1

An insane weekend

Posted by T. Greg Doucette on Jan 9, 2011 in Unsolicited Commentary

By now I’m guessing all of you have heard about the horrific massacre that happened yesterday in Tuscon, Arizona. I was oblivious to what was going on until the NCSU-WFU basketball game I was watching got interrupted for a news alert.

The rush to be wrong first was nothing short of disgusting. Within minutes of me updating my Facebook status to express my bewilderment, wondering aloud if Mexican drug cartels were involved — what I thought was a rational question given Arizona’s immigration debates and Tuscon only being 60 miles from the border — a colleague felt the urge to explain that it was “a teabagger hit,” a refrain repeated across Twitter, Facebook and the media as shameless liberals seized on the tragedy moments after it happened to score political points and attack people they don’t like (while apparently forgetting they were often the exact same folks urging people not to jump to conclusions about the Ft. Hood terrorist attack last year).

Then someone somewhere stumbled across the psycho’s YouTube page and discovered he was a flag-burning atheist who listed among his favorite books Mein Kampf and The Communist Manifesto, not exactly common character traits and reading materials among the tea party set or the broader conservative/Republican bloc. Turns out that the guy is an utter fruitcake (as most rational people assumed) who defies political pigeonholing.

As one person commented on Twitter, “[b]oth sides miss the hypocrisy of their political gamesmanship in tying a mentally ill person to the other aisle’s politics.”

But the disgraceful hypocrisy of the political discourse created by the very people whining about the political discourse isn’t the reason I bring up that tragedy, so that’s all I’m gonna say on that particular aspect of it.

Later that same day, I found out that the Pennsylvania police discovered Sister of TDot wandering along the side of a highway. When they asked what in God’s name she was doing, she explained that everything in the house (that she shares with my parents) was radioactive and making her sick. She was committed to a psychiatric institution — but not before having thrown away everything in the house while my parents were out of town, from family photos and kitchen utensils all the way down to the food in the refrigerator.

Things can always be replaced and I’m thankful no one was physically hurt. I come from a family of limited means (hence why I had to drop out of college back in 2000) so I’m not sure what my parents are going to do, but they and my sister are all alive.

The bigger issue is that things shouldn’t have been allowed to get that far. My sister’s mental condition has been steadily deteriorating over at least the last 10 years. She’s intentionally broken things around the house. She’s threatened to kill my mother. She’s rummaged through my mom’s purse when mom was in surgery, reading her text messages in search of conspiracies while taking money to buy drugs. But while other family members (myself included) pointed out that things weren’t right, my parents and my brother have either been in denial or just unwilling to take serious action — Sister of TDot was involuntarily committed once before (after the death threat if memory serves me correctly), but because she’s over 18 she successfully petitioned to be released and within the week was off her meds and back living with my parents.

Now it’s déjà vu all over again, and I really don’t know what to think or feel about the situation.

We live in an overly-medicated society focused on avoiding personal responsibility at all costs, one where psychiatrists and doctors have developed a syndrome for almost every vice. Do poorly on a test? You must have ADHD. Drowning in credit card debt? You’re a compulsive shopaholic. Can’t keep your marriage vows and f*cking anything with two breasts and a vagina? Gotta be a sex addiction.

But when it comes to serious mental illness, the stuff that can get someone killed — schizophrenia, bipolar disorder, depression and so on — it seems folks are content ignoring it or making excuses for it or doing the bare minimum possible to avoid legal liability without actually fixing the problem. Just scroll back to that AZ shooter story for an example: the would-be assassin’s community college had him thrown out because he was mentally ill and the armed services rejected him for the same reason, yet no one reported him to any mental health authority to get help… and now at least a half-dozen people (including a 9-year-old girl) are dead because of it.

I’m sorry for the downbeat and dour entry tonight y’all, I’m just in a really despondent and “ugh” mood right now. If you think you or a loved one might have a mental illness, please talk to someone about it and try to get help before something happens and it’s too late.

And I’ll have something more chipper tomorrow, I promise :)

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10

Is law school really worth it? (Part II)

Posted by T. Greg Doucette on Nov 14, 2010 in Unsolicited Commentary

Good evening y’all! :)

Yesterday I finally finished editing this entry on the monetary costs-vs-benefits of law school, which pulled together some easily-accessible data based on my own work history, ADA salaries in North Carolina, my tuition and fee payments for both N.C. State and NCCU Law, and so on.

Recognizing that it only took me about 2 hours for the data gathering / spreadsheet making / graphic creating / writing / editing, I didn’t tout it as a comprehensive panacea of analysis — even going so far as pointing out “[d]ata-driven analyses like this are, in a word, pointless. There are simply too many variables involved to produce anything useful[.]”

But that didn’t stop the comments on the post from being uniformly negative :beatup:

All the commenters raised points worth considering though, so rather than limit discussion to the comments section of that particular thread I figured I’d do a copy/paste in a separate entry with my responses.

For clarity, I’m using the same snippet-by-snippet response style I ran with in deconstructing the Pope Center’s hit piece on me way back in March. If you haven’t already done so, I’d encourage you to read yesterday’s entry and the comments yourself just so there are no concerns about me misrepresenting what was said :D

Here we go…

—===—

Aaron Massey: Since we’re both American, this might be completely anti-cultural, but I think you’re calculations are still significantly off because you’re not accounting for retirement savings plans. The head start on retirement that both the HS diploma and the BA/BS degree would have can make a big difference once you start factoring it in. A higher income is nice, but so is compound annual interest/stock appreciation.

I didn’t include any mention of retirement savings in my post, because it’s simply not relevant to the discussion :)

If you take a look at the “caveats” section of the entry, my only requirement is that any money earned during college or law school can’t go to defraying education expenses — done solely to artificially magnify the cost of that education for the purpose of the analysis.

The vast majority of college students work, which is why the common categorization of years in school as a true “opportunity cost” barely holds water (and retains even less). If a freshman wants to set up a 401(k) and put money into it from his side job, he wouldn’t run afoul of my analysis. Similarly, there’s nothing stopping a law student from taking a chunk of their financial aid refund or earnings from a summer associateship and socking that into a retirement plan as well.

Now in both cases they’d be better off financially by paying down their student loans, since their long-run net return on investments will likely be less than the 8% loan interest rate I’m using. But if they did that I couldn’t artificially inflate the student loan interest for the analysis ;)

If we assume students can and do work (but simply don’t defray education costs), a corollary question may be “Will they be putting away as much as someone working full-time?” And the answer to that is “It depends.”

Unlike the full-time employee, typically students get to have their living expenses (rent, electricity, etc) rolled into their financial aid package; it’s why economic analyses typically show traditional college-aged students having the highest discretionary income of any age group. Under those circumstances, a student could easily put away a comparable amount for retirement if they had the inclination to do so.1

Since planning for retirement isn’t precluded by my analysis and could easily be done by all three hypothetical students, I think for this particular analysis we’d lose more from the confusion inherent in tackling too many issues than we’d gain from discussing 401(k)s and related savings plans :)

***

Aaron Massey: Also, I also think you’re generic approach to the four year college degree is a little difficult to justify. Some degrees (like computer engineering) have starting salaries that average about $60,000. Others are almost half that.

Could some folks start out making more money? Of course. But similar to bringing in the discussion of retirement savings, expanding the analysis to include a litany of possible starting salaries for the BS/BA track adds a lot of noise without much signal.

