Friday, June 27, 2014

Are the people advising President Obama about food the same people advising him about judges?

If they are not, they should. President Obama visited Minneapolis yesterday and, as reported here, went to Matt's Bar and had a Jucy Lucy. The Jucy Lucy, two beef patties which enclose melted cheese, is arguably the finest cheeseburger known to humankind.  Wouldn't you agree Mr. Torvik that whoever picked this destination for the President's lunch clearly has the taste and refinement necessary to remedy President Obama's inexplicable failure to name us to the federal bench?

Monday, June 23, 2014

Greenhouse Gases and the Platinum Coin

The Supreme Court issued another statutory interpretation opinion today in UARG v. EPA. Justice Scalia took the opportunity to torpedo the ridiculous argument that the U.S. Treasury has authority to mint a one-trillion dollar platinum coin. Well, not in so many words, but for all practical purposes he did.

The background is pretty interesting. In 2007, the Court ratified the EPA's power under the Clean Air Act to regulate greenhouse gases as an "air pollutant" in the context of motor vehicles. But this created a bit of problem in another section of the Clean Air Act, which requires the EPA to regulate, by issuing permits, for major "stationary" emitters of "any air pollutant." The statute defines major permitters as those emitting more than 250 tons of an air pollutant in a year.

The problem is that tens of thousands of buildings, schools, malls, etc, emit that much in greenhouse gases, and thus would need to be permitted if that section applied. Everyone agreed that was not intended. To avoid that absurd result, the EPA issued a regulation setting a different, much higher, threshold for the emission of greenhouse gases (between 50,000 and 100,000 tons, depending on the circumstances).

Today, the Court struck down those regulations, finding that "air pollutant" in the context of the stationary emitters means something different than what it meant in the context of the Act-wide definition applicable in the motor vehicle case. Based on context, and prior regulations, the Court held that "air pollutant" means something much narrower in the relevant section of the act, since the broader definition would render it ridiculous. Justice Scalia had no problem finding the same term to mean different things in different parts of the same statute: "the presumption of consistent usage readily yields to context, and a statutory term—even one defined in the statute—may take on distinct characters from association with distinct statutory objects calling for different implementation strategies."

So the Court found that nothing in the statute compelled the EPA to treat greenhouse gases as "air pollutants" in this context. Next, it considered whether the EPA's interpretation that it was even allowed to regulate the stationary emitters because of their greenhouse gas emissions. Justice Scalia said no, for a variety of reasons. Most interesting me, though, was this:
EPA's interpretation is also unreasonable because it would bring about an enormous and transformative expansion in EPA's regulatory authority without clear congressional authorization. When an agency claims to discover in a long-extant statute an unheralded power to regulate "a significant portion of the American economy," we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance."... [I]t would be patently unreasonable—not to say outrageous—for EPA to insist on seizing expansive power that it admits the statute is not designed to to grant.
Now, maybe it's just me, but I think Justice Scalia actually might have been thinking of the ridiculous argument for the trillion-dollar platinum coin here. Substitute "Treasury" for "EPA" and that is exactly what you'd see in any opinion considering the minting of a trillion-dollar platinum coin. There is no credible argument that Congress intended for the platinum coin statute to grant Treasury the last say on the nation's fiscal and monetary policies. It would be absolutely outrageous if Treasury pretended that it had such power.

Overall, this is another lesson in the vagaries of statutory interpretation.  Just like "air pollutant" doesn't always means "air pollutant," the phrase "such denominations as the Secretary may prescribe" doesn't actually include a denomination with 12 zeros before the decimal point.

(By the way, this decision is not the end of the world. The Court held that the EPA had discretion to regulation the greenhouse gas emissions of those stationary emitters who were otherwise under the EPA's thumb based on their emissions of the narrower kind of "air pollutants." This gave the EPA pretty much every thing it wanted—despite the tweets of certain hacks to the contrary.)

This is Part 9 in The Gillette-Torvik Blog's 94-Part Series on the Trillion Dollar Platinum Coin idea

Friday, June 20, 2014

Does the Internet link things forever?

It is hard to imagine that any Reader(s)™ of this blog are not also aware of Seth Leventhal's fantastic blog Minnesota Litigator. But in the unlikely event that someone has not visited there first, today Seth ran this post about a high school student who is suing his former school because of how it handled a tweet written by the student. Seth linked to the Complaint the student filed in federal court. While Seth wrote about the cartoon used in paragraph 80 of the Complaint, a different section caught my attention.

Wednesday, June 11, 2014

My favorite thing about the Cook County Clerk of Court's website

Is this text, which appears in the footer of every page:

"© 2002 - 2009, Office of the Clerk of the Circuit Court of Cook County."

This gives you a good idea of the last time anyone paid any particular attention to that website.

Friday, June 6, 2014

Kenneth Kratz, a.k.a "The Prize," suspended for four months

Longtime Reader(s)™ surely recall the saga of Kenneth Kratz, the Wisconsin prosecutor who sent sexual texts (what the kids call "sexts") to a victim in a domestic abuse case he was charged with prosecuting, and other terrible behavior.

Today, nearly five years after the conduct, the Supreme Court of Wisconsin has imposed its punishment: a four-month suspension.

Justice Prosser dissents, in part, basically calling out what he sees as a broken attorney discipline process.

h/t Legal Profession Blog

Take another minute to remember.

Last year, we ran the post below on the 69th anniversary of D-Day. Today, of course, is the 70th anniversary.  I thought we should run it again.  I updated it to reflect that it is a year later.

