A Round Tuit (32)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

I've written a few times before about American Needle v. National Football League, wherein manufacturer American Needle alleged that the NFL's exclusive apparel licensing deal with Reebok violated antitrust rules. The antitrust allegations made by American Needle and the NFL's counter-arguments raise interesting, if not monumentally important, legal issues and deserve some consideration. Mostly though, these Round Tuit posts reflect my own whims and I enjoy it when legal issues arise in sports and don't involve an overpaid crybaby getting into trouble in a nightclub.

About the modern NFL, analysts often talk about the parity amongst teams in the league. Constructs like the salary cap and draft structure have been carefully designed by the league to ensure that fan interest across the country is not damaged by the dominance of a few large-market teams over their smaller-market brethren. They've been largely successful at this, as the NFL's staggering television and merchandising revenues attest. In terms of play, the game has never been stronger; while there are a few perennial losers, the talent is distributed across the league such that on any given Sunday (or Monday or Thursday or Saturday or whenever someone will pay to broadcast a game), even an underdog can prevail. Unless it's Seattle.

Against the NFL, American Needle was an underdog. As Ashby Jones reported, however, they not only won but won big:

American Needle clobbered the league, in a unanimous 9-0 decision penned by Justice John Paul Stevens. We had no dissents and no concurrences. This was an unadulterated blowout. This was the 1940 NFL Championship game; the 1986 Super Bowl.

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American Needle, which had individual licensing deals with NFL teams, sued, arguing the NFL’s exclusive deal with Reebok violated antitrust rules. The NFL argued that it is a single entity with 32 teams that compete with each other in football but not in business, where the teams collectively compete with other sports and forms of entertainment. American Needle countered by arguing that the league was actually a collection of 32 independent entities — i.e., all the teams.

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The Supreme Court on Monday essentially ruled that the NFL is composed of 32 separate business entities.

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Therefore, the Court ruled that Section 1 of the Sherman Antitrust Act applies to the NFL, and ruled that any unilateral decision made by the NFL that affect all the teams shall be viewed under the so-called “Rule of Reason” for antitrust purposes. Under the “Rule of Reason,” a lower court has to examine all of the circumstances to determine whether and to what degree the action is anticompetitive.

Lyle Denniston also noted the decision and that the adverse result for the NFL contrasts with the favored treatment allowed to Major League Baseball:

Rejecting the National Football League’s claim that it has across-the-board immunity to antitrust law when its teams join in a commercial activity, the Supreme Court unanimously cleared the way Monday for trial of a lawsuit against the joint marketing of the right to use the teams’ logos and trademarks on consumer goods. The ruling applied only to that specific joint venture, and did not cover any other collective action that the NFL — or any other pro sports league — might carry out. The Court also did not decide whether the NFL did in fact act illegally in this specific marketing effort; that will be decided at a trial, with the legality weighed under a “rule of reason” standard.

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Although major league baseball has been exempt from the antitrust laws since 1922, under a Supreme Court decision that year, the other pro leagues have not shared that immunity, and Monday’s ruling in the NFL case re-opened them to court challenge on at least some of their collective commercial efforts. The Court, however, sought to ease the anxiety that its ruling might create, saying “Football teams that need to cooperate are not trapped by antitrust law.” In an opinion by Justice John Paul Stevens, the Court went on to say that pro teams “share an interest in making the entire league successful and profitable,” and in pursuing that they may need to make “a host of collective decisions” that would be beyond antitrust challenge. The particular activity at issue, though, is “concerted activity” of the kind that is subject to challenge under the Sherman Act’s Section 1, the Court concluded.

In a second post, Denniston explained that the lopsided victory for American Needle is tempered by the limited nature of Justice Stevens' majority opinion:

While the American Needle case always had the potential to produce a significant new statement from the Court on the Sherman Act’s application to commercial “joint ventures” in general, in the end it did not do so. Much of Justice Stevens’ opinion is simply a reiteration of past rulings on such collective activity, and, indeed, did not mark any deviation from the main precedent on the subject....

Despite those limitations, Marc Edelman cited the decision as an important one within the somewhat narrow scope of litigation against professional sports leagues:

Today’s ruling in favor of American Needle is hugely important to any plaintiff seeking to challenge sports leagues; conduct under Section 1 of the Sherman Act because it preserves the opportunity for the court to review league-wide conduct on its merits.

