02 February 2011

A Round Tuit (55)

A Round Tuit

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.


The passage of the "Obamacare" healthcare reforms was the signature legislative effort of the President's first two years in office; the defense of Obamacare is shaping-up to be the signature legal effort of his administration's next two years.

This week in Florida v. Department of Health and Human Services (link provided by The Wall Street Journal), the landmark healthcare law was declared unconstitutional; the Administration will, of course, appeal. The ruling was reported by Ashby Jones:
Judge Roger Vinson, a Republican appointee, said that the law’s requirement to carry insurance or pay a fee “is outside Congress’ Commerce Clause power, and it cannot be otherwise authorized by an assertion of power under the Necessary and Proper Clause. It is not constitutional.”

In contrast with the Virginia ruling from last year, Judge Vinson found that the entire health care law must be struck down; that the so-called “individual mandate” is not “severable.”


The ruling ties the score at 2-2. To date, two federal judges have upheld the law as constitutional... while two have found that Congress exceeded its constitutional authority in passing it....
While I won't attempt to summarize the legal or political debate which preceded Vinson's decision (the earlier cases Jones mentions are linked in his post and were widely-discussed when issued), I will say that I find it remarkable that this ruling hinges on two screw-ups: one was a legislative mistake — in Congress' rush to draft and pass the law, a severability clause was inadvertently omitted — whereas the other was a strategic mistake — the Administration consistently argued that the individual mandate was an essential, inseparable part of the broader law, more-or-less daring the Judge to invalidate Obamacare in its entirety if he found any part objectionable. Peter Suderman explained how the Administration's brinksmanship backfired:
Because the law contained no severability clause, a contingency provision that would have protected the bulk of the law should one part be ruled unconstitutional, Vinson had to decide whether in striking the mandate he should also strike some or all of the rest of the law. Supreme Court guidance on laws lacking severability clauses suggests that judges should generally seek to excise as little of the law as possible, but also to ensure that if there is a remainder, it still serves the law's overall intended objective.

Therein lies the problem for the law’s legal backers. As Vinson notes in his ruling, both the administration, which is implementing the law and defending it in court, and Congress, which wrote and passed the law, have made clear that the individual mandate is an absolutely critical provision.


As a result, Vinson concludes that “the individual mandate is indisputably necessary to the Act’sinsurance market reforms, which are, in turn, indisputably necessary to the purpose of the Act.” Essentially, the administration's lawyers argued that the health care law wouldn’t work without the mandate, and Vinson took them at their word.
Elie Mystal, for one, was unamused that the fate of healthcare reform seems likely to turn on a swing-vote in the Supreme Court:
You know what that means? It means that very soon America will be operating under the Anthony M. Kennedy health care system. Does Justice Kennedy think that I have a right to health care? Does he think that pre-existing conditions should be covered? Is he comfortable having an entire nation’s health care system held hostage by a few insurance giants?

Exciting questions! I can’t wait to see how a man who nobody elected will decide our medical futures….
Mystal was certainly not alone in criticizing the result; Mark Hall wrote that the opinion was legally unsound and reads more like a political tract than a reasoned judicial ruling:
On first read, the most striking aspect of Judge Vinson’s ruling today is not its remedy — striking the Affordable Care Act in its entirety — but the impression one gets that the opinion was written in part as a Tea Party Manifesto. At least half of the relevant part of the opinion is devoted to discussing what Hamilton, Madison, Jefferson and other Founding Fathers would have thought about the individual mandate, including the following remarkably telling passage (p. 42):
It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.
For his part, Jack Balkin viewed the decision as inherently political, though he seemed to attribute the party views in question to mainstream Republicans rather than the Tea Party activists on the fringes of the party; he compared it unfavorably with the earlier, more limited decision in Virginia v. Sebelius:
It is hard to see Judge Vinson's opinion on the question of severability as entirely unaffected by partisan considerations....


The Republican Party does not want to excise the individual mandate but keep the most popular features of the ACA; it wants to get rid of the entire statute. This is something that Judge Hudson, who also declared the individual mandate unconstitutional in Virginia v. Sebelius, was unwilling to provide. In these "unique" circumstances, however, Judge Vinson was happy to be of service.

