to the pesky little 2nd Amendment issue though. Included in the ordinance are several exemptions. Felons are not required to own a weapon, nor are people with physical or mental handicaps. There's also an exemption for people who object to owning a firearm. Bingo-bango, solves the problem. And on top of the conscientious objector exemption, there's also no penalty for disobeying the ordinance, so the entire thing is symbolic.

And as far as symbolic gestures go, this one stinks. The town, in its toothless symbolic ordinance is saying: We don't think you should have 2nd Amendment rights.

If they wanted to promote gun ownership for crime reduction, they should have their one police officer spend some time helping people with gun safety, marksmanship, and getting their license. Or just have a symbolic 2nd Amendment Appreciation Day. The last thing you do is pass an ordinance saying you oppose the choice to not own a gun.

 

Just to pile on though, the idea is going to be completely counterproductive. The town's problem is a lack of law enforcement, and too many thefts. So they're going to put guns in all the homes. Of course most thefts occur during daytime hours when no one is at home. So no one is there to use the gun to stop the thief. So the thief still breaks in and steals your stuff, and now he steals your gun too.

Not only are guns great merchandize for selling on the black market, so there's an increased incentive to break into a home in Nelson, GA, but all the thieves are going to be armed as well.

Let this be a lesson to small town councils: The next time you have an idea, don't.

Not Quite Jamaica, Rhode Island Decriminalizes Marijuana

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Recreational marijuana smokers in Rhode Island can now enjoy that habit without fear of criminal penalties. The new RI law goes into effect today, changing the penalty for being an adult caught with small amounts marijuana from possible jail time and/or $500 fine to a $150 fine.

With Colorado and Washington leading the way last November, many states are having similar discussions in their legislatures. Rhode Island neighbor, Maryland, currently has a bill in the House for decriminalizing marijuana. The measure already passed in the Senate. Maine introduced a bill for legalization with 35 cosponsors last week.

If you like interactive maps as much as we do, check out this one on norml.org, a site working to reform marijuana laws. You can click tags by state to see what states have decriminalized, legalized, and allowed medical marijuana use.

On the one hand, it’s great that we’re making progress on getting rid of stupid pot laws. Lighter punishments and a lack of a criminal record is a nice step in the right direction (especially come C&F time). But on the other hand, decriminalization isn’t quite what it sounds like. Under the new Rhode Island law, your third offense within 18 months is a misdemeanor. The prosecution will get to prove one element of the crime, the two prior possessions, with a diminished burden of proof because those earlier offenses were civil matters without a reasonable doubt standard. To pile on, in civil matters you also don’t have the right to counsel.

We already hear Scott Greenfield asking “but what about the clients?” but come on, fewer criminal marijuana cases means a lot less work for lawyers. Especially young lawyers who need these minor offenses to learn the ropes, and who rely on court appointments while building a network and reputation.

Sure decriminalization reduces the workload for law enforcement and prosecutors, freeing them up to go after serious offenses. And it will reduce overcrowding in jails which is another cost savings to the state, not to mention the savings to the people who don’t have to go to jail. But won’t someone think of the lawyers? This is just kicking the legal employment scene when it’s already down.

In Ohio, North Carolina, Minnesota, and Oregon, possession is still a misdemeanor, but there’s no risk of incarceration, just a fine (ranging from $150 if you’re lucky and in Ohio, or $1000, if you’re not lucky and you’re in Oregon). Of course, for your second offense, incarceration and the need to hire an attorney come back on the table.

California, Mississippi, and Nebraska will let you go with a non-criminal infraction the first time, but it’s a jail-able misdemeanor the second. In Nevada and New York, you get until your third offense before you’re looking at jail time.

If this trend keeps up soon we’re going to see full legalization of marijuana and thousands of attorneys who are out of work and thus unable to afford their own marijuana.

We need to reverse this dangerous trend and go in a new direction: legalization of marijuana for middle-class white people. Keep it criminalized for poor minorities, to provide for a bulk of cases, and also criminalized for 16-25 year old white kids from upper-class families who will pay a lot to keep the charges off their records, to provide for quality cases. That keeps money flowing into the legal market, while protecting the lawyers themselves from prosecution.

UPS to stop delivering drugs, FedEx takes a stand

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Bad news for people who buy prescription painkillers online (without a valid prescription) from bogus pharmacies. Also, good news for the same people. We'll start with the bad.