Today’s ruling also is important from a broader antitrust perspective because it confirms that a collection of separate businesses that function as a cartel cannot “avoid antitrust law simply by creating a joint venture to serve as the exclusive seller of their competing products.”

However, whether American Needle will ultimately prevail on the merits remains far from settled.

Ted Frank disagreed:

American Needle v. National Football League isn't a tenth as important as everyone is going to be telling you over the next few days. Not only does it solely affect three or four sports entities, but nothing prevents those sports entities from reorganizing their structures to avoid the antitrust implications of this particular decision. For example, American Needle is suing the NFL because the latter (as it has done since 1963) pooled the 32 separate trademarks, owned by separate teams, into a single licensing deal. The NFL will face annoying litigation in the interim to defend this arrangement under the "Rule of Reason," but nothing prevents it from requiring teams from transferring ownership of team trademarks to the league as a condition of the franchise, and achieving the same economic result....

That said, it's a bad decision, albeit one consistent with earlier bad Supreme Court decisions on the subject of sports. Why not have a bright-line rule permitting sports leagues to act as one entity rather than expensive case-by-case determination? The odd judicially-created antitrust exemption for baseball hasn't protected that sport from the ravages of competition from other forms of entertainment.

So now that American Needle's in the record books, where can I turn next for my sports law fix? Sadly, I won't get to see Bill Belicheat frog-marched from one courtroom to another in the Tri-State Area. As Mark Conrad reported, the Third Circuit has rejected Jets season ticket holders' claims that the Patriots' unpatriotic videotaping of their opponents' defensive calls violated an abstract duty of honesty:

A group of New York Jets' season ticketholders lost their attempt to claim damages for the New England Patriots secret videotaping of the Jet's defensive calls during the 8 games played at Giants' Stadium from 2000-2007. Citing the fact that "honesty" is not a cause of action for a ticketholder who merely has a license to "enter" the stadium attend a game, the U.S. Court of Appeals for the Third Circuit, dismissed the claim, affirming the ruling of a lower court....

The ruling in Mayer v. Belichick is not surprising, but the legal analysis provides some interesting insights. Although the panel, in a unanimous opinion by Judge Robert E. Cowan, ultimately concluded that no damages can be ascertained from the suit, the discussion focuses far more on the nature of a ticket license, rather than damages.

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That raises the question of the lawsuit's viability if the license was more open-ended. Say, it permitted entry to the facility and provided a "a professionally-played match" (of course, a team would never do this, but worth a thought). But what about legislation? What if a state passed a "Sportsticketholder Protection Act" prohibiting "unduly" limited licenses on tickets as unconscionable and mandates that the event must be of "reasonable quality commensurate in the sport." That would make some plaintiffs' lawyers salivate.

Perhaps I'll get to see some litigation over a few stolen baseball signs? Probably not. Paul Kennedy noted the long but remarkably litigation-free history of sign-stealing:

It's an unwritten rule (and there are probably more unwritten rules in baseball than those of the written variety) that a batter better not turn around to see where the catcher is lining up -- unless he wants a fastball way up and in. However, it has been a longstanding tradition in baseball for a runner at second to try to steal the catcher's signs -- but he best be careful in how he tips the batter lest someone catch a hummer by the earhole.

In 1951, Bobby Thomson of the New York Giants hit one of the most famous homers in baseball history -- The Shot Heart 'Round the World and the radio announcer, Russ Hodges, placed himself in baseball lure with his dramatic cry "The Giants win the pennant! The Giants win the pennant!"

But there was more to the story. As it turns out, the Giants, who overcame a 13 game deficit with but ten weeks to go in the season, had a very sophisticated system in place to steal signs during the second half of the season.

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As I've said before, I don't understand the angst of baseball fans when it comes to stealing signs or injecting steroids -- baseball has always been about cheating and not getting caught.

If cheating and not getting caught is an intrinsic part of baseball, why that just makes it even more American! True, baseball has declined somewhat in popularity in recent decades; where it was once our most popular sport, it's now third on the list behind football and litigation. Notwithstanding, Major League Baseball is poised for a comeback, as the involvement of the league in the Texas Rangers' high-profile bankruptcy promises to make the game more personal for millions of Americans ("Hey, folks, we're just like y'all — bankrupt! Yee haw!") and give millions more what they want to see more than anything — Alex Rodriguez screwed out of millions of dollars in deferred compensation. Matthew Futterman gave us the pre-game:

The battle over the Texas Rangers baseball franchise escalated to an all-out war Monday, with the team filing for Chapter 11 bankruptcy protection in a pre-packaged effort to force a sale to Hall of Fame pitcher Nolan Ryan and his partner, Pittsburgh attorney Chuck Greenberg, after a months-long fight over the fate of the franchise.