For example, if we’re going to differentiate degrees like computer engineering to account for the higher salaries, it’d only be fair analytically to also differentiate the law track to rely on that expertise — an attorney doing IP-related litigation before the US Patent & Trademarks Office will be making far more than the ADA salaries I included ;)

Synthetic Work-Life Earnings Estimates by Degree

The generic approach also has the benefit of its reasonableness being reviewable against aggregate data compiled by the government. For example, the U.S. Census Bureau produced this compilation titled “The Big Payoff” analyzing data on average salaries and synthetic work-life earnings by education level, gender, race, and so on.2

Based on the government’s compilation, I’ve overestimated lifetime earnings of the diploma-only worker by ~$150K, underestimated the BS/BA earnings by only ~$53K, but underestimated professional degree earnings by ~$1,698K (aka $1.7M). The rhetoric about them being “difficult to justify” notwithstanding, my numbers are generally in line with the government’s except for the legal salary (that I’ve gratuitously underestimated).

So while a more-nuanced approach might provide a minimal amount of added clarity (at the expense of a lot more reading), I’ve already tilted the numbers so far in favor of the non-law school route that doing so isn’t particularly meaningful.

***

Aaron Massey: Still, the most important problem with this sort of raw calculation is that your disclaimers in the preliminaries are far more important than the rest of the post. “Worth it” is a question of happiness, which is often not at all about money. Sometimes, life happens and no amount of money will help.

I wholeheartedly agree, 110%. It’s why I linked to Jack Whittington’s entry on that very topic, and why the “I’d have more fun doing law” argument was central to my email to BL1Y.

But since Jack already covered the “Happiness is important” route, and BL1Y covered the “You’re not going to be happy” route, that left me with only the financials :beatup:

***

Aaron Massey: Realistically, the best advice anyone considering law school can receive about whether it is “worth it” is this: “Don’t just think that you’re going to be better off financially; run some numbers using some potential scenarios, including one in which you abandon law altogether. Also, don’t just think that more money will actually make you happier; be honest about what your life goals really are.”

I agree with everything here except the first word — strike “Realistically” and replace it with “Ideally” ;)

Realistically, almost no one’s going to do that level of analysis… which is why I did it for them :angel:

—===—

BL1Y: A lot of the trouble with students going in to law school is that they look at data like this and see law school as an investment. It’s not.

If you sit on the couch eating potato chips every day, your JD doesn’t bring in any money. If you go back to your old job, your JD typically won’t get you a raise (especially if compared against 3 lost years of seniority). A JD is merely a credential on your resume that may, or may not, make certain new job paths available to you.

What many law students don’t realize going in is how much work is then required. The JD doesn’t bring you any extra income, you do. You have to work for it.

I’m not entirely sure there’s a point here.

The same complaints you’re levying against a JD are also true of a BS/BA, but I don’t think that means we make the leap to saying folks should avoid giving up 4 years and various sums of $$$ to get a college degree.

***

BL1Y: And, for many people, the stress, boredom, long hours, and shitty atmosphere are not worth the increase in salary.

And, what makes law school a particularly shitty “investment” is that until you start working after graduation, you really have no idea whether you’ll like it or not.

This is a perfectly fair criticism, though I think you overstate the ability to figure out if someone would like law or not before going to law school.

There’s nothing preventing an aspiring law student from performing a little due diligence by trying to get a job in the legal arena and/or talking extensively with current practitioners. Is it going to be a perfectly accurate representation of actually living the life of a BigLaw associate? Not at all. But it should provide at least enough of an idea that it would remove “Am I going to be content / not hate my life?” as a concern before going in.

And once they’re in, if for some reason they haven’t done their research beforehand, at the very least they should learn whether or not they hate it through summer associateships or clinic work or something similar — hopefully in time to bail out before tacking on another 2 years of student loan debt.

If they haven’t done any due diligence at all before or in law school, or they have but pride stops them from getting out even though it’s not for them, they can’t then turn around and claim unfair surprise when they enter the job market and hate what they do for a living. As Professor Ks said last year, “Laziness is not a defense.”

***

BL1Y: The huge rates in depression, drug abuse, and suicide indicate a very high risk of being stuck in a job you hate. In fact, it’s probably easier to get a job in Big Law than to get an enjoyable one.

I concede I’ve got rose-colored glasses on this one, having already “enjoyed” the life of a homeless college dropout myself. I’d happily trade a sh*tty work environment that at least keeps bills paid over having to sleep in a shelter next to Bob the Crackhead and wondering if my personal effects will be pilfered by Methamphetamine Jane by the time I wake up ;)

But, more broadly, concerns over work environment are applicable to the BS/BA folks and the diploma-only people too. That’s the nature of just about any marketplace.

My suspicion is that the higher incidents of the various pathologies you noted are more the result of higher reporting, since lawyers play higher up the socioeconomic ladder — it’s easier to be an addict when you’ve got the money to spare, and to hire a therapist to talk about your depression when you actually get health insurance benefits and vacation time that you can take without wondering how your rent’s going to get paid.

—===—

Va.: I was really looking forward to this post, but I’ve got to say I’m a little disappointed with the methodology.

It was a quick post by a current student cobbled together on ACC football Saturday — cut me some slack :P

***

Va.: I also think that your analysis doesn’t really capture the “worst case” scenario that I’m seeing play out among people I know. Your expectations of being able to obtain a job after law school are certainly reasonable (or at least they should be), and you seem to have no illusions (unlike many law students) about how easily $160k jobs are to come by. However, despite applying for any and every job they see (including ADA positions), many people I know aren’t employed. I know people who graduated in 2008 who are still doing temp attorney contract work. Some can’t even get that. A lot of people aren’t doing what they set out to do or have had to make geographic compromises that take them away from friends and family. Although I certainly hope you find a job before graduation or soon thereafter, being unemployed for 6 months to a year or more can start you off in a financial hole that can be pretty difficult to get yourself back out of. The uncertainty is stressful and “settling” for jobs you don’t want lowers your quality of life.

Unemployment is a legit point, and one I thought about when I was writing the entry.

But I opted to exclude it as the “worst case” scenario because the overwhelming majority of people still find jobs. Even acknowledging the games law schools play with their employment data, few schools have 6-month employment rates below 80%. It didn’t make sense (to me at least) to tailor the analysis toward the other 20%, particularly when the economy will likely be turned around by the time 2013 gets here.3

If we want to factor in unemployment, though, it can be done fairly easily from an economics perspective by weighting the results. Essentially we’d take the projected work-life earnings and multiply by the percent probability of being employed, e.g. the $2.7M x 80% if we assume permanent 20% unemployment for the person’s entire work-life.

Doing comparable calculations for the other two columns makes law school less attractive from a marginal cost-benefit standpoint, but still a financially better option than just high school or just college even factoring in law school costs.

I’m less sympathetic on the “they’re not doing what they want yet” argument, but that’s also out of my own personal bias than any rational reason. My first job after dropping out of N.C. State was loading UPS trucks from 3am-8am Monday-Friday; it didn’t pay much and definitely wasn’t what I wanted to do, but it kept a (non-crackhead-containing) roof over my head and helped shore up my financial foundation while I looked for better work. The same principle applies to the law grads — I know it’s not much consolation to the people stuck in that situation, but where you start isn’t where you end up :)

***

Va.: And a good chunk of law schools are private and have much higher tuition than you do.

Very true… but a point that doesn’t necessarily change my conclusion ;)

On the one hand, I concede that plopping in cost data for other law schools affects the lucrativeness when using my salary numbers.

On the other hand, students have a choice in what law school they attend as far as cost is concerned. Using me as an example, NCCU Law was my first choice because UNCCH Law charged twice as much despite similar bar passage rates and employment prospects in North Carolina (which is where I’d prefer to stay professionally).

And on the third hand, in many cases the more expensive schools also have better employment rates and salaries — a point you yourself made to me back in January :P :)

***

Va.: Anyway, I think your conclusion should probably be a bit more cautious in tone. If you don’t get the job you want, or any job at all (god forbid…), then the evaluation would certainly change.

