Blame the Lawyers?

Tim Pernetti, the athletic director at Rutgers, has resigned for failing to fire Mike Rice, the school's basketball coach, after seeing a video of him brutalizing and belittling the team's players during practice. 

Any sane person with authority over "Coach" Rice would have fired him on the spot, and Pernetti has deservedly lost his job for his insane failure to do so. But he's going down swinging, and his target is lawyers:

As you know, my first instincts when I saw the videotape of Coach Rice's behavior was to fire him immediately. However, Rutgers decided to follow a process involving university lawyers, human resources professionals, and outside counsel. Following review of the independent investigative report, the consensus was that university policy would not justify dismissal.

I will assume for a moment that this is true, because I have heard stories of similar bureaucratic nonsense—particularly in public universities and other public employment settings. Mike Rice had an employment contract. He could not be fired at will; Rutgers needed good cause to fire him. So lawyers and "human resources professionals" were going to have to review any decision to terminate, and in my experience they follow a rote, unthinking "process." According to Pernetti, they followed that process and prevented him from firing Rice because it was a "first offense" (as he said when the video first became public) and therefore "university policy would not justify dismissal."

I don't know anything about Rutgers's "university policy," but obviously that initial interpretation of the policy was wrong because Mike Rice has now been fired (for the same behavior) and no one at the university is complaining anymore that the conduct doesn't justify dismissal. (I guess they're all too busy running for cover to complain.) So maybe Pernetti has a legitimate beef against those lawyers and HR "professionals." In a remotely just world, they'd all be next in line with their resignation letters.

What's really going on here is that people are way too afraid of legal disputes, even ones that are objectively frivolous. If Mike Rice had been fired back in December, he would have gone to a lawyer, and the lawyer would have sued Rutgers alleging a breach of contract and an unlawful termination. In all likelihood, that lawsuit would have been a loser—objectively frivolous, in my opinion—but you just never know. Even sure-winner lawsuits are expensive, time-consuming, and embarrassing. So we avoid them at all costs.

But, oh the costs! How many kids took a fastball to the face from Mike Rice so that Rutgers could avoid a frivolous lawsuit? How many kids had to stand there while Rice spewed spit and shouted "you are a fucking faggot!" at them so that Rutgers could avoid a lawsuit?

Too many, obviously. This is what happens when cowards and idiots conspire.

In the end, this whole affair goes in as entry number 3,254 on my list of "Reasons I'm Glad I Don't Live in New Jersey."

The unhappiest job in America

Speaking of cranking out billable hours, the ABA Law Journal has a post about the unhappiest jobs in America.  Associate attorney tops the list beating out customer service representative, clerk, registered nurse, and teacher.

Trojan Horseshit

In a post entitled, "Trojan Horse," Linda Greenhouse blogged the other day about the emergence of a federalism argument against the federal Defense of Marriage Act:

I’ve been wondering whether the attack on DOMA will turn out to be a constitutional Trojan horse. It may bring victory: the demise of a spiteful federal statute, enacted by an opportunistic Congress and signed into law 17 years ago by a cowardly Bill Clinton. But at what price?

You might have thought the case, United States v. Windsor, was about equality: marriage equality, in the graceful current locution. The two lower federal courts that ruled in this case on its way to the Supreme Court held that the Constitution’s equal protection guarantee required the federal government to treat married couples, same-sex and opposite-sex, equally for purposes of the more than 1,000 provisions of federal law that relate to marital status.

I thought that’s what the case was about, too. But what reverberated from the bench was the discordant music of federalism – the federalism that almost sank the Affordable Care Act; the federalism that seems about to put a stake through the heart of the Voting Rights Act; the revival of the mid-1990s federalism revolution that had seemed, until recently, to have run its course at the Supreme Court with the departure of two of its most energetic guardians of states’ rights, Justice Sandra Day O’Connor and the late Chief Justice William H. Rehnquist.