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According to court filings those liabilities include almost $25 million that the team owes slugger Alex Rodriguez in deferred compensation and almost $13 million it owes pitcher Kevin Millwood. Neither player is with the team anymore.

The deal received the blessing of Major League Baseball CommissionerAllan Bud Selig, even though people involved with the process say two other groups bid more for the franchise.

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During the past two months the dispute became a high-stakes game of chicken between Major League Baseball, which threatened to seize the franchise and use Mr. Selig's powers to act "in the best interests of baseball" to force the sale, and the creditors, who threatened to force the team into an involuntary bankruptcy proceeding.

Behind the bluster, lawyers and bankers representing both sides continued to try to negotiate a settlement. According to a member of the creditor's group, the two sides were about $10 million to $20 million apart at the end of last week but couldn't bridge the gap.

With prospects dimming for a negotiated deal that would hand the team to the Greenberg-Ryan group, lawyers for the baseball team and Major League Baseball decided to bring the pre-packaged bankruptcy to court Monday in an attempt to maintain control of the process and pre-empt any efforts by creditors to force a sale to another bidder.

If this doesn't work out, I'll add some advertising to these Round Tuits to raise a bit of cash for a rival bid for the team. If I'm successful, I'll immediately move the Rangers to Seattle; I love that town and they deserve to have a professional ball club of their own.

Government tends to fill our lives until we refuse to allow it to do so any longer. To justify its own existence and continue its growth, government seeks to do more and more, to be more proactive and more comprehensive, to take care of us until we're unable to care for ourselves, and always to do for us and to us what it believes to be right. This is the character of government. Don't cite those instances where government has exercised restraint or diminished its role despite opportunities to enlarge it; these are the exceptions which prove the rule.

Government is not necessarily evil, nor need it be a "necessary evil". We deserve the government we demand. What has appalled me of late is our collective tendency to demand more rather than less intrusive, controlling government. It's odd, really — in business, every company no matter its size, industry, or the quality of its workforce and leadership has (even if it cannot readily identify) a few core competencies; companies expand beyond those core competencies at their peril. Why do we expect government to be different, able to competently perform every task it takes on? Those who favor very limited government should realize that there are nonetheless certain core competencies where government can and should perform well; those who favor much broader government should realize that expansion into areas beyond government's core competencies generally produces little value at great cost. Unlike businesses, when government expands beyond its core competencies, it does so at our peril.

We've drifted very far from the fundamental concept of freedom so eloquently described by Justice Brandeis in his Olmstead dissent:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.

Have we abdicated our responsibility to do for ourselves, trading our liberty — our right to be let alone, as Brandeis termed it — for the childish freedom of irresponsibility and the expectation that government can and should address every ill? I hope we haven't, but these days I see as many threats from those who act for us, often with the best intentions, as I see from those who would do us harm with the worst intentions. There were a number of outstanding posts this past week which touched on issues of liberty and the right to be let alone.

David Rittgers related his experience at a White House-sponsored conference:

First, they came for the sex offenders. I am not a sex offender, but I opposed the civil commitment of sex offenders by the federal government because it is not an activity within the enumerated powers of Congress.

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Next, they will come for suspected terrorists.

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I attended a scholars meeting with the Obama administration’s Detention Policy Task Force.... I gave my views on where detention policy should go, as did a conference room full of experts on the laws of armed conflict and criminal justice (who shall remain anonymous, as this meeting was off the record). I was dismayed to hear a law professor from a prestigious university propose a system of preventive detention as the logical solution to countering terrorism. Worse yet, to make this law less provocative, the professor further proposed that preventive detention should be applied in other criminal contexts, so that the department of pre-crime would not be seen as unfairly targeting only enemy combatants overseas. This professor had taught many of the Department of Justice staffers in the room, and I looked around to see heads nodding at the suggestion.

I responded forcefully that such a system is antithetical to American traditions of due process.... One of the reasons that few people turn to political violence in the United States is that the Bill of Rights bars the government from telling the citizenry how to worship, what to think, and what they can say. Generally speaking, you have to actually be a criminal to get charged as one.

