How many Star Trek references are too many?

Speaking of Mr. Spock, United States District Court for the Central District of California judge Otis Wright issued an 11-page order yesterday with at least 13 references to Star Trek (there may be more, I am not up on all the various TV shows related to the original series).  I have to believe that this is a record for Star Trek allusions in a single order. Maybe this is some sort of weird promotion for the latest Star Trek movie.

Posner on Privacy

Judge Posner has been making some waves recently after he published an op-ed on his skeptical view of privacy. In Posner's view, "there is a tendency to exaggerate the social value of privacy":

I value my privacy as much as the next person, but there is a difference between what is valuable to an individual and what is valuable to society. Thirty-five years ago, when I was a law professor rather than a judge, I published an article called “The Right of Privacy,” in which I pointed out that “privacy” is really just a euphemism for concealment, for hiding specific things about ourselves from others.

We conceal aspects of our person, our conduct and our history that, if known, would make it more difficult for us to achieve our personal goals. We don’t want our arrest record to be made public; our medical history to be made public; our peccadilloes to be made public; and so on. We want to present sanitized versions of ourselves to the world. We market ourselves the way sellers of consumer products market their wares — highlighting the good, hiding the bad.

To understand Posner on privacy,you need to know only one fact: Judge Posner has made public (by publishing!) literally every thought that has ever crossed his mind. (Here is his 170-page CV.)

He has published most of his thoughts many times. His views on privacy are a good example. As he points out, he first started making this argument about how privacy is just a euphemism for concealment 35 years ago! And if you just do a Google search, you'll find a transcript of a Big Think interview from 2007 where he says, well, pretty much the same stuff word-for-word:

No. I value my privacy as much as anyone.  But I think as a social good, a social aspect, I think privacy is greatly overrated because privacy basically means concealment.  People conceal things in order to fool other people about them.  They want to appear healthier than they are, smarter, more honest and so forth.  I mean I’m exaggerating some, but I think it’s very much a double-edged sword, from a social standpoint.  That’s number one.

Another example: Not too long ago Mr. Gillette posted about a recent Posner opinion on the wisdom of imprisoning old people, and it reminded me of a case I read in law school. When I went to look it up, sure enough there was Posner, 25 years ago, writing essentially the same opinion.

Point is, Posner is not normal. He has chosen a ridiculously public life. His views on privacy are about as relevant to me as Mr. Spock's. And Mr. Spock doesn't even exist.

Worlds Colliding All Over My Face

As Reader(s)™ may have noticed, Mr. Gillette and I disagree about many things. But one thing we have in common, apparently, is non-appreciation of Slate legal affairs reporter Dahlia Lithwick. Unfortunately for us, Ms. Lithwick has been given a prize by her peers for the quality of her Supreme Court reporting. Upon learning of this, I honestly thought for a moment that the prize was one of those anti-prizes (like a Golden Raspberry). No such luck.

My general beef with Ms. Lithwick is her cycnical, personality-focused coverage of the Supreme Court. The implicit premise of every dispatch she files is that the Supreme Court justices make their decisions based on ideology at best and temper tantrums at worst. It's rather unbearable.

So, for instance, you'll see her complaining that: 

Whether it’s through forced arbitration, limited class certification, shifting burdens of proof or other subtle tricks, the Court has gone beyond locking out litigants and well into the realm of aiding and abetting powerful corporate interests.

But I've noticed a conspicuous silence when "powerful corporate interests" somehow lose at the Supreme Court. For example, see my report on Pacific v. Valldolid (2012):

[T]he losing party in this case was Big Oil, which (along with all other big businesses) the Supreme Court supposedly kowtows to. [And] the majority opinion, written by Justice Thomas, uses textual analysis to reach a result that favors the little guy—in this case a manual laborer whose job was known in the trade as a "roustabout." 

Well, you may say, sometimes Justice Kennedy gets swung, but the Thomas-Scalia axis always be comin' down on my boys! Yet it was Justice Thomas who came to the defense of Mr Valladolid, the lowly roustabout. And then when no one's looking the Court goes 8-1 in favor of "big business" with, ahem, Justice Scalia in stirring dissent:

In Justice Kagen's first published opinion, the pro-business Roberts Court predictably sided with the creditor—a big, bad credit card company—by interpreting the Bankruptcy Code to more or less incorporate an IRS regulation that makes clear that taxpayers may not take a deduction for ownership costs unless they have car payments to make. 