Greenhouse argues that striking down DOMA would be a mistake because it would enshrine marriage as a matter of states' rights, and therefore undermine efforts to establish a nationwide right to same-sex marriage:

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)

Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.

And of course the most famous federal intervention of all was Loving v. Virginia, the 1967 decision (shockingly recent) that overturned the laws of Virginia and 15 other states prohibiting marriage between people of different races. Virginia maintained that its law did not amount to racial discrimination because the prohibition ran equally in both directions – just as blacks couldn't marry whites, whites couldn't marry blacks either. 

Consequently, the state argued, the case came down to a simple matter of federalism. But Chief Justice Earl Warren’s unanimous opinion didn’t buy it. “Marriage is one of the basic civil rights of man,” the court said. “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The right, in other words, belonged to the individuals involved, not to the state. 

The state of Virginia was quite wrong, of course, but not because it was (or is) untrue that marriage and family law is a matter committed to the states' police power. Rather, as the Loving decision put it, although "marriage is a social relation subject to the State's police power, the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment." In other words, it is in fact easy to reconcile an argument that a federal marriage regulation such as DOMA goes beyond the federal government's enumerated powers with an argument that a state law same-sex marriage ban is void under the federal constitution's various protections of individual and fundamental rights. Federalism is about the limitations on federal power—not the limitlessness of state power. Greenhouse is deeply confused if she thinks Loving was a rejection of core federalism arguments.

What really caught my eye, though, was that Greenhouse centered her piece on an amicus brief filed on behalf of some supposedly "conservative" federalism scholars. The gist of Greenhouse's piece is that these conservatives view the federalism result is the least bad result. Her implicit argument is that these conservatives obviously hate homosexuals and oppose gay marriage, but if DOMA's going down it should at least be on federalism grounds so they can carry on their evil ways under the safe harbor of state law.

That amicus brief was submitted on behalf of just six scholars. One of them is Minnesota's Dale Carpenter. I very much doubt that he thinks the brief is a sneaky way to undermine the rights of homosexuals.

E-Filing in Cook County

Cook County is slowly—very, very slowly—adopting electronic filing. So far it is only in Law Division cases, but according to an email I received today from Clerk of Court Dorothy Brown, the e-filing initiative has now  expanded to all kinds of Law Division cases. (For Reader(s)™ not acquainted with the various divisions of the Cook County courts, well, consider yourselves lucky.)

I could say a lot of boring things about e-filing in Cook County. After all, I was a law clerk when the District of Minnesota was implementing e-filing ten years ago. But all I wanted to point out is that the general administrative order attached to Clerk Brown's email gets the whole electronic filing thing off to kind of a rocky start, since it is manually scanned, and the pages were scanned in the wrong order (page 7 is in between pages 3 and 4).

Judges pretending to be Jesus.

As Easter dawns, young children will get up and search for candy.  Legally-minded people may ponder the question, can a Wisconsin state court judge play the role of Jesus in a living version of Da Vinci's The Last Supper. One can be forgiven for being surprised to learn that the Wisconsin Supreme Court Judicial Conduct Advisory Committee has answered this question.

Must have been quite a deposition.

Speaking of churning the bill, Pointoflaw.com has a post about a case where "one attorney billed 239 hours and over $90,000 to summarize a one-day deposition transcript of under 400 pages."  If the deposition were actually 24 hours-and I suspect that the deposition was probably less than half that amount of time-then the attorney spent nearly 10 hours summarizing each hour of the deposition.  Blaise Pascal wrote about how it took longer to write a short letter than a long one.  Apparently that is also true for deposition summaries.

Laughing at gay marriage

As we did with the Obamacare oral arguments, the Gillette-Torvik blog has the final tally on who got the most laughs during the two days of Supreme Court oral argument on the same-sex marriage cases.

An Inexcusable Effort At Humor?