This is probably true. But would any of y’all still read this blog if I wasn’t flippant most of the time? ;)

Besides, if I don’t end up where I want maybe BL1Y will let me join him, Namby Pamby and Nando in the Cynics Club :spin:

—===—

So that’s my rebuttal y’all :)

Have any comments / criticisms / witticisms / thoughts of your own? Please post them below :D

  1. And inclination is really the crux of that particular issue: even a non-trivial chunk of full-time employees don’t save for retirement thanks to the “consume first, save later” philosophy instilled in people’s minds by our cradle-to-grave welfare state :roll: []
  2. I concede up front that the Census Bureau’s document is now 8 years old, but if you’re inclined to spend the time over at the Bureau of Labor Statistics website you’ll find that the values haven’t changed much in inflation-adjusted dollars, even with the recent recession. []
  3. Granted that might be excessive optimism on my part, but the idea of us being in or near a recession for 5 straight years is practically unheard of in the history of the American economy. []

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9

Is law school really worth it? My $.02

Posted by T. Greg Doucette on Nov 13, 2010 in Unsolicited Commentary

Just over a month ago, I shot an email to BL1Y as part of his open-ended challenge to defend reasons for going to law school.1 I wouldn’t characterize his counter-argument as bulletproof, but I doubt it was meant to be — BL1Y has staked out his niche as a sardonically dismissive critic of the legal arena (“Defunct Big Law Associate” as he puts it) and he excels at it, so he’d be stepping out of character to offer anything beyond a cursory rebuttal.2

I’m comfortable letting the man own his chosen niche ;)

But then a few weeks ago Jack Whittington over at World Wide Whit posted an entry on the non-monetary side of law school’s value. It’s a good read, and prompted a colleague to remind me of the BL1Y entry and ask me for my thoughts on the financials.

Fast forward past my weeks of slacking on the blog posts, and you get this entry :beatup:

Is law school really worth it, just looking at the money involved? To borrow the title of Thursday’s entry, “Yes, but…”

====================
I. THE PRELIMINARIES
====================

Data-driven analyses like this are, in a word, pointless. There are simply too many variables involved3 to produce anything useful for more than a couple people in a very narrowly-defined set of circumstances.

Anyone that tells you otherwise is lying to you. Period.

But with that disclaimer out of the way, having the data to look at it can still provide some insights — particularly if you happen to fall in that narrowly-defined set of circumstances :)

For this entry, I’m using myself: a mediocre student at an unranked Tier 4 law school interested in becoming a prosecutor in the same state.

====================
II. THE CAVEATS
====================

As you’d probably expect, there are a lot of these :beatup:

Here goes:

  • Generally, these stipulations (and even the data itself) are intentionally focused on producing the worst-possible case for law school.4 If law school’s still “worth it” under this worst-case analysis, by default it’s “worth it” under normal circumstances.
  • This is also a “cash only” analysis. On income, I’m only counting salaries and excluding benefits since they’re difficult to value.5 On costs, I’m only counting tuition and mandatory fees; optional expenses are excluded since they’re… well… optional :P
  • All of the income scenarios assume someone starting at 18 years old and “retiring” at 55 years old.
  • The starting point for each income column is based on the data sets in Section III below.
  • For the diploma-only column, it assumes a +$2K/yr raise over each of the first 5 years. My rationale is that a non-degree-holder will usually get very close to their (generally low) salary limit in the marketplace fairly early in their career.
  • In terms of inflation / cost-of-living raises, after the initial 5 years the diploma-only column assumes a 2% raise per year. For the BS/BA column, it assumes a 2.5% raise per year. And for the JD column, it (i) uses the 20-year step structure the state government uses for salary increases in the first 20 years, (ii) assumes no additional salary range increases during those 20 years,6 and (iii) projects a 1.1% salary increase for each year after maxing out at the top step.
  • Feel free to quibble with me over the percentages :)  Regardless of the specific rate, each of the 3 columns would be adjusted in tandem — and since this is a differential analysis, that limits the significance of any rate changes.
  • I assume the student either (i) isn’t working during the years in college and law school, or (ii) if they are working they’re putting $0 towards defraying the cost of education (e.g. you spent all of your summer associate earnings on hookers and blow :devil: ).
  • On the cost side, the law school column includes an extra $21,000 per year in student loans taken to help cover living expenses in place of a job. This amount is roughly comparable to what North Carolina law students can take before maxing out under the U.S. Department of Education standards.
  • The “Tuition & Fees Total” row can be considered a proxy for total required student loan debt (plus the extra $63K for law school living).
  • For the student loan interest row, I’m using a 30-year repayment at 8.0% interest. This is done intentionally — revisit the first bullet point — to maximize the amount of interest that would have to be paid out. Realistically you’ll want to refinance at a far lower rate on a shorter repayment term ;)

====================
III. THE DATA SOURCES
====================

In terms of data collection, I gathered info from a few sources:

  • First, I used my own tax returns from when I had dropped out of N.C. State to help approximate earnings for someone without a college degree.
  • For the BS/BA column, the starting amount was based on a survey of several of my friends who are alumni of N.C. State’s Department of Computer Science along with about a dozen other alumni from various disciplines (including the lower-paying humanities degrees common among law students).

    NALP salary data for 2009

  • On the law column, I downloaded all of the ADA salaries in North Carolina from the News & Observer’s Data Central portal that includes a list of all state employees and their salaries. To check the reasonableness of using this data, I also grabbed one of the spiffy graphics from the National Association for Law Placement on reported salaries in the legal industry. For salaries reported to NALP this past year, 95%+ of attorneys make $40,000 and up. Their curve correlates well with the ADA salary data, which tops out around $120K for some ADAs who’ve been around for 30ish years.
  • For the undergraduate cost info, I used the tuition and fee data from my last year at N.C. State multiplied by four years. For law school I did the same thing, using this year’s rates at NCCU Law and multiplying by three years. In both cases these end up producing overestimated expenses — since tuition and fees were both cheaper last year, and the cheaper still the year before — but the difference isn’t significant enough to matter.

====================
IV. THE EARNINGS
====================

Putting all of this together, here’s the chart of annual salaries over time:

Raw salary data from 18 to 55

The green cells are years where someone is working. The red cells are “in school” / opportunity cost years, where the student either isn’t working at all or is working to pay for stuff other than their education. And the yellow cells depict how long it would take to “pay off” the cost of education if 100% of the salary was devoted solely to paying off education-related debts.

Remember the latter item is an artificial construct for illustration only — realistically folks will be repaying student loan debts for years, not putting their entire salary toward it. And we’re intentionally using a 30-year repayment schedule to artificially inflate the cost of law school :)

Also remember this chart is for “providing a common starting point for talking” purposes only. It has -0- predictive value.7 We all control our own destinies; if someone’s not making enough money, they can find a way to make more — it just might involve making decisions they’re not comfortable making. But in general no one is stuck doing the same thing for 30 years if they really want to do something else ;)

====================
V. THE ANALYSIS
====================

So now we have roughly what our hypothetical earnings would be if we worked until 55 years old with (i) just a high school diploma, (ii) a college degree in an average major, or (iii) a law degree working as an ADA in North Carolina.

Now let’s bring in the cost data and do some comparison. Here’s a quick chart showing how things shake out:

Even after repaying law school, the JD earns more than the BS/BA

So under this model an average college graduate can reasonably expect to make an average of ~$18K more a year than someone with just high school diploma, enabling them to “pay off” their education in 3 years and 1 month. Factor in the cost of repaying that schooling and the net advantage over a diploma-only worker drops ever-so-slightly to +$17K/year, or roughly $605K over a 33-year career.