Only one Justice had the courage to stand up and dissent on behalf of the poor debtor:  Justice Scalia.  He interpreted "applicable" so that simply owning a car would qualify the debtor to deduct the specified amount from his or her disposable income.  To the charge that his interpretation rendered the word "applicable" superfluous, Scalia responded, "The canon against superfluity is not a canon against verbosity."

These are just two cases I've happened to notice and blog about. I don't believe I've ever seen Ms. Lithwick so much as acknowledge any of these counter-narratives. Why not, I wonder? The answer is obvious: she's an ideologue, not a reporter.

But the plot thickens. Not only has Ms. Lithwick's ideological reporting become the subject of fawning praise and prizes, despite my our lonely efforts to undermine her, but the Roberts Court's supposed pro-business slant is back in the news because an article co-authored by Blog-favorite Richard Posner and published in none other than the Minnesota Law Review (my baby!) purports to prove it for all time. Adam Liptak has the story in the New York Times.

I remain unconvinced. Once again, the main cases trotted out to establish the Roberts Court's pro-business bona fides are cases involving class actions and arbitration. I've read many articles on this topic, but none (other than my own, of course) notes that pro-arbitration and anti-class-action policies are clear favorites of federal statutory law:

Mandatory arbitration, for example, is governed by a federal statute. Congress passed that statute, of course. Similarly, the main recent innovation in class action practice is another federal statute, the Class Action Fairness Act of 2005. Conservative judges surely take opportunities to interpret these federal statutes in conservative ways, just as liberal judges do the opposite. But in both these examples the real problem is that political conservatives have succeeded in passing laws that enshrine policies that conservatives favor. That's democracy, in all its gory, and it is certainly not the role of judges—who (as we can all agree, apparently) are not good at resolving policy issues—to undermine those policies.

So we have a pro-business Supreme Court, sure, but only to the extent that we have pro-business laws because we are a pro-business country full of pro-business people. I think I speak for the clear majority of Americans when I say to you anti-business people: Deal with it, commies.

Should we reconsider our view of Maryland?

As we have noted before, there is some evidence to suggest that the state of Maryland is a hellhole (or perhaps a Hell Hole). However, as a counterargument to the Maryland-haters out there, one might point out that today Maryland became the 18th state to abolish the death penalty. According to this, Maryland is the sixth state that has abolished the death penalty in the in the 21st Century.

Work-Life Balance is Just a Number (of Clients)

One strain of work-life-balance thinking seems peculiar to lawyers. It's the idea that lawyers' duty to their clients is absolute and therefore any attempt to "balance" something against this duty is fundamentally illegitimate. According to this view, lawyers should know when they enter the profession that "life" must always take a backseat to "work."  Here, for example, is lawyer Scott Greenfield blogging along those lines:

But you have things you like to do, prefer to do, more than practice law?  That's cool, but then you've chosen poorly. Law doesn't happen at your convenience. Judges rarely ask whether the brief they demand tomorrow will interfere with a great band playing at a local club. It's not wrong that you want to go, but that you enter into a responsibility thinking your good times trump duty.  The client, who sits awake at night believing that there is a professional working diligently to save him from ruin, has things he would rather be doing too.

I agree it's reasonable and correct to expect that lawyers will not let their "good times trump duty." I agree with this because everyone agrees with it. It's banality masquerading as straight talk. No one actually thinks "work-life balance" means asking a judge for an extension on an overnight brief (which, in real life, happens only in the middle of trial) to make time for partying, or even for junior's soccer game.

The work-life balance problem is not a battle between noble lawyers demanding duty to clients and feckless lawyers fighting for their right to party. All lawyers agree that direct conflicts have to be resolved in favor of the client. The disagreement, really, is about how many clients a lawyer should have, and how often those conflicts actually occur.

This is especially true at bigger firms. Associates who demonstrate competence will quickly find themselves in high demand. Partners will find more and more work for them to do. Usually, the culture of the firm will make it hard to turn down work without harming your prospects for partnership—even for associates who are meeting their billable hours requirements. This culture creates many lawyers who really just have too many clients. They aren't working 80 hours a week because it's what's required to professionally and properly represent a client or because it's required to earn a decent living. No, they're working 80 hours a week because it's required to properly represent 20 clients, all at once.