I never thought I'd say this, but compared to Judge Vinson, Judge Hudson is starting to look like an apostle of judicial restraint.
In a subsequent post, Balkin discussed how the intense criticism of the individual mandate has essentially missed the point:
What is lost in the debate over the individual mandate is that the point of the individual mandate is also civic republican in nature. It requires citizens to make a far less significant but also public-spirited sacrifice on behalf of other Americans who cannot afford health insurance. Individuals must join health insurance risk pools to make health care affordable for more of their fellow citizens. This is a very modest request that individuals not be entirely selfish and that they contribute to the public good in a small way by helping to make health care accessible and affordable for all Americans. Indeed, under the terms of the Affordable Care Act, one doesn't even have to purchase insurance; one can simply pay a small tax instead. And one doesn't have to pay at all if one is too poor to do so or has a religious objection.

The notion that being asked to either buy health insurance and make health care accessible for one's fellow citizens--or to pay a small tax-- is a form of tyranny akin to George III's regime is simply bizarre: it shows how perverted and twisted public discourse has become in the United States. The assault on the individual mandate is really an assault on the public duty to assist other Americans in need, and in particular, an assault on the legal obligation to pay taxes to contribute to the general welfare. The assault on the health care bill is not a defense of liberty. It is a defense of selfishness.
David Gans suggested that Vinson's take on Constitutional originalism was a highly-selective and ultimately disingenuous reading of Supreme Court precedents:
Chief Judge Vinson’s opinion, issued yesterday, profoundly misinterpreted the Constitution in order to justify striking down the Patient Protection and Affordable Care Act. In his opinion, Judge Vinson invoked a highly selective, skewed version of our Constitution’s text and history. Relying heavily on the work of a few conservative originalists, Chief Judge Vinson’s opinion ignored or dismissed every piece of evidence to the contrary, including the Framers’ understandings of the scope of the powers of the federal government and Marshall Court’s canonical cases construing the Commerce Clause and the Necessary and Proper Clause.

In Vinson’s telling, the Commerce Clause was designed by the Framers of the Constitution to be a narrow grant of power, which permitted Congress to regulate trade between the states, and to eliminate discriminatory trade restrictions between the states. But his suggestion that Congress’ authority under the Commerce Clause was limited to matters of trade has no support in history, and is contrary to binding Supreme Court precedent, rulings that Vinson, as a lower court judge, is supposed to follow.


In Chief Judge Vinson’s version of Supreme Court history, the Marshall Court hardly figures at all. According to Vinson, the history of the Commerce Clause in the Supreme Court begins with the Lochner era, which repeatedly limited the power of the federal government under the Commerce Clause, invalidating federal legislation designed to protect workers and consumers from powerful corporations. Vinson writes, “for most of the first century and a half of Constitutional government . . . the Clause was given a ‘miserly construction,’” quoting with approval a 1983 concurring opinion authored by Justice John Paul Stevens. In the process, Vinson turns the Stevens opinion on its head. Justice Stevens called the Lochner era precedents “miserly” because they departed from the Framers’ design “to confer a power on the Federal Government adequate to discharge its central mission,” and were properly repudiated on that basis, but for Vinson, the Lochner era precedents are foundational, and correct. Chief Judge Vinson looks to them precisely because they gave a cramped reading to the powers of the federal government. Guided by the rulings of the Lochner era, it’s no wonder that Chief Judge Vinson finds the Patient Protection and Affordable Care Act wanting.
Academic opinion was certainly not uniformly negative. Ilya Somin was practically giddy:
Today’s Florida district court ruling that the individual mandate is unconstitutional is by far the best court opinion on this issue so far. Judge Roger Vinson provides a thorough and impressive analysis of the federal government’s arguments claiming that the mandate is authorized by the Commerce Clause and the Necessary and Proper Clause, and explains the flaws in each. He had already rejected the government’s claim that the mandate is constitutional because it is a tax in a previous ruling. So far, all three federal courts that have considered the tax argument have rejected it, instead ruling (in my view correctly) that the mandate is a penalty.

This is perhaps the most important of all the anti-mandate lawsuits because the plaintiffs include 26 state governments and the National Federation of Independent Business.