Using this same model, the soon-to-be-ADA can reasonably expect to bring in ~$409K more during his career than his baccalaureate-bearing friend — even after the 3 additional years of “opportunity cost” and the expense of paying off student loan debt that’s almost 6x more (and working 3 fewer years to boot).

====================
VI. SO IS LAW SCHOOL REALLY WORTH IT?
====================

It certainly is for me :)

Even with working a government job and staying there permanently, I’m looking at making at least $1,000 more per month than I would with just my college degree. And that’s making the (hopefully false) assumption I’m not competent enough to earn more. It also doesn’t include any assistance from foundations like NCLEAF, which provides $$$ for student loan repayment for lawyers working in the public interest arena.

And, as Jack noted in the post I linked up at the top, I’ll be doing something far more enjoyable to me than being a script monkey in a cubicle ;)

But, as with all of these things, your mileage may vary. If you don’t like law but think it’s a quick way to get rich, doing law school is probably a bad idea. If you’re determined to go to an expensive law school but will be tempted by suicidal thoughts if you’re one of the majority of lawyers not pulling in $160K+ a year, it’s probably a bad idea. Etc etc etc.

****

There you have it folks. I’m sorry it’s so long, feel free to commence with the TL;DR comments below :P

The moral of the story is, for me at least, deciding to pursue the law route was definitely a good idea — and I’ve got the data to back it up :D

Thanks for reading, and enjoy the rest of your weekend everybody!

  1. If you’re not familiar with BL1Y’s blog, you’re missing out — agree or disagree with the content, but either way it’s still pretty damn funny. []
  2. Especially for a guy that ignored the same cost-benefit warnings against law school that he now doles out ;) []
  3. Your law school, your grades, your interests, your work ethic, your tolerance or aversion to risk, your people skills, the people you know, the list goes on and on and on (and on). []
  4. Short of being totally unemployed. If you can’t find any job anywhere at all, either your standards or your risk aversion need an adjustment :heart: []
  5. For example, a healthy 25-year-old puts far less value on something like health insurance than an equally healthy 45-year-old. []
  6. Even though these range increases happen almost every year. Again, I’m trying to intentionally slant the data against law school for the sake of argument. []
  7. The JD column is a limited exception, since the 20-year step structure of salary increases is standard HR practice in state government. []

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2

5 thoughts on this Shirley Sherrod foolishness

Posted by T. Greg Doucette on Jul 21, 2010 in Unsolicited Commentary

If you’re one of those folks lucky enough to not know who Shirley Sherrod is, stop reading this entry now and go to another website :) This easily ranks among the very dumbest fabricated political controversies I’ve seen in awhile — and I don’t want any of you complaining that I’ve wasted minutes of your life enticing you to read about it :P

For everyone else keeping up on the controversy, I just have five thoughts on it:

======================
1) Most people talking about this “controversy” are just regurgitating TV talking points
======================

I learned that earlier today when I made a comment via Twitter and got into a pair of lengthy back-and-forth discussions with one of my old roommates at N.C. State and one of my colleagues at NCCU Law. Apparently my opinion was sufficiently outrageous that several third-party observers of our conversations felt the need to argue with me via other channels… only to later concede they hadn’t actually seen anything beyond what was reported on CNN or MSNBC.

If you’re not familiar with the incident and disregarded my opening warning to skip the rest of this entry (last chance! turn back now!), it all began on Monday with this entry at BigGovernment.com, a website run by conservative activist Andrew Breitbart. It features commentary from Breitbart claiming the NAACP is hypocritical on race issues and is coupled with two clips of Ms. Sherrod speaking at the local NAACP’s Freedom Fund Banquet. In the clips Ms. Sherrod tells a tale of being approached by a white farmer in need of help to save his farm from foreclosure, and she “didn’t give him the full force of what [she] could do” because he was white. The moral of her story was her later realization that issues of race are often more accurately characterized as issues of class, or in Ms. Sherrod’s words “it’s about poor versus those who have”.

Within a day Sherrod was forced to resign by Secretary of Agriculture Tommy Vilsack and was denounced as a racist by NAACP President Ben Jealous1 — both clearly overreacting out of fear they would be seen as defending reverse racism. Then everyone reversed course a day later, claiming Ms. Sherrod’s remarks were taken out of context, and the NAACP leadership even having the guile to claim it was “snookered” by Fox News (which hadn’t run anything about the story until after Ms. Sherrod was fired by Vilsack and denounced by Jealous) before posting what the NAACP claims is the “full” video on its website. The airwaves are now replete with everyone hurling the “racist” label at everyone else.

The whole thing has been so absurdly outrageous, so predictable, so orchestrated, that you’d be forgiven for thinking you were watching a movie. It’d be a farcical comedy if it wasn’t our federal government and the leadership of one of the nation’s oldest advocacy groups taking part as primary actors…

======================
2) Shirley Sherrod shouldn’t have been fired…
======================

Every law student in the country is familiar with the twin concepts of Statutes of Limitation and Statutes of Repose.

For the non-law-inclined, in overly-simplified terms a Statute of Limitation sets a deadline for filing a lawsuit once you realize you have a claim; they’re designed to prevent a Plaintiff from “sleeping on his/her rights” to the unfair detriment of the Defendant, who may not be able to mount a defense if records have been disposed or other evidence is lost. In North Carolina, for instance, the statute of limitations for most offenses is three years with one-year extensions in certain circumstances (such as when you don’t discover the injury until after the SOL date has passed).

In equally over-simplified terms, a Statute of Repose is kind of like a SOL on steroids. After the deadline set in the Statute of Repose you can’t file a lawsuit at all under any circumstances, even if you didn’t know you had a claim. These are most common in product liability cases, where a SOR is commonly set based on the date the product was manufactured or the date it was initially purchased by a consumer.

Both the SOL and SOR are essentially decisions by society (through our legislators) that certain offenses are more or less significant than others. Again using NC as my example, most misdemeanors have an SOL of 2 years while violent misdemeanors and felonies have no SOL at all (you might have heard the line in Law & Order episodes or other crime dramas that “There’s no statute of limitations on murder” in most jurisdictions).

Even if we assume the very worst about Ms. Sherrod — that her videotaped admission of not providing the “full force of what [she] could do” was true and a result of her personal bias toward the man seeking her help — it was an admission about something that happened over 20+ years ago. There are numerous crimes that society has decided aren’t significant enough to be prosecuted after 20+ years, along with nearly every tort in nearly every state. Had Ms. Sherrod committed professional malpractice in any other profession, the Statute of Repose in North Carolina would have passed in the mid-90s.

Unless there was some kind of indication Ms. Sherrod was still engaging in this kind of discriminatory conduct, as opposed to simply relating a story of personal growth, this particular instance in the 1980s should have been left alone as a dead issue and her job security shouldn’t have even been questioned. Instead she was thrown under the bus by her government employer and vilified by the NAACP out of fear of the political fallout if it appeared they were supporting reverse racism.

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3) …but that hardly makes her a paragon of civic virtue
======================

In a predictable fashion that only politics can provide, once the “full” video was posted the ensuing political commentary became totally unhinged from reality. Commentators started insisting that not only were Ms. Sherrod’s remarks “taken out of context” but that she had actually done nothing wrong in the first place.

Both claims make no logical sense.

If you haven’t already done so, go back to those entries I listed in #1 above — read the entry on BigGovernment.com and its video snippets, then watch the “full” video on the NAACP website. If you just want to listen to the farm-related story in the “full” video, it’s from 16:23 to 21:26.