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Unfortunately, there are more than a few people in favor of such a system. Jack Goldsmith and Neal Katyal (now the acting Solicitor General) propose a terrorism court. Sens. McCain and Lieberman want to treat all terrorism suspects as enemy combatants. Sens. Lieberman and Brown want to strip the citizenship of terrorism suspects and try them by military commission. Sens. Graham and McCain plan to close Guantanamo by creating a preventive detention court. Take a conservative plan to deal with enemy combatants captured on the other side of the world, strap on some liberal angst over tea parties and militia groups, and you’ve got a bipartisan plan for wholesale degradation of everyone’s liberties.

And when the proposal comes, the first thing they’ll say is that this is how we already deal with sex offenders.

Scott Greenfield writes frequently and compellingly about the erosion of rights generally and in criminal law particularly; he commented on Rittgers' post:

Once we break through the wall once, however, it becomes increasingly easy to do so again. Evil isn't limited to sex offenders. Or terrorists. Or drunk drivers. Or gangbangers. Or drug dealers. Or jaywalkers. People like me, who speak up for people I despise, are dismissed as clueless. We can't appreciate what it means to lose a child. How would we feel if our daughter was brutally raped and murdered?

The answer is simple, that I would want to kill the person who touched my child, rip him limb from limb, induce excruciating pain and stare into his eyes until the life flowed out. I'm no less feeling than anyone else, and all my visceral reactions are intact. But in the quiet moments when I'm not filled with anger and hatred about the evil that exists in the world, I'm capable of reflecting on why visceral reactions don't make for sound public policy.

Visceral reactions have been codified time and again, however, and Radley Balko has diligently catalogued some of the more distressing examples; this week, he described another example in which community fears and unbounded police authority translated into a "perfectly lawful" evisceration of Constitutional rights:

To hear them tell it, the officers who apprehended 39-year-old David Pyles on March 8 thwarted a mass murder. The cops “were able to successfully take a potentially volatile male subject into protective custody for a mental evaluation,” the Medford, Oregon, police department announced in a press release. The subject had been placed on administrative leave from his job not long before, was “very disgruntled,” and had recently purchased several firearms. “Local Law Enforcement agencies were extremely concerned that the subject was planning retaliation against his employers,” the press release said. Fortunately, Pyles “voluntarily” turned himself over to police custody, and his legally purchased firearms “were seized for safekeeping.”

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“They woke me up with a phone call at about 5:50 in the morning,” Pyles says. “I looked out the window and saw the SWAT team pointing their guns at my house. The officer on the phone told me to turn myself in. I told them I would, on three conditions. I would not be handcuffed. I would not be taken off my property. And I would not be forced to get a mental health evaluation. He agreed. The second I stepped outside, they jumped me. Then they handcuffed me, took me off my property, and took me to get a mental health evaluation.”

By noon, Pyles had already been released from the Rogue Valley Medical Center with a clean bill of mental health. Four days later the Medford Police Department returned Pyles’ guns, despite telling him earlier in the week—falsely—that he would need to undergo a second background check before he could get them back. The Medford Police Department then put out a second press release, this time announcing that it had returned the “disgruntled” worker’s guns and “now considers this matter closed.”

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Joseph Bloom, a psychiatrist at Oregon Health and Science University and an expert on civil commitment law, says the police who apprehended and detained Pyles likely were acting within the state’s laws. Bloom says the police are permitted to decide on their own to take someone in for an evaluation, and that there’s no requirement that they first consult with a judge or a mental health professional.

Bloom believes this is a wise policy. “It’s important to remember that this is a civil process,” he says. “There’s no arrest. These people aren’t being taken to jail. It’s not a criminal action.”

SWAT teams, guns, and handcuffs …but not a criminal action? And what if Pyles had refused to “voluntarily” surrender to the police? “Well, yes,” Bloom says. “I guess then it would become a criminal matter.”

If what happened to Pyles is legal in Oregon or elsewhere, we need to take a second look at the civil commitment power. Even setting aside the SWAT overkill in Medford, there’s something discomfiting about granting the government the power to yank someone from his home based only on a series of actions that were perfectly lawful.

Rick Horowitz wrote a tremendous post this week about the destruction of personal rights in the course of our failed "War on Drugs". If you read just one post this week, Horowitz' should be that one:

The Constitution was meant to place limitations on what governments could do. The rights — actually we called them “powers” — of government were limited. The rights — we actually called them rights! — of human beings were not. Except to the extent that it was necessary to give some up in order to give those rights — now called “powers” — to government.