70 years ago today, Allied Forces invaded France to free it, and Europe, from Nazi occupation. Among the thousands of American, British, and Canadian soldiers who participated in the Normandy landings was an lieutenant in the Army Rangers named Gerald Heaney. After the war Lieutenant Heaney went back home to Duluth, Minnesota where he practiced law until President Lyndon Johnson named him as judge for the United States Court of Appeals for the Eighth Circuit. Many would say that Judge Heaney was one of the greatest judges to serve on the Eighth Circuit. In 2007, Congress named the federal courthouse in Duluth after him.

Tuesday, June 3, 2014

People do go to prison for copyright infringement.

Mr. Torvik did a post about decriminalization last week and asked "how many people are wasting away in prison on a copyright rap?" In a comment to the post, I said I didn't know but suspected not many. Then I remembered that I wrote my comment on a device that is a pretty fair research tool. I did a Google search "prison sentence for copyright infringement" and got some interesting hits.

Chemical Weapons and the Platinum Coin

Reader(s)™ have lodged many complaints against the blog over the years, but the most recent complaints have been:

  • Mr. Torvik seems to have gone AWOL; and
  • Specifically, Mr. Torvik appears to have abandoned his promised 94-part series on the Trillion Dollar Platinum Coin.

All I can say, dear Reader(s)™, is that I hear you, and I am doing my best. To wit, today I give you Part 8 in the platinum coin series.

The impetus for today's post is the Supreme Court's decision in Bond v. United States. The facts are simple: British secret agent James Bond went rogue and stole a large cache of chemical weapons from Saddam Hussein in 2002 (yes, that's where they went). Over the next several years, he sold the chemicals to terrorists on the black market, eventually amassing enough money to purchase nearly 60% of all platinum known to exist. Then he attempted to use that platinum to create a one-trillion-dollar coin, which he intended to gift to the United States treasury, thus solving all our fiscal problems. It was kind of a Robin Hood thing. Yesterday, the Supreme Court put the kibosh on the whole scheme.

Sunday, June 1, 2014

More Lawyers + Fewer Crimes = Tough Times for Young Lawyers

As we know, it's hard to be a young lawyer these days, mainly because there are more lawyers chasing less work. Today I want to look at one particularly stark example of this, which is actually caused by the intersection of two separate trends:

1) The long term rise in the number of lawyers in the United States; and
2) The continuing decrease in the amount of crimes committed in the United States.

Together, these trends have drastically reduced the number of potential clients available for young criminal defense lawyers. Keep this in mind when old criminal defense lawyers who hung out their shingles during the golden age of criminal defense (1968-1992) make fun of the young lawyers trying to do the same thing in today's much harsher environment

More Lawyers

Since 1969, the per capita rate of licensed lawyers in the US has increased 150%, from 1.6 per 1,000 people to 4.0:

Fewer Crimes

For a while—and purely by coincidence I'm sure—the proliferation of lawyers was accompanied by a proliferation of crime. Crime exploded from 1960 to 1980, dropped off for a few years, and then peaked again in 1991. Since then, however, the crime rate has plummeted, and the major crime rate is now lower than it was when the lawyer-boom began in 1969. The following chart shows the rate of the FBI's "Part I" crimes (a combination of the violent crimes and the major property crimes):

Major Crimes Per Lawyer: Dropping like a Brick

Put the two trends together, and here is what you get:

Between 1968 and 1991, there were an average of 22 major crimes per licensed lawyer. In 2012, that number was down to 8, and there is every reason to believe that the bottom is still dropping out. In the 70s and 80s, criminal lawyers could afford to be choosy, and the lack of competition meant there was little need to compete on price. Times have changed.

Arrests Per Lawyer Dropping Too

One objection to the graphs above is that the crime rate is not strictly speaking relevant to the number of potential clients for lawyers; what matters is the arrest rate. The arrest data I could find only goes back to 1980, but that's far enough to tell the same story. Here are the number of arrests for major crimes per lawyer since 1980:

Between 1980 and 1991, there were an average of 3.9 arrests per lawyer. By 2012, that had dropped had dropped 56% to 1.7.  Roughly speaking, in the 80s there were twice as many arrests for major crimes per lawyer as there have been in the 21st century.

Expanding the data to look at all arrests again paints the same general picture:

In this graph you can see the effect of the drug war, which kept the overall arrest rate from dropping too steeply until 1997. Still, from peak to trough, there are twice as many lawyers per arrest than there was just a generation ago.

Obviously, it's a very good thing that there's so much less crime now than there used to be. But criminal defense has historically been one of the main practice areas available to solo practitioners and small firms, even for lawyers just graduating from law school. That opportunity likely no longer exists, as the older, established criminal defense lawyers now snap up the vast majority of the much scarcer work. 

This dynamic is exacerbated by the demographic shift in the legal profession. In 1980, a full 50% of lawyers were under 40. By 2005, only 26% of lawyers were under 40, and the median lawyer age was up to 49. There are a lot more experienced lawyers than there used to be, and given the nature of legal services older lawyers have a big competitive advantage. 

A Fiercer Market

Being a lawyer has, undoubtedly, always been difficult, and it always took hard work to succeed. But it takes more hard work and more luck than it used to, at least for young lawyers who didn't graduate from top schools or at the top of their classes.  So it's a bit ridiculous when the old-timers make fun of the recent law grads as the "slackoisie" without acknowledging the demographic and social factors that made things so much easier for them—particularly when the market for legal services used to be significantly bigger precisely because those baby boomers were so, so much more likely to be criminals.