UPS has agreed to pay the government a fine of $40 million for its role in delivering controlled substances purchased online. The settlement also means that UPS will begin putting measures in place to make sure that you can't get your drugs delivered by them, so don't expect the big brown trucks to keep delivering your little yellow pills. And if you have been getting drugs delivered with UPS, be worried that they'll turn your address over to the DEA.

The good news though is that FedEx is taking the opposite position, not cooperating with the feds, and preparing to defend against whatever criminal action the government brings. FedEx's spokesman said about potential charges, "It is unclear what federal laws UPS may have violated." [WSJ]

We have to agree. The Controlled Substances Act makes it illegal to distribute a controlled substance except under certain exceptions (the normal method for getting a prescription and going to a pharmacy). However, these are specific intent crimes. FedEx would need to know more than the fact that it's services are being used to commit crimes. It would need to know what specific transactions are illegal. It's going to be hard to prosecute when everything is automated and FedEx just delivers a package no questions asked.

They can't be hit with a conspiracy charge either. Anyone who's taken the bar exam should know that the sale of ordinary goods, in an ordinary manner, for an ordinary price does not create a conspiracy, even if the other guy tells you that he's going to commit a crime. Mobster comes in to your hardware store and says "I need a shovel to bury some stoolies I'm about to whack," you can sell him the shovel and there's no problem. BarBri didn't cover the provision of ordinary services, but it's safe to assume the same rule applies.

FedEx taking a stand against whatever the feds throw at them raises one serious question though, ...why did UPS fold so quickly? If the cases were progressing in the same way, and FedEx really doesn't even know what crimes they might be charged with, what was UPS doing? You don't plead guilty before the prosecution even tells you what you're charged with. Sounds like someone's legal counsel was a little bit paranoid. We can't think of anything that causes paranoia.

NYU finally posts some jobs data, let's take a look

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Some of you may remember that a year ago Paul Campos and NYU got into a pissing match over the number of graduates NYU was sending to BigLaw positions. Here's a bit from NYU's response:

Focusing on 2010 data, Campos notes (accurately) that NYU reported 296 of our 2010 graduates going to work for law firms, with 91% going to firms with more than 250 attorneys. He then estimates that NYU Law would have placed 273 of these graduates at NLJ 250 firms. “In fact, the school placed 209,” he writes. In fact? The source of Campos’s certitude is a chart the NLJ publishes each year that purports to show how many first-year associates each law school sends to the NLJ 250. To gather its data, the NLJ contacts each of the NLJ 250 law firms. But not all release this information. NLJ editor-in-chief David Brown told NYU Law that in this year's survey, the results of which he just published, 71 of these 250 firms provided no school-specific 2011 hiring data. And, if a firm didn’t participate and a law school declined to say how many graduates it sent to that firm, the NLJ simply recorded that as a zero. “If we didn’t have information from the law firm or the law school, we didn’t publish information we didn’t have,” Brown said. Presto: a sizeable group of entry-level lawyers vanish into the ether.

NYU then invited Campos to come inspect their books, knowing damned well that Colorado isn't one of New Yorks boroughs. Law School Transparency asked NYU to publish their NALP report, which was met with a response to go fuck themselves.

Something in the internal workings at NYU has changed, because the school recently did decide to publish their NALP report, though it's for the class of 2011, not 2010, so it doesn't speak at all to the dispute between NYU and Campos. (And wouldn't really have done so anyways, because the law firm size categories NALP uses are not the same as the NLJ 250 division.)

Now that we do have NALP data though, let's take a look at it.

If NYU was being honest that in 2010, 91% of students (in private practice) were at NLJ 250 firms, then 2011 was one helluva bad year. Only 70% found jobs in firms of 501+ attorneys. Another 10.8% landed in 250-500 attorney firms. That's only 80.8% in big firms, a drop of 10 percentage points. ...Okay, it's not quite that simple. NLJ250 firms dip down into the mid-100s in size, but that won't affect NYU's numbers too much. 2.9% of students in private practice were in 101-250 attorney firms; some of them NLJ250, but perhaps some of them not.

Amazingly, of the 201 grads at firms with at least 101 attorneys, NYU managed to track down 200 salaries. Either NYU's CSO has a tight relationship with their students, or they're engaging in the relatively widespread practice of filling in information that students don't provide. You can figure out on your own the problems with that.