The solution when that happens is pretty obvious: get two lawyers to represent 10 clients each, and they'll each get to work 40 hours a week. The push for work-life balance in law firms is essentially a push for that sane solution. It is a push against a culture that rewards those who hoard work and punishes those who refuse to represent too many clients at once. That's all. I also happen to think that it is a pro-client movement, because overworked lawyers are less likely to produce top-notch work.

Lawyers have a duty to zealously and competently represent their clients, and this sometimes requires sacrifice. But there's no duty to have 20 clients at a time. In fact, there's probably a duty not to have so many clients. When I hear stories about lawyers with two hearings scheduled at the same time—offered as an example of how hard a lawyer has to work—I can't help thinking that one (or both!) of the clients is getting screwed. But I have to agree that it sounds pretty macho.

What's driving this? Simple greed. What really pushes big firms to require their associates to take on too much work, and what pushes solo practitioners to take on too many clients, is just lust for money. A solo practitioner with two or three good clients can make a very good living. In-house lawyers tend to do quite well for themselves representing a single client while punching a clock. But many lawyers want, and feel they deserve, more than a decent living. They want, and feel they deserve, to be rich.

I have a saying: getting rich is the easiest thing in the world—you just have to work all the time. This applies to lawyers as much as anyone else. A good thing about being a lawyer, though, is that if you're smart and organized you can be quite well-off without having to work all the time. In practice, this means making sure you never have too many clients.

Or, like me, you can go with Plan B, which is to marry well.

Justice Breyer is very unlucky.

The New York Times reports that Justice Breyer had to have a shoulder replaced on Saturday following a bicycle accident. The article notes that in 2011, Justice Breyer broke his collarbone in a bicycle accident and also punctured his lung in a "bicycle crash" in 1993. I wonder if there is a difference between accident and crash. Does crash suggest intent? Maybe Justice Breyer had so many accidents that the writer wanted to use another word for accident just to break the monotony.

Three bicycle crashes involving broken bones seems like a lot to me. Add in the time that Justice Breyer got robbed by someone wielding a machete, and one might reach the conclusion that Justice Breyer is the victim of some bad luck. 

Rest in peace No-Show

America has lost one of its great singing voices.  George Jones died today.  As Waylon Jennings once put it, "If we all sounded like we wanted to, we'd all sound like George Jones."  Given his propensity for skipping concerts during part of his career, Mr. Jones probably kept a lot of lawyers busy on breach of contract claims.

Here's a clip of Mr. Jones from the old Johnny Cash Show. 

Blogging judges and unctous lawyers.

Richard G. Kopf, a United States District Court Judge for the District of Nebraska, has a blog called Hercules and the Umpire in which Judge Kopf posts about the role of the federal trial judge.  It is worth a look.  I particularly enjoyed this post about Mr. Torvik's fellow Packer fan Paul Clement.  The lick-spittle way that Mr. Clement tries to re-ingratiate himself with Justice Sotomayor after insulting her is a nice example of why people dislike lawyers.  It is also a reminder that some very accomplished people have the social skills of a fencepost.  Anyway read the post and then insert your own joke about Packer fans here.

I'm glad to learn of Judge Kopf's blog as it is nice to know that Mr. Torvik and I can continue this blog once President Obama rectifies his inexplicable failure to nominate us to the federal bench.

The only constant is change

When I worked on an assembly line, one of my coworkers would sometimes say the title to this post. It was kind of ironic because on an assembly line things do not change very much. But he had worked there a long time and could remember when the assembly line was run much differently.

I reflected on this saying when I read the New York Times obituary for Edward de Grazia. As the obituary notes, Mr. de Grazia first became prominent in the 1955 when he sued the United States Postal Service over its seizure of a rare volume of the play Lysistrata. The Postal Service wanted to destroy the book because the play was “obscene, lewd and lascivious" according to then-Postmaster General Arthur Summerfield.  The obituary notes that the Postal Service also banned Candide by Voltaire. As a result of Mr. de Garzia's efforts the Postal Service released the seized volume before trial.

Our long national nightmare is over.

Back in November we indicated our displeasure with Maryland and Rutgers joining the Big 10. As if to show that there is a silver lining to every cloud, ESPN reports that once Maryland and Rutgers are in the Big 10, the conference will stop referring to its divisions as "Leaders" and "Legends." Instead the Big 10 will have divisions based on geography. Importantly, the proposed Big Ten West will include Wisconsin, Minnesota, and Iowa. Ohio State and Michigan will be in the Big Ten East along with Rutgers and Maryland. The only guaranteed football game between East and West will be Indiana/Purdue.