As I have often noted in the past, this decision is just another step in an ongoing legal battle. Ultimately, the issue of the individual mandate will be resolved by the courts of appeals and probably by the Supreme Court. Still, Judge Vinson’s ruling is a victory for opponents of the mandate. It’s also extremely well-written, and thereby provides a potential road map for appellate judges who might be inclined to rule the same way.
In one of the key passages of his ruling, Judge Vinson wrote that "the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be 'proper.'" While Orin Kerr shared Ilya Somin's enthusiasm for the result of the decision, he pointed to this portion of the opinion as a "weak link" which could jeopardize it at the appellate level:
This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomas’s dissent in Raich with Judge Vinson’s opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.

Obviously, I’m not arguing that Judge Vinson was bound by Justice Thomas’s dissent. Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.
In a subsequent post, Kerr elaborated on this criticism:
The core problem, I think, is that Supreme Court doctrine has strayed far from the original meaning of the scope of federal power granted by the Constitution. Today’s constitutional doctrine permits a scope of federal power that is much broader than the original meaning of the Commerce Clause and Necessary and Proper clause would allow. When interpreting the scope of federal power, then, you need to decide what you will follow: The original meaning or case precedents. As I read Judge Vinson’s opinion, he mixes the two. Judge Vinson jumps back and forth between purporting to apply Supreme Court precedents and purporting to interpret the Commerce Clause and Necessary and Proper clause in light of its original meaning. Judge Vinson spends about half of the legal analysis on original meaning and about half of the legal analysis on precedent, and he seems to treat both as important. In the critical passage on the Necessary and Proper clause, on page 62–63, Judge Vinson relies primarily on original meaning, specifically Federalist No. 33.


If you are an originalist, as many [Volokh Conspiracy] readers seem to be, this is a very appealing argument. If you’re a libertarian, as many VC readers seem to be, this is also a very appealing argument. But there’s a technical problem here that I want to draw out: Judge Vinson is only a District Court judge. Under the principle of vertical stare decisis, he is bound by Supreme Court precedent.... And when Supreme Court precedent conflicts with original meaning, Judge Vinson is bound to follow the former. Of course, that doesn’t mean a District Court can’t discuss the original meaning of a constitutional provision in his opinion. But where the original meaning and case precedents conflict, the judge is stuck: Because he is bound by Supreme Court doctrine, the judge has to apply the doctrine established by the Supreme Court and has to ignore the original meaning.
So, to recap: the American healthcare system is screwed-up; the Obamacare law purporting to reform the screwed-up healthcare is screwed-up; the precedents the courts are obliged to use in determining the validity of the screwed-up law reforming the screwed-up system are themselves screwed-up.

But I'm sure it'll all work out to everyone's satisfaction somehow. These things always do.


The world's attention was centered this week on Cairo, where thousands of Egyptians took inspiration from the recent popular revolt in nearby Tunisia to seek the end of President Mubarak's lengthy regime. Reliable information was at times difficult to come by, with the usual chaos of an event like this complicated by the government's near-complete shutdown of the country's internet connections. While major news outlets did a decent job, events often seemed to outstrip their ability to understand, let alone explain. Frankly, for all the Mideast experts the mainstream media trotted-out this past week, one of the best explanations of what was happening in Egypt and why was offered by Antonin Pribetic, who did with the news reports from Egypt what good lawyers do — organize, understand, and explain chaotic and fragmentary information coherently. Jamison Koehler offered a personal perspective on events in Egypt, recalling his own experiences during student protests in 1980s Germany, when troops intervened in what had been a matter handled by riot police:
After the attack, the peaceful demonstrators were quickly replaced by rock-throwing and spray-painting hooligans wearing motorcycle helmets and masks, and the city turned into a war zone.

To the surprise of my friends, who were disgusted by the government’s overreaction to the demonstration and retreated to the safety of their homes, I was completely hooked by this adrenaline-producing experience. Maybe because I was holding a camera and did not run when the troops arrived, I seemed completely immune to any harm: The troops sprinted past me to club other demonstrators. And, although I never threw a stone or lifted a can of spray-paint, I was gradually accepted into the inner group of people who were calling the shots for the demonstrators. Perhaps they too assumed I was a reporter (an American one at that), and wanted the press coverage.