...Or if you can't: Not all of the NLJ250 pay the "market" rate of $160,000, and not all firms paying $160,000 pay that rate at all of their offices. For instance, Warner Norcross & Judd based in Grand Rapids, MI, the 185th largest firm pays $100,000. #168, Roseland, NJ's Lowenstein Sandler pays $140,000. Davis, Wright, Tremaine pays $140,000 in LA, $145,000 in San Francisco, $120,000 in Seattle, and $110,000 in Portland. Morgan, Lewis, & Bockius, the 14th largest US firm, pays $145,000 in Philadelphia,

K&L Gates, the 8th largest firm, pays $160,000 in LA and Boston, but $105,000 in Harrisburg, PA.

It's not hard to imagine someone in the career services office seeing K&L Gates listed as the firm, the salary field left blank, and filling in $160,000 without investigating further.

 

One other thing stands out on NYU's NALP report, and that is the number of graduates listed as earning $24,000. That figure was listed as the 25th percentile for all public sector jobs, the 50th percentile for government work (a subset of public sector), the 25th percentile for business jobs, the 75th percentile for business jobs requiring bar passage, and the 25th percentile at law firms of 2-10 attorneys.

Given the exact sameness of these salaries, and that NYU provides funding for 12% of its grads jobs, it's safe to say that $24k is the going rate for NYU funding. Most of these jobs are public interest and government, which means that the students should also be receiving loan repayment assistance. And NYU's LRAP is known for being extremely generous. ...Except that you don't get it just for working one year. You have to work in a qualified public interest position for 10 years. If the funding for your current position is coming from NYU, you may find it hard to stay in the program, especially since unpaid positions don't count.

And in addition to people falling out of LRAP eligible jobs, there are at least 4 people in business and 2 in private practice who are probably getting their $24k and no help with their loans.

Laser Crimes: They'll tack on another 2 years if you say "pew pew pew!"

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Earlier this week a 19 year old was sentenced to 2.5 years in federal prison for pointing a laser at a plane. Apparently he was having a slow day last October and thought pointing a laser at aircraft passing overhead seemed like a good way to spend his afternoon. He intentionally aimed the laser at privately owned jet, hit said aircraft, and the laser struck the pilot in the eye “multiple times.” This laser-to-the-eye incident caused the pilot vision impairment for hours. Because enough is never enough, the young laser enthusiast pointed a laser at a police helicopter later that night.

Putting aside the idiocy and irreverence of pointing lasers at planes, our first reaction to this was, “Isn’t there some better way to solve the ‘laser in a pilot’s eye’ problem than sending idiot laser pointers to federal prison? Maybe something like wearing protective eye gear, like half the police pilot was?”

Turns out, the whole “laser in the pilot’s eye” issue is kind of a big deal. Most of us are used to laser usage at close range, giving a tedious presentation, or livening up someone else’s presentation, or annoying a cat. But at large range, such as between the ground and an aircraft, the beam doesn’t remain a small dot. Instead it expands into a beam big enough to illuminate a cockpit. So much for [Trigger Warning: Bad pun ahead] laser focus.

Feel free to check out this little video from the FBI demonstrating laser pointer pilot blindness. Still not convinced it’s an issue? Imagine yourself as a passenger on that plane. You really want your pilot to be temporarily blinded while you’re on your way to that long overdue vacation? Sure, the plane can pretty much fly itself, but your pilot will get grumpy, and he might take that out on the passengers.

Besides that, it’s not like the federal government cares about what you think should be a federal crime. Just ask Colorado and Washington how the DOJ feels about them legalizing marijuana. (Actually, can someone check on that? It keeps changing every few months, and laser pointer threats aside, some of us are making summer travel plans.)

So what’s the federal crime with lasers? Interfering with the operation of an aircraft and/or interfering with a flight crew.

Of course, if you go look at that FBI video, you may also notice a few lines below it, the sentence, “to date, no aircraft have been lost as a result of laser incidents.” Doesn’t necessarily mean laser incidents aren’t dangerous, just that they haven’t …caused any danger yet.