I’ll wait until you get back ;)

Even in Breitbart’s original entry (the one that has since been blasted by the White House and the NAACP alike as “selectively edited”) it’s clear to even a cursory observer that Ms. Sherrod’s story is one of personal growth. She was admittedly derelict in her job duties because of racial bias, but later learned “it’s about poor versus those who have” as opposed to race. That context is right there at the 1:44 mark in BigGovernment.com’s first clip, which is the same as 18:23 in the NAACP’s “full” video.

Where’s the lack of context?

The idea that her conduct was exemplary is also bizarre. Ms. Sherrod says very clearly and unambiguously that she “didn’t give him the full force of what I could do. I did enough.” That alone was bad enough, but she compounded her original failing by voluntarily picking out a white attorney for the farmer to use for filing bankruptcy since she figured “his own kind would take care of him.” It’s right there at 1:26 to 1:43 of the BigGovernment.com clip, which is the same as 18:06 to 18:21 of the NAACP’s “full” video.

It’s roughly akin to me (the farmer) drowning in a pool (the farmer’s debt), but because the lifeguard (Ms. Sherrod) is biased against fat (white) people and assumes I’ll float (escape foreclosure), he (she) decides to throw me a defective life preserver (Ms. Sherrod’s limited help) instead of diving in to rescue me (the “full force of what [Ms. Sherrod] could do”). Then when I’m still drowning he (she) throws a defective life jacket (the incompetent white bankruptcy attorney). Then when I’m a few seconds (hours) from death (foreclosure), he (she) calls over to another lifeguard (the black bankruptcy attorney) who dives in for the rescue.

Generally when a government actor has done something wrong, there is no tort liability for negligence against them when it’s an issue of nonfeasance, meaning the government actor simply has failed to take an action they were supposed to take. Tort liability for negligence typically does arise, though, when it’s an issue of misfeasance, meaning the government actor has taken some affirmative action but did so negligently and harmed the injured party as a result.

Based on Ms. Sherrod’s remarks, the farmer was smart enough to notice his white attorney (selected for him by Ms. Sherrod) was not doing his job and he would need someone else. But had the farmer not been that vigilant in monitoring what was going on and his farm been foreclosed, is there any question that he’d have an actionable claim for negligence against Ms. Sherrod?2

I’m sure Ms. Sherrod is a nice lady, and I take her at her word in the speech that she no longer has her former misguided views on race that led her to not fully help a white farmer and then pick out a deficient white attorney for him. She shouldn’t have been fired.

But that doesn’t mean she should be deified instead.

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4) The “full” tape isn’t even the full tape
======================

There’s not much to say here other than wondering what’s going on behind the scenes. The “full” tape posted by the NAACP pretty clearly is not the “full” tape. If you watch it closely you’ll notice an obvious cross-fade at the 21:00 mark where something was clearly cut out.

Why would you post something for public review and claim it’s something it isn’t?

A bigger question, for me at least: why has no one in the media noticed the missing snippet, instead breathlessly repeating that it’s the “full” tape?

======================
5) But none of it matters, because this entire controversy is stupid
======================

I’m convinced everyone commenting on this manufactured controversy has lost their minds.

To my fellow conservatives: do any of you really think pointing out racism in the NAACP would somehow mitigate racism (if found) within the Tea Party movement? Supposedly that was Andrew Breitbart’s motivation in posting his initial entry on Monday, but I vaguely recall something called the “two wrongs make a right” fallacy — which I also vaguely recall being mentioned by Jesus himself in the Sermon on the Mount (see Matthew 5:38-42).

Following up on that question, do you think it’s wise to issue an open challenge to folks to “prove” racist elements in the Tea Party? In Wake County alone, I’ve seen Republicans claim a black sheriff was releasing detainees because of their race, and I’ve seen Democrats justify the liberal Nanny State by claiming blacks weren’t intelligent enough to take care of themselves. I’d venture to guess that you can find racists in any mass movement in the country. It seems kind of dumb to instigate that discussion — especially when, if someone were to be pointed out using racist language, they’d just be dismissed as not being a true representative of the movement.

And to my liberal colleagues: do any of you really think government personnel are justified if they “didn’t give [someone] the full force of what [they] could do” as a result of personal bias, as long as they learn from it after the fact? Government employees at the local, state, and federal levels who merely “did enough” to barely comply with the letter of the law were often rightfully denounced during the Civil Rights era, and yet now one is being exalted because she had an epiphany after the fact.

Following up on that question, do you think it’s OK for the government to abuse one of its employees by forcing them to resign over a decades-old controversy? Claim remarks were taken out of context all you like, the fact of the matter is a good chunk of the liberal establishment in this country threw Shirley Sherrod under the bus without any investigation or critical evaluation because they were worried about electoral repercussions. The people who supposedly believe in defending “the little man” instead smeared one for the sake of political expediency.

To the media: who told you electing Barack Obama was going to lead to some “post-racial” society where race was no longer a topic of controversy? I’ve read this in so many news stories it’s comical. Huge chunks of the country don’t pay enough attention to politics to even know who the President is, much less that he’s black, much less that his blackness is supposed to influence their opinions on race. Your collective obsession with the transformative power of Big Government blinds you to the fact the overwhelming majority of voters and taxpayers prefer being able to go about their daily business without government intrusion — and that as a result the government has a very limited ability to shape their beliefs. I’ve got a litany of problems with President Obama’s politics, but the fact he didn’t usher in an illusory “post-racial” society isn’t one of them.

And to everybody: what exactly have we gained from this manufactured controversy? Sure we’ve “gained” a bunch of people getting pissed off at a bunch of other people and vice versa. And we’ve “gained” a fresh lease on life for a lot of really worn out political analogies (e.g. that opposing the unchecked expansion of a clearly incompetent federal government is tantamount to racism). And we’ve “gained” a collective recognition of the obvious point that we still live in a society where race is a Big Deal™.

But beyond that, this entire pseudo-scandal has been a waste of everyone’s time… and only highlighted the abject foolishness that now passes for racial discussion.

***

That’s it from me —  I promise promise promise you this isn’t going to become a political blog, and I’ll have something law-related to write about soon :) Thanks for enduring the rant, and have a great night! :D

  1. As a former dues-paid member of the NAACP, I haven’t been impressed by President Jealous. His conduct with this incident confirms my disappointment in him and how he got (s)elected. []
  2. Assuming she was a normal government actor as opposed to a federal employee. I’m side-stepping discussion of the provision of the Federal Tort Claims Act exempting “discretionary function[s] or dut[ies]” from liability — the fact Congress hasn’t allowed a right of action where most states do is separate from whether Ms. Sherrod’s conduct was wrong IMO. []

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2

Unsolicited commentary on the legal clusterf*ck facing homosexuals

Posted by T. Greg Doucette on Jun 11, 2010 in Unsolicited Commentary

For the next few weeks I’ll be spending my Saturdays in 7-hour-long classes for our ADR Clinic at the N.C. Central University School of Law. Our topic for tomorrow’s class is the complexity involved in mediating disputes across a wide range of cultural differences.

I got a taste of those challenges back on my very first day dealing with real disputes, where we had an older white guy and a younger white guy (me) mediating a dispute between a middle-aged black lady and a middle-aged Indian lady. Needless to say all 4 of us had widely divergent cultural backgrounds ;)

In reading through the ~65ish pages we’re supposed to have digested by 9am tomorrow, one section details the unique challenges facing same-sex couples who find themselves in a dispute needing mediation — and a whole litany of complications mediators need to navigate.

And as I’m reading through this all I keep thinking is “What a clusterf*ck” :crack:

It’s not that I was oblivious to the legal issues facing homosexuals per se. I had already learned quite a bit just through general education and reading the news, enough to get me booted from the Wake County GOP (see 2004-05 in that entry). Then a couple years later I got a more-detailed briefing when a trio of us in N.C. State‘s Student Senate shepherded through a resolution supporting the creation of the University’s LGBT Center. And not surprisingly the topic has occasionally come up in conversations with my gay friends, particularly whenever something Prop 8-related is in the news.