The experience allowed me to witness first-hand an enormous shift in power. The government’s reaction had strengthened the hand of the demonstration’s most radical elements and, by the time the demonstrators had begun to occupy a number of vacant government buildings on the third day, the influence of those advocating peaceful demonstrations had been completely supplanted by the mask-wearing rock-throwers.
Though the outcome of events in Egypt were and remain in flux, some were anticipating and rapidly adjusting to the new status quo — whatever that might be. Charon QC passed along an internal memo prepared by noted (and ostensibly fictional) law firm Muttley Dastardly LLP; the memo outlined "Operation Pharaoh", whereby the firm plans to send a specialist garbed in complete Pharaoh kit and positioned to ensure the firm's success in the "new" Egypt:
The reasoning behind this deployment is straightforward: The less well informed other law firms are about Egypt, the more likely our own offerings to the Government of Egypt, however constituted, will, be. We have been fortunate in being able to take advice from an ex-television station reporter on the traits, knowledge and, most importantly, the dress effected by expert media Egyptologists, to ensure that managing partners of London firms will feel ‘comfortable’ with their decision to take advice from our operative on matters relating to Egypt. At the moment, we are calling our operative Jamie Ramses; the ‘Jamie’ element providing the right class note and, ‘Ramses’ providing that subtle Egypt credibility touch.
On a more serious note, the Boing Boing blog (amongst a few others) mentioned a new report from Human Rights Watch addressing one of the many probable causes of the unrest in Egypt — that "Egyptian President Hosni Mubarak's government effectively condones police abuse by failing to ensure that law enforcement officers who are accused of torture are investigated and criminally prosecuted." Officials turning a blind eye to systematic police misconduct? Police believing that they are effectively above the law? Citizens coming to understand that they may be threatened by crime but they're as likely to be victimized by the police and the "justice" system? For Americans who regularly read these Round Tuit posts and the criminal law and civil rights blogs frequently linked herein, these are themes which will seem all-too-familiar.

Will our discontent with police abuse ever become so widespread and severe that it will contribute to a general uprising like that in Egypt? That's unlikely, but it's certainly not inconceivable that if police act — and are allowed to act — violently toward us, we're going to respond in kind at some point. Some in the police, academia, and media would have us believe that several recent police deaths indicates that there's already a "war on cops" underway; frankly, I think it's more likely that they're projecting, as the evidence of a police "war on the general public" is far more substantial. Radley Balko has been a leading chronicler of the widespread militarization of police and the violence which has characterized the "wars" on gangs, terror, and drugs. This week, he debunked claims made by John Jay College Professor Jon Shane, Salon writer Amy Steinberg, and Texas Sheriff J.B. Smith that there is a trend in police deaths amounting to a "War on Cops":
In truth, on-the-job police fatalities have dropped nearly 50 percent during the last 20 years, even as the total number of cops has doubled. According to the National Law Enforcement Officers Memorial Fund, 279 cops were killed on the job in 1974, the worst year on record. That number steadily decreased to just 116 in 2009. The leading cause of death for cops on duty is car accidents, not violence. For the last several years, the number of officers intentionally killed on the job each year has ranged from 45 to 60, out of about 850,000 cops on the beat. That makes police officers about 50 percent more likely to be intentionally killed than the average American. But contrary to Sheriff Smith's claim, the job isn't among the 10 most dangerous in the country, let alone the "the top five," even if you include officers unintentionally killed in traffic accidents.

As for guns, Salon's Steinberg strangely came to her conclusion about "the pressing need to revisit the conversation on gun control" just a few paragraphs after she noted that gun sales have risen dramatically during the same 20-year period when police officer fatalities have plummeted. Last year there was an increase in officers intentionally killed on the job, from 41 to 58, which Steinberg characterizes this way: "In 2010 policemen killed on the job rose by nearly 40 percent, the greatest increase since 1974." That's true. But isn't it more significant that these numbers have dropped to the point where 17 additional deaths now represents an increase of 40 percent? In any event, 2010 also saw the smallest increase in gun sales in six years.

None of this is meant to denigrate the heroism of police officers who confront and apprehend dangerous people, and we certainly should honor and remember those who are injured or killed while doing so. But seizing on an anomalous series of terrible shootings as evidence of a nonexistent anti-police trend skews the debate on issues such as aggressive police tactics, police militarization, the use of Tasers, searches and pat-downs, and police transparency and accountability. Officer safety is important, but it should not come at the expense of the safety and civil liberties of the people they are sworn to protect.
Scott Greenfield noted that this is not the first time these claims have been shopped-around:
Police are well aware of the power of spin, and have used it well to their advantage over the years in persuading people to respect their authority. There's really nothing wrong with this, as they're promoting their self-interest and making their life, job and situation better. We all do this, whether consciously or not.