If you look a few lines below that, you’ll also see where Federal Air Marshal Tim Childs does some laser user profiling, and tell us that “consistently” people who do this are either “minors with no criminal history or older men with criminal records. The teens are usually curious or fall victim to peer pressure.” In other words: “These aren’t bad kids, they’re just normal kids who happen to have a laser pointer. So let’s throw the book at them and ruin their futures because mommy and daddy bought them a stupid laser instead of an Xbox.”

That’s your government at work, folks. Pursuing kids with laser pointers, while making absolutely no arrests against the more dangerous sharks with lasers attached to their heads.

16 New Rural Lawyers, Access to Justice Problem Solved

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Last September we told you about South Dakota’s Project Rural Practice, which wanted to provide incentives to attorneys for practicing in rural areas. And South Dakota is now proud to announce that initiative has been signed into law.

South Dakota Chief Justice David Gilbertson applauds the bill and informs us that this bill makes South Dakota the first state in the nation to have legislation drafted specifically to assist recruit attorneys into rural parts of the state. South Dakota: Pioneers since the Oregon Trail (that’s actually not true. South Dakota has been so historically lame your baby sister couldn’t even die of dysentery as your oxen drowned while you were fording the river).

South Dakota has been a pioneer in reactionary legislation, though. About two weeks ago they became the first state in the nation to enact a law explicitly authorizing school employees to carry guns on the job. So maybe that will create some work for the new rural South Dakota lawyer.

Before you pack your bags and head out West (or North if you're in big hat country, or East if you're in grunge music country), let’s talk program specifics. You can read the full text of the bill here, but we’ll go ahead and hit the highlights for you.

This program will only be available to counties with a population of less than 10,000, of which (according to Wikipedia), South Dakota has 49. Interested counties will have to apply for the program to the Unified Judicial System of South Dakota, which will consider the county’s ability to support and sustain an attorney, including, among other things: the demographics of the county, age and number of the county bar, economic development in the county, proximity to other counties receiving assistance, and evaluation of the attorney seeking assistance. The county will also have to agree to pay 35% of the incentive payment.

The incentive payment is 5 equal annual installments, equivalent to 90% of the University of South Dakota’s School of Law resident tuition and fees, as determined on July 1 of this year. Current School of Law annual resident tuition and fees are $13,288, likely to increase before the next academic year, as tuition typically does. Increase aside, 90% of that is $11,959.20.

What do you have to do to get this not quite 12k a year, aside from being licensed in South Dakota and practicing law in a county of less than 10,000 people in South Dakota? You have to agree to practice law in that rural county for at least five years. You can also probably expect to hear something like, “Oh, so you can commit to Moody County for five years but not to me?!” from your significant other.

Other things to take note of? The law doesn’t allow more than 16 attorneys to participate in the program, and no new attorneys may be added after July 1, 2017. So you better apply soon.

If you’re worried about the fund running out of money to pay you, be one of the first to apply. The bill set aside $475,000 from the general fund for this program. Of the $11,959.20 the fund should pay you annually, the county you’ll call home is responsible for 35% ($4,185.72). The Unified Judicial System is authorized to receive another 15% ($1,793.88) from the State Bar. That leaves $5,988.60 to be paid by the Judicial System, assuming they take the Bar’s money, which they likely will. Multiply that by 5 and you get $29,943. That leaves enough money for to pay for 15.8 attorneys, based on current tuition. And don’t think that if you’re unlucky .8 person you can just quit a year early. If you breach your agreement under the program, you have to pay all the incentive money back, or risk disciplinary action from the State Bar.

But maybe we're being short sighted. Perhaps the budget does balance. All that's required is for USD's tuition to drop a little bit, in turn decreasing the support provided to each grad. It only needs to decrease 1.27%. So let's just see USD's historic tuition rates ...It's $12,340 this year, was $11,208 last year, and $7,498 back in 2004. So, tuition has gone up 10.1% since last year, and 65.6% over 8 years, so tuition is likely to be somewhere in the range of $17,000 in 2017 and $26,000 by the time the 5 years are up for the last entries into the program. Ugh...

As well intentioned as South Dakota's program is, one attorney for every 3 rural counties is hardly going to provide some great new access for the underserved, and there's probably going to be a budget shortfall later on. It's a classic case of too little, too little.

At least we haven't heard on strict requirements on what it means to practice law. $12,000 a year to turn away clients in the Badlands doesn't sound like the worse thing in the world.