But it’s a whole different wheel of cheese when you’re having an ideological discussion with college-aged peers — none of whom have even the slightest intention of potentially entertaining the thought of maybe considering possibly getting married any time soon — versus when you’re in a courthouse with a real dispute being resolved in a legal framework with so many holes it’d make a slice of Swiss envious.

Now I’ll concede I haven’t supported gay marriage myself, though in my case it’s due to a relatively small and personal issue of me not knowing how it would affect case law on family rights1 and not having an opportunity to have an informed discussion with someone who could give me some insight into it. Beyond that minor point I say go for it; clearly it’s not like we heterosexuals care about marriage vows all that much given our 50%+ divorce rate… :beatup:

But even if I woke up tomorrow as the most vociferous anti-gay marriage advocate on the planet, our current legal structure just makes no d*mn sense. Consider this example from the reading:

“The lack of uniformity across state lines also has worsened the legal complexities, as partners may marry in one location (i.e. Canada), register in California, and then end up in New York -– which may not recognize either of these “marriages.” Some states are even refusing to dissolve same-sex marriages or partnerships created elsewhere, seeing such adjudication as a form of legal recognition, and thus leaving many couples in a terrible state of legal limbo.”

Can anyone explain to me how that setup is good for the legal system? “We won’t recognize what you have, but we won’t say you don’t have it because that would be recognizing it.” :crack:

I realize Congress adopted DOMA out of political cowardice, because (let’s be honest with each other) that’s what Congressmen do in election years. But the mess it’s created vis-à-vis the Full Faith and Credit Clause alone is really mind-boggling in its application.

And that’s just on the issue of marital status!

Think of all the other almost-contractual issues that come up in any given relationship: child custody, adoption, purchasing real property, distribution of assets, pension proceeds, insurance policies, inheritance, the list goes on and on and on (and on). And at least based on this reading there seems to be exceedingly little legal framework in place at all for same-sex couples, and what little exists is essentially completely inconsistent across state lines.

I wish I had the time to go into this in a bit more detail, but unfortunately I’ve gotta get to bed so I can be up on time for class. I’d like to hear from you, dear readers, about your thoughts on the issue — not so much the impassioned human rights arguments (those are important too but this is a law-oriented blog :P ) but whether the legal structure we’ve currently got in this country is tenable in the long-run or if/how it should change. My personal $.02 is that something’s gotta give, and fairly soon.

But I’m just a 2L so what do I know ;)

Have a great night y’all! :D

  1. I learned the hard way when I was younger that the statutes and case law in several states heavily favor the mother in child custody cases. I’m not a fan of the favoritism, but assuming the laws on it don’t change how would that translate to same-sex couples? For example, where one lesbian partner donates an egg and the other partner carries the pregnancy via IVF? Or for same-sex males who use a surrogate, where one partner is the sperm donor and the other takes on the primary caregiver role of the child? []

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2

Unsolicited commentary on immigration

Posted by T. Greg Doucette on May 6, 2010 in Unsolicited Commentary

Good evening ladies and gentlemen :D

Sorry for yesterday’s absence, I was enjoying some festivities for Cinco de Mayo — or “Cinco de Drinko” as several of my colleagues have called it. Having already written one post while less-than-fully sober, I figured it would be best if I put the laptop down and ensured history did not repeat itself ;)

The holiday did provide an opportunity for political banter, though, as my Facebook mini-feed had more than a few friends with status comments along the lines of “How can you celebrate Cinco de Mayo and Arizona’s racist immigration law at the same time? Hypocrites!” and so on.

Now those of you who are long-time readers here at law:/dev/null know I’ve generally eschewed discussion of non-education political issues here on the blog, leaving the Unsolicited Commentary category with only 2 entries out of my 200ish posts so far. And that’s despite having a fairly successful career in student-run politics, first in the Student Senate at N.C. State and later revitalizing the statewide UNC Association of Student Governments.

The reason is pretty simple: being a student advocate is easy because (with very few exceptions) everyone wants the same 3 basic things — an accessible,1 affordable,2 and quality3 education. Most debates circle around how to achieve those 3 goals.

The “real” world political issues, on the other hand, seem to be a different beast entirely. There’s an entire industry of highly-paid politicians, pundits, and other pontificators whose sole job is to convince you that they want what you want, but also that what you want isn’t what that-guy-over-there ::points:: wants. Making progress on anything remotely significant is almost impossible because folks who make a living in the political industry rake in more $$ by controversy than by consensus.

The caustic predictability of “real” world politics has convinced me that I have a roughly 0.00% chance of successfully getting elected to anything that’s not on a college campus :beatup:

Bringing that tangent back into the main point of this post: the whole immigration issue is an example of both sides of the political class raking in the cash while allowing near-universally acknowledged challenges to go unaddressed. So given the complete dysfunction that seems to characterize the US Congress nowadays, Arizona took widely-publicized steps to address the issue last week. You can read this entry in the New York Times about the immigration law they enacted, or read the actual text of the bill here.

Depending on who you ask, the law is either a sensical move for basic law and order or a racist effort to rile up white folks in an election year. More tellingly, the debate masks the fact that no one seems interested in any serious dialogue — or creating any meaningful consensus — on anything related to immigration.

To my liberal friends: what would your solution have been? Arizona has a huge community of illegal immigrants, a portion of whom seem intent on living a life of crime (just like every other ethnic group). The federal government has taken -0- significant action to address crime resulting from trafficking in drugs and in humans, and the situation has gone unaddressed for so long that it’s now negatively impacting a number of border communities. An Arizona rancher was murdered back in March presumably by a foreign national — should it matter that the foreign national came from Mexico versus, say, Afghanistan or Iraq or Nigeria?

And why the opposition to securing the border? Shouldn’t any serious public safety effort by a country include monitoring who comes in or out of it? Why bother screening airline and ship passengers if we’re not going to do the same for the roadways?4

To my conservative friends: why the hostility to immigrants in the first place? Unless you’re Native American, your family immigrated to this country at some point too5 — and odds are good they were poor when they got here. Illegal immigrants are supposedly taking jobs and suppressing pay rates… but aren’t y’all the same people who support eliminating the minimum wage and who complain about other people feeling entitled to things? If illegal immigrants are supposedly a drain on our social welfare programs, isn’t that more of an indication that those programs are too easily available for everyone?

And if you believe like I do that the United States is the greatest country to ever grace God’s Earth, shouldn’t we be encouraging people to move here? Would you rather have the next Einstein or Sagan or Hawking pledging allegiance to the United States or to Mexico? And is it moral or ethical for us to condemn someone else simply because of the misfortune of where they happened to be born? Or worse, to condemn a child because their parents committed a crime?

I could go on, but you get the point — and this entry’s already getting a bit long anyway :beatup:

I’m a firm believer in American exceptionalism, and believe that exceptionalism is a result of the people who live here now building on the limited-government framework provided by the people who came before us. If you can make it across the border, I say welcome. Our immigration laws should be liberalized so that you can live and work out in the open just like everyone around you. And if you put me out of work in the process, it’s a sign I need to step up my game and improve my skills so I’m more competitive in the marketplace… or, if I refuse to improve, a sign that I need to accept that I’m not entitled to the wage I used to earn and should learn to make do with less.

But I’m also a firm believer that national security necessarily requires border security, anyone who commits a crime while a guest of this country should be punished far beyond mere deportation, and if the federal government refuses to take meaningful action then state laws like the one enacted in Arizona are the inevitable (and de facto acceptable) price paid for federal incompetence.