The idea was to give up just enough of our rights to allow a government to do the most basic of tasks: keep us safe from people — like Kings, or maybe dictators, foreign countries, or maybe despots within our own country — who would try to reduce the rest of our rights. The ones we kept.

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Where we previously thought the Constitution limited the rights (remember, we called them “powers”) of the government, our government began to promulgate the theory that the limitation was actually on our rights (remember, we called them “rights”; actually, sometimes we referred to them as “freedoms”).

So it came to be that today people mistakenly believe that the Constitution limits the rights of individuals. And if a right claimed by a person is not “in the Constitution,” then it doesn’t exist.

The pervasiveness of our non-war "Wars" — on Poverty, on Crime, on Drugs, on Terror — has conditioned in us not only a diminished sense of our own rights but also a tendency to eagerly bargain these away for whatever new cure government proposes for whatever ails us that that moment. Sometimes we forget that liberties lost are seldom regained; sometimes we don't appreciate those losses, as each one seems benign in isolation and the larger picture is difficult to see; sometimes we know precisely what we're doing and what consequences may follow and we simply make a bet that the price will be paid by another. As Scott Greenfield wrote recently on this last point:

There is a law or regulation covering essentially every aspect of human existence. Over time, lawmakers with too little to do create the rules that keep us from bumping into one another by telling us to keep to the right. They protect us from ourselves by telling us to wear seat belts and helmets, and eat less salt. They appease grieving parents and outraged communities by crafting laws named after dead children that duplicate, triplicate, existing laws with minute additional requirements. In isolation, some people applaud these laws as serving a good function. Proponents are always well intentioned, but they become part of the vast mass of laws regulating us.

For every regulation, there must be a consequence for its violation.... [A]s a society, we seek the elimination of crime and encourage and support the police in their efforts to enforce our laws. We do not, however, think much about the scope of our laws that render each of us a criminal, to some greater or lesser extent.

If there was a machine that would detect every violation of law, we would all be found guilty of something. Granted, most of us would be prosecuted for petty, stupid offenses, but they are offenses nonetheless. If they are so petty and stupid, and if we wouldn't want to be prosecuted ourselves for them, why do we support their existence, enforcement and prosecution for others? Largely because we don't think it will ever happen to us. We don't mind unfairness to others anywhere near as much as we hate it when it happens to us.

When I was a child, I was taught that if I was one of the good guys who obeyed the law I had nothing to fear from the police; I understand now that there is a difference between "the law" and "the laws" and that the latter are so broken and conflicted that one cannot obey each and every one. More disturbing, however, is the realization that the police do not see us as good guys and bad guys. We are all suspects to them, and law enforcement has become little more than an exercise in their personal authority. Mirriam Seddiq noted that fear of law enforcement is not the same as respect for the law:

My pop brought us to the U.S. in search of the American dream and good beer. Yet, he snickers when people say "this is a free country." He reminds me of the fact that if I am in eastbejesus Idaho at midnight and there is not a soul in sight and a stop sign on the corner, I will stop and look both ways before I go forth on my journey. Why, he asks? Is it because we respect the law? Because we, as opposed to the uncivilized wretches in other countries where no one waits in line for the bus, are first world, first class and have an inherent and innate love of order? No, he says. It's because we are afraid. There could be a cop around that corner, behind the bush. Maybe, now, there is a camera tracking that road. To think its a love for the order the laws bring is just silliness.

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I wonder at what point we will stop and say enough already. Sheesh. I think I can figure some stuff out myself and don't need the powers that be legislating my every single move. I think Mr. Greenfield is correct, though, that unless those folks who say "never me" spend a few hours in a jail cell, things won't get any better.

I don't want to lose my respect for the law, but as for the laws and those charged with their promulgation and enforcement... well, there oughta be a law.

It's no secret that I've been about as fascinated as a Yank can be with Britain's general election and the coalition government it produced. I've followed news and opinion closely and when my interest often outstripped my understanding, I stretched Charon QC's and Carl Gardner's admirable patience with my questions. One of the more remarkable policy objectives announced by the coalition government is their proposal to extend anonymity in rape cases to the accused as well as the alleged victim.

The proposal has been criticized by womens' groups, which have suggested that it "gave the impression that women frequently lie about rape and could put them off coming forward"; as one advocate put it, "If a guy gets off it does not necessarily mean he didn't do it. The underlying, subtle message of this is that women tell lies and we must protect men from that. Women will pick that up and as a result some will not report rape."