Richard Epstein Said What About Regulating Law Schools

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NYU (go violets!) law professor Richard Epstein (go mono!) did an AMA on Reddit earlier today, and the top question asked of him was this:

Professor, thank you for taking some of your time to do this. I am an admirer of yours and am very interested to see how this goes. I am curious to hear your thoughts on current law school enrollment rates and costs given the state of the legal job market for new law school graduates. Do you think law schools owe a duty to their applicants to stop greedily taking in every eager mind that applies despite the economic prospects of that decision? What would you tell someone considering applying to law school right now if their reasoning was that it would be a solid career move?

And here is Epstein's response:

I am less paternalistic than you, and think that the innocents, so-called, have already scaled back their applications. But the market is tricky. It is stable at the top and if ever get a president with pro growth policies, business would expand. At the bottom, it is not a viable proposition with the current market format. It needs to be commoditized for it to work at a lower cost base. That requires corporate involvement which can then determine the mix of legal and para legal talents. But there is no cause for regulation. Information will travel quickly enough, as your question indicates.

First, wow, what a non-answer. Or at least, no an answer to the question asked. The questioner asked if law schools owe a duty to their students to behave with a bit of fiscal restraint, and additionally, what advice would he give to a prospective student applying to law school because of (perceived) career stability.

Professor Epstein answered that "it" needs to be commoditized, though it's not clear whether he means legal education or the delivery of legal services, and that corporations need to determine do something(?) to fix the ratio of lawyers to paralawyers.

And then he says two ridiculous things:

(1) There is no cause for regulation.

(2) Information will travel quickly enough.

No cause for regulation? How about all those law schools that publish fraudulent or at least willfully misleading employment data? There's no need to regulate them to prevent this sort of fraud? What about forging their LSAT/GPA data to make the school look like it's attracting better students? Is that a behavior the market self corrects in the absence of regulatory oversight? And how about requiring schools to give important information about scholarship retention rates, which the ABA recently required?

The response may be that regulations are useless because the ABA refuses to enforce them, but that doesn't mean that there isn't need to regulate the legal education industry. Besides, it's regulated like hell in ABA standards. What most people are asking for now in terms of increased regulation is to just require schools to not lie to prospective students quite so much. Or maybe Richard Epstein doesn't mind if his hamburgers are actually made from pink slime and horse meat, because the information will travel quickly enough.

Actually, no, it won't. Law schools hold all the information and while Law School Transparency has increased the amount of information out there through a mix of working with and shaming schools, the greatest tool for getting the info out there so it can spread is regulations requiring schools to publish the information.

In May of last year, LST asked NYU to improve its data disclosures. Here's what dean Ricky Revesz had to say in response:

I expect you are aware that, since the end of last year, we have added a substantial amount of employment data to the NYU Law website. If there is more information that would be suitable and helpful for us to provide, we are happy to consider doing that. For example, we are now looking into posting data of the type found in Table 12 of the NALP form (Source of Job by Employer Type), since that would likely be of interest to prospective and current students. Please let me know if there is additional information that you think would be helpful for us to publish.

Guess what data NYU still doesn't provide? The very table Ricky said they were "looking into" posting nearly a year ago. That, and all this other stuff:

  • Full-time and part-time employment by required/preferred credentials (“FT/PT Jobs”)
  • Classification of business jobs (“Business Jobs”)
  • Position held in a law firm (“Type of Law Firm Job”)
  • When the job was obtained (“Timing of Job Offer”)
  • Salaries by job type (“Employment Status Known” and “Employment Categories”)
  • Salaries by location (“Jobs Taken by Region” and “Location of Jobs”)
  • Salaries by firm size (“Size of Firm”)

NYU also fails to publish its ABA Employment chart, and its scholarship retention data, despite this being mandated by the ABA. Further, the salary data is publishes is in violation of ABA standards.

Do they know that "tool" and "box" are both derogatory?

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As promised about two months ago, the ABA has finally provided us with a toolbox- I mean, toolkit (box is too vaguely sexual)- to shatter the glass ceiling. It includes a glass cutter, hammer, and a tile saw, just to give every tool equal opportunity. It does not include protective eye or headgear because if you’re dumb enough to think the contents of the toolkit will generate equal pay, then you probably deserve a shard of glass to the eye (on the plus side, your skull is thick enough to protect you from most serious head trauma).