Like I said: a roughly 0.00% chance of successfully getting elected to anything that’s not on a college campus ;)

That’s enough ranting for one day. Have a great night everybody! :D

  1. My short-hand definition for “accessible”: being able to get in to at least 1 of the 16 public universities in North Carolina. []
  2. My short-hand definition for “affordable”: being able to financially stay in school from when you start until you finish. []
  3. My short-hand definition for “quality”: whether you’ve got something worth anything when you graduate. []
  4. And please don’t use “We don’t secure our border with Canada” as a justification — if I were a terrorist with Al Qaeda, flying into Canada and then crossing the northern border would have been one of my first tactics for sneaking into the United States. I’m not sure why it wasn’t something they exploited, but we dodged a bullet on that one. []
  5. Or were brought here, in the case of slaves and indentured servants. []

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-

Supremes uphold common sense

Posted by T. Greg Doucette on Jan 22, 2010 in Unsolicited Commentary

New 1L trend I never experienced before: having your Facebook mini-feed loaded with status updates from your peers griping about a Supreme Court decision :beatup:

I’m assuming by now all of you have heard about the Supreme Court’s decision yesterday in Citizens United v. Federal Elections Commission, the free speech case involving a group wanting to run an anti-Hillary Clinton documentary on cable TV during the ’08 presidential primary.  If you’ve been on vacation or living under a rock or something similar, you can download a copy of the slip opinion at the Supreme Court’s website.

Despite the risk of being accused of lacking a social life, I’ll confess two things up front: (i) I’ve been reading Supreme Court opinions just for the fun of it since high school, and (ii) I spent most of yesterday and today reading through all 180ish pages of the Citizens United case instead of studying (although it’s really only like 80 pages of text since the Court uses pages margins that would get a law student a failing grade :crack: ).

I agreed with the Court’s decision, and thought the dissent was particularly unpersuasive — both points that are probably not surprising given my political leanings. The concurrence from Justice Scalia provided an appreciated historical context, and the concurrence from Justice Thomas provided an interesting perspective on disclosure (even though I’m not convinced of his viewpoint).

But what really blew my mind were the Facebook status updates.

“omg this is the end of democracy in America! MONEY IS NOT SPEECH!” was one of them, with the caps added for dramatic flair. “[N]ow corporations can give unlimited $$ to candidates while the common man is getting screwed” was another. And so on it went almost universally among my 1L colleagues at NCCU Law, UNCCH Law and Duke Law.

So in typical TDot fashion I updated my own status to declare my love for the Supremes and this decision in particular ;)

A flame war ensued. At one point my mother — who’s politically about as polar opposite to me as one can get — decided to join the debate, so I figured I needed to take the discussion here to the blog where she’s less likely to read it and blow up everyone’s mini-feed with her responses :beatup:

Some gratuitous thoughts on this particular case:

  1. McCain-Feingold was shamelessly unconstitutional from Day 1. Anyone who wasn’t alarmed by its prohibition against running ads 30/60 days before an election should surrender their voter registration card immediately. Every single incumbent who voted for it knew they were doing so to insulate themselves from outside criticism, not to “reform the system.” It plainly violated the First Amendment, which the Court was kind enough to lay bare for those who still didn’t know.
  2. Money is speech. This really shouldn’t even be debatable because it reeks of common sense, but freedom of expression doesn’t count for much if it’s limited to you standing on a soapbox at the street corner — a point recognized by well over a majority of the country. For an analysis provided by the Supreme Court on the issue, go read the various opinions in Buckley v. Valeo, 424 U.S. 1 (1976).
  3. “Corporate” restrictions were arbitrary and predictably unconstitutional. Much consternation and gnashing of teeth has taken place by the left-wing denizens of the blogosphere because the Court upended limitations on corporations directly running their own “express advocacy” ads for/against a given candidate.  Yet media organizations like newspapers (themselves almost all incorporated) have always been excluded from these restrictions solely because of the fact the product they sell is labeled “the press” (e.g. separately protected by the First Amendment). This arbitrary distinction between one corporation type from another made little sense on its own, and even less so when it applied to incorporated associations like labor unions, the Sierra Club, etc — why should I have more rights as an individual than I would if I can successfully convince other individuals to agree with me?
  4. The decision’s practical impact will be negligible. Contributing money or buying ads for a political campaign is fundamentally an economic decision — the contributor/purchaser decides the value of potentially influencing the election is worth more than the cash contributed/paid. In other words, a corporation is going to give the exact same dollar amount, regardless of the mechanics, if it decides that’s the money it wants to invest in a race.  We saw this after McCain-Feingold was adopted with the sudden proliferation of 527s and their issue ads.  The Supreme Court’s decision isn’t going to suddenly open a flood of corporate spending, it’s just going to make the spending more direct instead of forcing it to be routed through fake groups set up solely for campaigning purposes. This fundamental reality was highlighted in this piece at Politico.
  5. Want less $$ in elections? Abolish contribution limits… Following the campaign-contribution-as-economic-choice point, the fact contribution limits are in place at all artificially increases the amount of money in campaigns. Think of it like a garden hose: as you’re watering your garden, the water (campaign $$) flows out in a straight path. But put your thumb (contribution limits) over the nozzle, and the water splashes in all directions. That’s functionally what happens with the current system — Joe Citizen decides he’s willing to part with $12,000 for a given race, but instead of giving all $12K to his candidate, he gives only $4K to the candidate, then $4K to a 527 supporting his candidate, and then $4K to his candidate’s party.  So now he’s got 3 agents in the political process instead of 1, and all 3 of whom will now be bidding for the same media space… artificially inflating demand, leading to higher prices, leading to the need to raise more money, and on in a spiral it goes.
  6. …or shrink the government. I know this will never happen, but the main reason so much money gets spent on political races is because the government has its hands in every cookie jar in the country. When new regulations would cost a given industry tens of millions of dollars, of course the players in that industry will spend a couple million apiece to avoid the regulations — it’s a huge economic incentive for them and their employees. Stop trying to regulate everything into nonexistence and suddenly you take away the incentive for amassing über-huge campaign war chests.

That’s my abridged rant on Citizens United v. FEC. My apologies to those of you who come to law:/dev/null for the normal chronicling of my 1L life instead of a political diatribe — hopefully you’ll still come back tomorrow :*

Have a good night folks!! :D

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Unsolicited commentary on Elections ’09

Posted by T. Greg Doucette on Nov 8, 2009 in Unsolicited Commentary

Here at law:/dev/null I generally try to avoid writing about politics (at least the non-SG variety). The main reason is simple propriety — law school seems to treat all of us about the same, regardless if we’re conservative or liberal or something else altogether. But it’s also partly out of lingering bitterness toward my own past involvement as a political activist-turned-pariah, and the realization that I’m essentially a man without a party.

So earlier this week, during my usual perusal of the law-blog world, I ventured over to (In)Sanity Souffle’s remarks on the Maine referendum that overturned the legislature’s recognition of same-sex marriage. I thought about writing something on the topic, changed my mind, and went back to studying for my soon-to-be dismal performance in Contracts.

But then this morning I went through my usual Sunday ritual watching the political talk shows, and no one seemed to mention the main take-home point I took away from Elections 2009: none of the results were surprising. At all.

====================
Interlude: A Window into TDot’s Politics
====================

Let me break from the main entry briefly to give you the 10-second rundown on my political beliefs. The 3-second rundown was mentioned in my tales of IRS woe, and it’s a suitable jumping off point for the ever-so-slightly longer explanation.