But at a time when videos reveals that those we entrust to protect and serve prefer to serve themselves first sometimes raises the stakes. When it was just our word against theirs, and law-abiding citizens would be naturally inclined to stand alongside their men in blue when challenged, the effort to remind us that we're better off calling a cop than a criminal was easy. Maybe we know too much now.

I recently bemoaned the fact that we have become deluged in police misconduct and abuse, and feared that we were becoming desensitized toward wrongdoing. While that concern remains, the counter-effort from John Jay, that hotbed of cop-love propaganda, suggests that the police remain very concerned that people are not becoming inured to police misconduct, but rather growing deeply concerned that the shield may be badly tarnished.

Let the professors from John Jay take to the airwaves and cry about a war on cops that doesn't exist. As long as there are people like Balko to debunk the spin, we'll get past it. In the meantime, maybe our daily dose of police misconduct is opening up minds about the reality on the street of police becoming a law unto themselves, putting both bodies and rights at risk.

The more the police apologists and spin-meisters whine, the more it appears they are afraid that people are seeing the truth behind the blue curtain. If the cops don't like it, then all they need do is clean up their act and demonstrate the respect for others they wrap around themselves whenever a new video of a beating comes out. If the professors at John Jay want to do some good, they could spend more time teaching respect for civil rights and less giving interviews about this non-existent war on cops.
In another post, Greenfield discussed how police department efforts to "clean up their act" by disciplining abusive cops within their ranks isn't as straightforward as it ought to be, owing to labor agreements and the arbitrators who enforce their terms:
Rank and file police officers, or as they're thought of in labor relations terms, a public employee collective bargaining unit, operate under a collective bargaining agreement. It provides for many things, from new shoes to days off to salary.

It prevents them from being questioned about their criminal conduct, whether driving drunk or shooting unarmed people for the hell of it, within a certain period of time following their seizure to having their union representative at their side. It makes the social compact, the "agreement" under which the rest of society operates, look downright tepid.

But what it does, much to the chagrin of those of us who wonder why it is that when we shoot and kill someone, we face the life in prison at best while they get a two week paid vacation, is require that the decision to terminate a police officer because of misconduct be put to binding arbitration or some civil service panel. In other words, it's not the police chief or the public that gets to dictate the outcome.


What distinguishes the [arbitrators] from us is that they lack our focus on cleaning up the mess of abuse and misconduct, saving human beings from the harm, maybe even death, and instead focusing on this as a labor relations issue, a question of comparative discipline between employees.
Walter Olson offered a recent case-in-point from Aurora, Colorado, where the local police chief fired an abusive cop who kneed a handcuffed woman in the face. The woman won a settlement for her injuries; a labor arbitrator awarded the terminated cop his position, with back pay:
So there you have it. Municipal taxpayers get to pay both ways — to defend against allegations that there was excessive force, and that there wasn’t. Public managers are sent the message that it’s unsafe for them to manage. Aurora residents nervous about possible encounters with the local constabulary are given fresh reason to be nervous. Is it any wonder long-overdue reform of government-employee tenure keeps returning to the national agenda?
As Greenfield noted in his post, Aurora's chief had never fired an officer before this; he asked, "Want to bet how long it will be before he [fires] another for misconduct and abuse?"

Odds n Ends Shop

In the United Kingdom as in the United States and Canada, there is considerable attention paid by the mainstream media to legal news and issues. There as here, the reporting of legal issues by non-lawyers tends to be something of a mixed-bag, owing in part to the willingness of "legal experts" to offer soundbites on topics beyond their range of experience or in instances where they have little basis to make an informed assessment. British blogger Nearly Legal recently took issue with the Daily Mail's reporting of a domestic legal matter and suggested that the Mail's legal expert, who appears to have little or no family law experience and a limited knowledge of the facts of the underlying case, did the justice system an injustice. For these transgressions, that expert, Jill Kirby, was placed on Nearly Legal's "Naughty Step":
There is a reliable general rule that anyone quoted in the Daily Mail may be intelligent, honourable or espouse family values, but at the best only two of the three at any given time. However, the nature and billing of this particular comment has already ruled out two of the three options.