It may seem like I harp on this issue a lot. And I promise I’ll stop just as soon as the ABA stops being so stupid about it. And so begins today’s installment of Constitutional Daily’s Explanation of How the ABA Has Gotten Yet Another Women’s Issue Wrong. Brought to you by Constitutional Daily’s Token Woman.

Let’s start with what this mysterious toolkit actually includes. The ABA’s Gender Equity Task Force’s Toolkit for Gender Equity in Partner Compensation comes complete with the following:

Program agenda: just over 3 pages; apparently the Task Force is very into double spacing and bullets.

PowerPoint program: 14 slides, including 1 each for introduction, questions, and conclusion. Also includes several handy “insert bar logo here” boxes, so you can add a personal touch to your moronic presentation.

List of program materials: A half page document that includes links to 6 pdfs recommended as “background information for speakers” or handouts at the program.

Marketing information: a 2 page Word document that describes the program and lists “suggestions for attracting decision-makers,” as well as suggested dates, since you’re probably not capable of independently accessing a calendar if you’re actually going to use this thing.

And finally, a four page bibliography: described as an “extensive list of articles that can be referenced for more in-depth understanding of the issues.” It’s suggested that this be distributed to speakers (prior to the program) and to the audience at the program.

You may have noticed how often the word “program” appears in that list. Apparently, the whole “plan” of the Tool Kit is to have a presentation with a guest speaker and a panel discussion, and of course, handouts and PowerPoints.  It reminds us of the old Power Point slogan: PowerPoint -- Required for motivational speakers and inspiring accompanying handouts since 1990.

You may have also noticed how many “suggestions” the Task Force included in its Tool Kit materials. Kind of suggests even they think people dumb enough to use the Tool Kit will be too dumb to know how.

To its credit, the Tool Kit is slightly better than the ABA’s other suggestion of women networking with other women to fix the gender pay gap. But that’s largely because the Tool Kit doesn’t include a suggestion to present the program only to other women. In a bold step forward though, the ABA does suggest getting decision-makers to attend your program. This really is ground breaking, because prior ABA advice was to only try to influence the least influential people.

If you read over the material (although I have no earthly idea why you would, unless you’re trying to induce vomiting via eye-rolling-induced vertigo), you’ll probably notice that the ABA proffers no real solution to the gender wage gap problem. The program and all of its materials are essentially just a re-hashing of everything the ABA has already said about the issue.

One the one hand, I don’t know if I blame them too much for that. If you want to fix an issue, you have to identify it, explain why it’s a problem, and present that information to someone capable of addressing it.  You also have to convince that person that it is a real problem and that it’s a problem they want to spend energy, time, and money fixing. Uncharacteristically, I’m willing to give the ABA the benefit of the doubt here and say maybe that’s what they were trying to do.

On the other hand, the Tool Kit is still almost entirely useless, as most large firms have lockstep pay, at least for associates. Maybe you get a bigger bonus for having people in the right places throwing more work your way, but the gap for the actual salary is minimal, if existent.  Sure, there are bigger gaps at the partner pay level, but being made partner is also another game of who you know, and again, a big part of that pay comes from your bonus (more for bagging clients now than billing hours).

As for government attorneys, it’s pretty similar to associate pay, so far as salary. Again, knowing the right people may get you hired or promoted faster, but for employees on the same level and schedule, they’re typically getting paid the same amount, or within a very narrow range.

It seems like a lot of this involves who you know, and it does. But benefiting from knowing the right people isn’t just a government law job thing or a law job thing; it’s an every job thing.

Assuming there are no real differences between men and women and their lives and professional goals, there’s really only one way to end the gender wage gap: eliminate sexism. And good luck with that. I’m not suggesting in any capacity that sexism is good or right or should stick around, but it’s been a part of this country since its inception; heck, it’s been part of species since we had sexes. And while things have been improving, there’s a long way to go. We might as well suggest that patience will end the wage gap (actually, there’s very good reason to think that time will eventually cure this problem as much as it is curable, though that’s no consolation to a woman who was just relegated to the rank of permanent super-associate).