Well, let's be grown-ups here; a not-insubstantial number of criminal complaints are fabricated, and rape allegations are no exception. How many false complaints of rape would it take to justify the proposed anonymity policy? If, as the policymakers suggest, the stigma of a rape accusation is such that anonymity for the accused is warranted prior to conviction, how stigmatizing do other crimes need to be before anonymity would be needed there as well? If anonymity for accusers encourages the (true) reporting of crimes which have occurred, should all complainants be protected as rape complainants are?

Gardner suggested that questions like these are beside the point:

It’s true of course that a man’s life can be ruined by an allegation of rape, even if he’s acquitted in the end. Maybe that’s a worse problem than it is for those acquitted on other charges because of the sensational interest there can be in rape cases. But there’s a strong case against the change. I doubt very much that anonymity will much affect women’s likelihood to report rape cases overall, or the conviction rate. What it will do though is reduce the chance of publicity about one rape case triggering reports from women that the man accused attacked them in the past, and identifications by women who have reported a rape, but believe they now recognise their attacker having seen him in connection with another case.

The law of rape is a fraught area. The presumption of innocence must not simply be thrown out of the window in pursuit of convictions at all cost; but nor should wrong-headed extensions of the scope of the presumption be used as a barrier to investigating rape cases. The presumption of innocence does not require anonymity, and I’m not persuaded we should grant it.

In a subsequent post, Gardner makes the case that not only does justice not require anonymity, but anonymity can prevent justice being done:

It’s of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. So said Lord Chief Justice Lord Hewart in 1923, quashing a guilty verdict arrived at by magistrates in private with their legal adviser, who had a conflict of interest.

The principle has two aspects. First, the justice system must be visibly free of bias. But second, and more fundamentally, the workings of justice must be seen in the first place. Only if justice is carried out publicly can we know it’s being done fairly.

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It’s sometimes argued that naming rape defendants means they’re not treated as innocent until proved guilty. That, though, is a misunderstanding of the presumption of innocence. It’s a vital principle, preventing the state from punishing anyone, for instance by imprisonment, unless a court is satisfied of their guilt. But it doesn’t mean, and never has meant, that nothing adverse should happen to you if you’re suspected of a crime.

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I’m content that there be limited restrictions on public justice, in order to protect lives, to ensure trials are fair, to protect children and to protect rape victims. But public justice is too precious to make any more exceptions than are absolutely necessary.

Perhaps the solution to the problem of false rape allegations is not protecting the identities of the accused but more aggressively prosecuting false complainants, trusting that such prosecutions will not deter victims from reporting true crimes.

One of my favorite programs, Lost, ended this week. In its early episodes, it was an engrossing mystery; in its later ones, it was nothing more than escapist television, but I loved it throughout. I can honestly say that I never learned anything from Lost which was pertinent to my legal practice, but others (no pun intended) did find a few legal lessons on Craphole Island. Victoria Pynchon was one; she described the survivors' progress as negotiators from the first episode to the final one:

If the negotiated resolution of disputes is all about values; personal narratives; and, collaborative problem solving, the televised-negotiated-resolution-Bible is Lost, which ended a six-year run last night in a series of spiritual awakenings for each of the major characters.

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As I became more and more involved in the complexities of the Lost narrative, the through line for me was always the Prisoner's Dilemma. The survivors lied about their motives. They betrayed one another. They remained silent when speaking might have saved them. They demonized "the others" only to find that demons inhabited their own hearts as well. When the squabbling amongst them threatened to pull them apart, another threat from "the others" or the wild boars or the deadly black smoke or the hydrogen bomb, drew them back together. And over time, they became kin.

Though the island's economics were a bit primitive, Daniel Schwartz and Alan King and Tony Kessler pointed-out examples relevant in employment and HR matters. Schwartz wrote, "Another theme that the show continually relied upon: If you can't live together, you'll die alone. It's a good lesson in team dynamics; companies that have employees that work well together, thrive." King and Kessler identified no fewer than five lessons Lost taught about hiring, safety, and other workplace issues. All well and good, but I still just really want a spin-off series wherein Detectives Ford and Straum solve crimes with the assistance of "Number One" Hurley and "Number Two" Ben and Desmond pops in once a week to call someone "brother".