Reader(s)™ who follow the legal news have probably heard about the infamous email unearthed in a fee dispute involving mega-firm DLA Piper. In short, some guy owes DLA Piper a bunch of fees, and when they sued him he countersued alleging over-billing, etc. (Protip: don't sue your clients.) Among the docs produced is an email from one grunt associate to another which contains the words "churn that bill, baby!" To churn, in Biglaw-speak, is to make work, or overstaff. In other words, to over-bill.

In context, the quote isn't quite as bad. It's not a direction from a partner to an associate to churn. It's rather some bullshitting between two powerless grunts about the behavior of a another lawyer (a partner, I believe) who had a reputation for running up big numbers. It is the kind of thing one grunt associate has said to another grunt associate a billion times at sweat shops like DLA Piper. Most of those grunts are smart enough not to put it in writing, though.

DLA Piper has responded to press coverage of the email with a statement that the email was an "inexcusable effort at humor." As mentioned, I think it's likely correct that the comment was said in jest, at least partially. But was it an "inexcusable" effort?

Well, some people say there are no dumb questions. I say there are no inexcusable efforts at humor, especially when you are toiling away at a two-million-lawyer law firm that I always thought was an accounting firm. But you have to know your media. Irreverence has a place in the law. Does it ever! But usually its place starts in the larynx and spews out through the mouth. What I'm saying is: don't write that shit down, bro.*

*Disclaimer notwithstanding, consider that some free all-purpose legal advice.

Congratulations to David Lillehaug

In breaking news, Minnesota Governor Mark Dayton did not name Mr. Torvik to the Minnesota Supreme Court.  Instead, David Lillehaug will replace retiring justice Paul Anderson.  Unconfirmed sources report that Mr. Torvik's candidacy was scuttled by the fact that he did not apply for the job and also lives in Illinois.

Restraining Procreative Activity

I've spent some time scanning the transcript of the Supreme Court oral arguments in the Prop 8 same-sex marriage case. I thought one exchange in particular went very poorly for the opponents of same-sex marriage.

The key for defenders of "traditional marriage" is to come up with a rational basis for restricting marriage to one man and one woman. The general argument that opponents of same-sex marriage make is that the state has a rational basis in promoting marriage as an institution devoted to procreative activity. Since only a man and a woman can procreate, the argument goes, this provides a rational basis for restricting marriage to one man and one woman (at a time).

An obvious rejoinder is: what about infertile couples? Could the state prohibit infertile couples from marrying? Obviously not, but perhaps that can be distinguished on privacy grounds. So Justice Kagan put forth a more subtle hypothetical: could the state prohibit marriage between couples over 55 years old?

[Funny this should come up, given this recent post by Mr. Gillete.]

The lawyer arguing against same-sex marriage admitted such a law would be unconstitutional, but tried to distinguish that situation from same-sex marriage. First, he argued that almost all men are fertile until their dying day, so it's very unlikely that both parties to the over-55 marriage would be infertile. Second, he argued that marriage not only encourages procreation, but discourages reckless procreation:

Your Honor, society's interest in responsible procreation isn't just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that .. 

[interruption, followed up later with:] 

[Marriage is] designed, Your Honor, to make it less likely that either party to that -- to that marriage will engage in irresponsible procreative conduct outside of that marriage. 

So the idea is, it seems, that marriage has a purpose even when the woman is no longer fertile because the marriage norms of fidelity and monogamy discourage "irresponsible procreative conduct outside of that marriage" by the still-fertile male spouse.

But why isn't this an argument for same-sex marriage? Gays and lesbians are of course just as fertile as heterosexuals, and they do have children. If the institution of marriage is essentially about norms of monogamy and fidelity, which are enforced to prevent irresponsible procreative conduct, why wouldn't allowing gays and lesbians to marry be just as likely to prevent irresponsible procreative conduct?

Indeed, many gays and lesbians get married to members of the opposite sex and have children with them, only to have those marriages break apart when it is discovered that the marriage is based on a fundamental lie. Allowing same-sex marriage would seem to make this less likely, and thus promote this supposedly essential function of marriage.