Of course, another option is to make all compensation even more formulaic than the six minute breakdown in a billable hour. Expanding the lockstep model with bonuses every so-many billable hours to all compensation levels. Surely that will make everyone more efficient and hardworking anyway, right? Of course not. Disregarding how much of my time I’d have to mark down as “bathroom” (I more or less live on coffee and Diet Coke), there’s a lot of work to be done in a law job that doesn’t fit into a formula, but nevertheless benefits the client or the firm. The few minutes of small talk I make with the prosecutor every time I call his office can’t be marked down on a timesheet, but they have helped me build a rapport with the guy so if I ask nicely and the situation is right, he’ll cut my client a break. At bigger firms and among higher ranks, you might not be the partner who bagged the whale client, but you’re the one who fields the GC’s late-night phone calls after the lead partner has gone home. You just can’t create a by-the-numbers compensation scheme that tanks into account all of the soft variables.

In the end, this Tool Kit is just another ABA contribution to the problem-with-women-in-the-law-problem. It’s chockfull of information that people who are interested in the issue already know, provides zero practical input on how to fix the issue, and of course is written in a tone that the speaker is somehow simultaneously writing and shaking her fist, so it’s totally going to change hearts and minds.

And for those of you snarky enough to suggest that fist-shaking sounds a lot like something I do, I’ll have you know that my hands are always open when they shake, and the shaking is induced by a combination of over-caffeination and stressing out about my actual job duties (you know, the shit you’re suppose to be taking care of to get ahead).

Chopper vs. Coppers

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You guys remember how in Live Free or Die Hard, John McClane ramps a cop car off a bridge support to take down a helicopter? Well, that’s something the Montreal police could’ve tried last night, except they aren’t Bruce Willis so instead they galloped off on their black horses to make an arrest. Wait, that’s not right either.

Yesterday afternoon, two adventurous Canadian inmates made a successful jail break via helicopter. Then they failed to evade recapture. Details as to how they almost pulled off this escape and how they were arrested are unclear. What is clear is what a terrible idea escape via helicopter is.

CNN reports that two men posed as tourists to go on a helicopter ride, and then once in the air, held a gun to the pilot’s head and directed him to the prison.  The helicopter hovered over the prison and two inmates climbed aboard. Less than 6 hours later, everyone involved was arrested.

What did they think was going to happen? It’s a bit troubling that we have to make this announcement, but PSA: unless you have enough fuel to make it to your volcanic island secret lair, escape via helicopter just isn’t going to work. They’re loud, they’re easy to spot, everyone around will be staring, and between air traffic control and being a freaking helicopter, they’re not particularly challenging to follow.

Even the guys who broke out of the Cook County jail in Chicago using bed sheets managed to repel down 15 stories and catch a cab drawing less attention. And, it took more than 2 weeks to catch one of them. Moral of their story: prison escape attempts work best when people don’t know you’re doing it. These two should’ve gone a little more Shawshank or Escape from Alcatraz and a little less Pascal Payet.

It’s not like hijacking a helicopter is comparable to hijacking a car. You hijack someone’s car, you can still kick them out and use their vehicle to get where you’re going; you don’t necessarily need the driver. A helicopter is a different story. Unless you’ve got a helicopter pilot license, you probably don’t know what you’re doing. You need the pilot, present in the cockpit, and alive. The odds that these guys were actually going to shoot him? Pretty minimal, given that they’d then enter a pretty rapid free-fall. There’s holding someone at gunpoint, which can be pretty effective, and then entering into a situation with mutually assured destruction. The pilot in this case didn’t figure the MAD angle out, or he did but didn’t want to be heroic. Either way though, your prison break plan is deeply flawed when your hostage can fly you to the police station and there’s nothing you can do about it.

Your helicopter plan is also pretty problematic when you get to the issue of what happens when you get out of the helicopter. The pilot knows where he let you off. If you haven’t been followed already, he’ll phone in your location. Heck, he can just take back off and aid in the pursuit.

You can kill the pilot, but that’s only if you’ve got the stomach for murder which not all criminals do. We couldn’t imagine Andy Dufresne shanking a guard on his way out. But even if you do kill the pilot, there’s still a matter of a helicopter on the ground pointing the cops in the direction of your escape.

I’ll give the preps a B+ for creativity, and A- for actually pulling off the helicopter-related part of the operation. But they set the bottom of the curve for common sense, thinking shit through, and the most important score of all: getting away with it. Getting away with it is basically the final exam in a class where the only grade is the final exam. The helicopter stunt is a check-plus for being prepared the one day you were on call. It’s still an overall F.

Page 6 of 136

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