Price was an object for several legal bloggers this past week. Jordan Furlong acknowledged the conventional wisdom that the legal profession shouldn't seek to compete on price and then encouraged lawyers in troubled and competitive practice areas to disregard it:

[I]t’s both sensible and logical to tell lawyers not to compete on price. Yet for all that, I’ve come to believe that it’s not good advice anymore. I think we need to learn, as a profession, how to compete on price in ways that sustain our businesses.

It’s fine, in the abstract, for a lawyer to refuse to match or beat a rival’s lower price for a given product or service. The first few times a lawyer loses a client that way, she can content herself that she held the line against the devaluation of her services and that a client who only cares about price will be a difficult client throughout. But what happens when she loses the fifth client, or the tenth, or the fiftieth, because of price? What happens when clients start to consistently say, “I can get these services at a substantially lower price down the street,” or “I like working with you, but I can’t justify the premium that you charge”?

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But you don’t need to compete on price if you can go one better: compete on cost. Reduce the inefficiencies in your practice, streamline your processes, systematize where feasible, outsource if possible, reallocate resources to match the appropriate level of talent to the appropriate sophistication of tasks. This isn’t about freezing salaries or eliminating positions or taking away free coffee or all the other myopic expense-reduction steps many law firms took during the financial crisis. This is about restructuring your business in smart ways that reduce waste, cut down on system leakage, fine-tune your engines and upgrade your capacity.

Jay Shepherd suggested that when price aligns with value, lawyers should hold firm; moreover, even in the present economic climate, when value justifies it, lawyers shouldn't avoid raising their prices:

It's oversimplifying things to say that value pricing is about saving clients money. Instead, and much more importantly, it's about aligning your prices with the value the clients place on your services. Without that alignment, there is enormous waste and client frustration. Plus, the perverse incentives and unintended consequences of hourly billing artificially inflate client costs. So yes, you can raise prices for premium service and still save clients money.

Bottom line: clients will pay for value. If you're constantly discounting your fees, what does that say about the value you provide?

Norm Pattis has practiced criminal defense long enough to know how to set a flat fee, and he explained that such fees such fees should be avoided in criminal matters for their great potential to harm the attorney-client relationship:

A flat fee places a premium on efficiency. If you expect a case to take 40 hours of time to resolve, you know what to charge to cover your time.

But suppose a black hole opens up in the middle of the case? Suddenly you learn that the case is far from typical.

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Discontent lurks at the periphery of every flat fee case once a black hole opens up, sucking time out of the world as if there were an infinite amount of it to be had.

A far better course is to charge an hourly rate. Negotiate a rate that reflects the complexity of the case, your experience and what the market bears in your area. In that case, a client is forced to consider the benefit of each additional increment of cost.

....

There is no good way to charge for legal services, I am persuaded. Clients come in need. They are afraid and angry. They want a hero, a savior, a warrior. You offer them what you can. Most often it is enough. But sometimes it is not. A client grows disenchanted, angry, they want what you cannot give. It is a risky thing to agree to represent a person in crisis. You cannot tell where people will turn in the dark of night. What to charge for this work is a topic about which I am not at peace.

Jamison Koehler commented on Pattis' position:

For me, without Pattis’ vast experience, the jury is still out. Yes, the hourly rate does offer many advantages. It assures that the lawyer is compensated for every hour he or she spends working on the case. And it prevents the client from paying for hours the lawyer has not devoted to the case.

At the same time, based on what I know now, I still prefer the flat fee, at least for the type of cases I currently handle. The flat fee allows the client and me to deal with the money issues upfront and then to put them behind us, without the continuing distraction. The client pays me the fee. I put the funds into a bank account held in trust for the client. And then I start to work on the case. There is no need to track my hours or to justify the time I spend on the case. I never need to worry that I may be wasting the client’s money by pursuing deadends. And there are no uncomfortable discussions about replenishing the trust account when funds get low.

....

Norm Pattis concludes, and I agree, that there are no clear answers with respect to charging for legal services. Even after many years, Pattis says, he himself is still not comfortable with how to charge and what to charge. The relationship shouldn’t be about money at all, he says. And yet there it is.

I think that once again, Lost may have the answer. In uncertain territory, open-ended fees do not ensure success and without hope for a timely rescue, flat fees carry great risks; the solution, my friends, is that we work for fish biscuits. Namaste.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Counterfeit Chic, Wikipedia (Design Patent for Statue of Liberty), and Paris Odds n Ends Thrift Store.