I grew up hating politicians of all stripes (which is probably a good starting point for most children), a worldview I borrowed from my grandparents. For most of my childhood I was raised by Nan & Pops, who were/are as starkly different from my parents as a Mac is to a PC. Nan graduated from nursing school a few months before she met Pops, they got married soon thereafter and have been happily together ever since; she’s a housewife who raised 3 kids and now-5 grandkids, while Pops did two tours in the U.S. Navy before spending the rest of his career as an enlisted shipbuilder for the Coast Guard who has since retired. They highlight the generational divide that separates “The Greatest Generation” and their offspring from the Hippies and their offspring — being frugal, eschewing debt, striving for self-reliance, preferring quality time with family over quantity time with a television, etc.

Their politics innately made sense to me. They hate losing so much income to taxes, especially since they successfully raised a family of 5 on modest means; but they also dislike expansive welfare programs, since they were willing to sacrifice their own wants to ensure everyone had a roof over their head, clothes on their backs, and food on the table — and figure everyone else should do the same. They’re Roman Catholics who believe in God, Jesus and so on, and generally have a distaste for the raging atheists trying to stamp out any mention of anything even vaguely religious from public life; but they also support the separation of church and state because personal matters like religion “are none of your damn business” — and consequently not the government’s business either.  Despite their age, they have no problem at all with racial minorities, homosexuals, Jews/Muslims or other groups that older folk seem to dislike for whatever reason; Nan summed it up best when she said “God made all of us the way we are, who am I to question His judgment?”

And boy do they hate politicians. As far as my grandparents were concerned, every single one of them was crooked and out only to line their pockets with our tax dollars. I’m pretty sure both of them stopped voting entirely by the time I got to middle school because “nothing ever changes.” So I not only hated politicians too, but developed an acute interest in all things political.

I decided to actively get involved politically a few years later in high school, after attending a student-oriented luncheon on political theory hosted by then-Delegate Bob McDonnell (yes, the same guy who is now Governor-elect of Virginia). McDonnell exhorted us to try and change the things we didn’t like instead of merely accepting them as the status quo. So I started volunteering for political campaigns, helped to create a Republican club at my high school, and continued to stay involved when I moved to North Carolina to attend N.C. State University.

But that eclectic blend of “free people and free markets” conservatism that’s perfectly acceptable in the military- and business-hub of Virginia Beach VA got me into trouble in Raleigh NC. I eventually became the youngest elected Vice Chairman in the history of the Wake County GOP because I knew how to passionately and intelligently debate people about things like taxes and healthcare — and I got thrown out of that same Wake County GOP a mere 2 years later because I also knew how to passionately and intelligently debate people about things like separation of church and state and gay marriage.

Fast forward to today. My political views haven’t really changed, but I’ve contributed a grand total of $0.00 to the Republican Party at the local, state or national level since my banishment. I bailed on my days as a political activist to become a lobbyist and later a policy analyst for a state legislator. And now I generally don’t play in the partisan political arena at all, preferring instead to promote higher education issues through my role as President of the UNC Association of Student Governments (albeit as the first Republican to hold the Presidency in as long as anyone can remember).

I’m still generally anti-government, anti-tax, pro-gun, and pro-military. I used to oppose the death penalty, but after working for the court system (and seeing some of the exhibits in our evidence rooms) I came to the conclusion that some people just need to be executed. I’m not a fan of abortion but don’t care enough either way to do much about it. Having grown up with little material wealth, I don’t have much sympathy for the rich — but having also been homeless shortly after dropping out of N.C. State and enduring all kinds of hell to get where I am now, I don’t have much sympathy for those who stay poor. I believe in God/Jesus/etc, but stand by Nan’s old comment that religion is “none of your damn business.”  Who’s asleep in the bed next to me falls into that same NoYDB category, coincidentally one of several reasons I’m fine with gay marriage. I voted for GWB twice, and would happily do it again. I voted for Obama, but only because McCain was the more liberal of the two.1

I could go on about dozens of other topics, ranging from W’s foreign policy (love it) to net neutrality (hate it) and anything in between. But this section has probably already taken longer than 10 seconds, so I should probably move on ;)

====================
Elections 2009: Why the Surprise?
====================

So back to last week’s elections. The national media focused on 4 stories: Republicans winning the governorships in Virginia and New Jersey, a Democrat winning a Safe Republican seat in Congress in the 23rd NY Congressional District, and Maine voters overturning the legislature’s recognition of gay marriage.

==> Bob McDonnell wins in Virginia: this didn’t really surprise anyone, if only because the polls showed a landslide for weeks. Pundits were quick to blame his opponent for the loss, but remember this is the exact same guy who ran against McDonnell for Attorney General — and who lost that particular race by only a couple hundred votes instead of the out-and-out thrashing he got last week. The simple fact is McDonnell is not only a damn good candidate who was going to win this race regardless of who ran against him, but voters also tend to prefer nuts-and-bolts / bread-and-butter / law-and-order candidates in times of uncertainty. That’s exactly the campaign that McDonnell ran.

==> Chris Christie wins in New Jersey: this one seemed to shock people, though why I don’t know. See the previous entry about the type of candidates voters gravitate toward during uncertain times. Where McDonnell was an Attorney General, Christie was a U.S. Attorney with an impeccable record of jailing corrupt politicians (which, at least as far as NJ goes, seems to be the only kind they have). Christie also focused intensely on the poor economic conditions in the state, and naturally had the more believable argument with voters since his opponent was in office when those poor economic conditions came about. No matter how big the Democratic registration advantage may have been, everyone should have seen this victory coming.

==> Bill Owens wins in NY-23: again, another obvious result. First there’s the fact his main opponent Doug Hoffman was a 3rd party candidate — love or hate our 2-party system, with few exceptions 3rd party candidates simply don’t win elections. Period. Add on top of it the factional divide among the Republicans between the liberal GOP, the moderate GOP, and the conservative GOP. For all the post-election talk of “there’s no civil war in the party,” I can tell you from personal experience it’s total BS. My eviction from the WakeGOP centered exclusively on the fact I didn’t hate blacks or gays and refused to quote Bible verses in everyday conversation, and I’ve helped put quite a few Democrats into office as a result. NY-23 is just a continuation of that same phenomenon. Owens win was a foregone conclusion… as will be his loss next year if there’s only one GOP candidate.

==> Homophobes win in Maine: bringing things full circle to that piece over at (In)Sanity Souffle, I have no doubt the sadness and disappointment are real but I’m confounded by it just the same, at least insofar as they’re rooted in the result being unexpected. Let’s not forget it wasn’t terribly long ago that mixed-race marriages were illegal in my home state of Virginia. Had that been a legislative enactment instead of a judicial decision by the Supreme Court (see Loving v. Virginia, 388 U.S. 1) would a referendum overturning it fail today? I’d like to think so, but honestly I’m not sure. People tend to give pollsters answers that would be considered “politically correct” because they don’t want to be perceived as bigots. Once someone steps into a voting booth, though, they become quasi-anonymous and can state their opinion without anyone ever finding out. And anything non-“conventional” tends to get voted against. In general I don’t like the idea of a referendum process overturning legislative enactments — the politicians chosen on Election Day should be the referendum — but the minute that referendum was allowed, supporters of gay marriage surely must have known the people opposing them were going to carry the day. I wouldn’t be surprised if it takes another Supreme Court ruling similar to Loving for anything to permanently change.

=====

Anyhow, that’s my unsolicited synopsis on the 2009 elections — like or dislike the results, they shouldn’t have surprised anyone.

And in exchange for y’all indulging me, I promise I’ll refrain from any further political commentary for the near-term future ;)

Have a good night y’all! :D

  1. And frankly I have a hard time forgiving anyone who would trample the Constitution to protect their incumbency. I’ve despised McCain since learning about McCain-Feingold in 12th Grade civics class. []

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