While the comment may have been sincerely meant, it would then have to be profoundly uninformed – from a ‘family law expert’. If it is not sincerely meant, then it is mere wind-baggery, such as would make most ‘experts’ blush with shame. If you are reading this, Ms Kirby, do let us know which was the case.

In the meantime, good luck with your new career. Unless that is, your new career consists of continuing to offer rubbish quotes to the Daily Mail as an ‘expert’. You are on the naughty step for adding a veneer of respectability to the Mail’s bile without respect for anyone who may read it or indeed for yourself. Think of this as an an intervention. I want you to be able to be proud of yourself. I want you to be able to say ‘I think X’ and actually mean it - both that this is the conclusion you have come to and that you have engaged in some thought along the way. It will feel good, really.
In an update, Nearly Legal noted that a similarly ill-advised opinion had been offered by one of Ms. Kirby's Centre for Policy Studies colleagues in another newspaper; this prompted Nearly Legal to wonder whether something more sinister might be afoot: "Is this a conspiracy or does the Centre for Policy Studies have a superfluity of such wind bags?" Charon QC suggested that the poor reporting by the Daily Mail and the Centre for Policy Studies' "experts" are but another example of a larger, more troubling trend of sensational and inaccurate legal reporting in the mainstream media:
Unfortunately for the media, in the matter of law, if we are to have a credible rule of law of any meaning, it is important that law and legal events, judgments and the like, are reported accurately and fairly. One could add to this the old fashioned concept of responsible reporting. The disgraceful coverage of the Yeates murder case and the smearing of the reputation of the landlord – who, presumably, will be cleared and released from police bail soon, given that the police have found another suspect to arrest? – is illustrative of a creeping modern trend.

It is bad enough when journalists, many without any formal legal training, misreport on the law – but when weight is added by so called pundits and experts to an erroneous report, the offence to accurate and fair reporting is compounded. When those experts are lawyers – it is, frankly, unacceptable.
Perhaps on both sides of the Atlantic, slapdash reporters and their pet legal experts need a kick in the pants (once they get off the Naughty Step, that is). A kick in the pants can do wonders, as Eric Mayer has learned:
I don’t remember the Mr. Nice bosses I’ve had. They were flaccid and ineffectual, and nothing remarkable came from their safe leadership. I do remember the ones who put a boot in my ass on occasion.

I needed it. I admit. Like most humans, I have a predisposition to being a lazy procrastinator.


For those of us who choose to depart from the world of oversight, the seeking of an occasional kick in the pants must come from within. It hurts to read about somebody who is doing something for a client that we should do, but aren’t doing. We feel like crap (or, we should). We must force ourselves to hear about people who do this job better than us, and we must hear the voices of those who demand accountability among our profession–regardless of the hit to our emotions or ego.

When you get pissed off because of criticism, get pissed off at yourself, not at the person delivering it. Get pissed off because of the time wasted on inconsequential bullshit when it could have been used on people paying you to save their life. Get pissed off when you realize that a bit more legal research could have suppressed that confession. Get pissed off when you fail to achieve the standards that people need you to achieve. You know you’re wrong. We are all wrong at some point. The question is, are you capable of catching yourself being wrong or accepting others calling you out for it?

Why the rant? Here lately, all of my new clients want my help to correct previous legal actions. They need the help because their previous attorney at court-martial or administrative proceeding screwed them. Rather than taking the harder steps, the lawyer sought the easier slide. Battles that should have been fought were bargained. In some cases, they were told that fighting would only delay the inevitable. It makes me sick.
While Mayer's "boot in the ass" is largely metaphorical, Mike Cernovich recommended actual physical conflict. Discussing a few of the lessons in the well-known novel and movie Fight Club, Cernovich wrote that we should "go start a fight":
In the United States, there is a unifying culture - a national motto. It works to the advantage of criminals on Wall Street and government. It allows political insiders to loot and rape with impunity. The national motto has even achieved a moral status, with those rejecting it facing judgment from those who treat it as the First Commandment.

"I do not want any trouble."

People pass through the streets anonymous and terrified of confrontation. When I confront someone for cutting in line, my companions invariably tell me that I've embarrassed them. Or that I'm going to be shot. They, being slaves and supplicants, never consider that it's the other guy who should be worried about me.

"Please, please, please just mutter under your breath. We will whisper to one another about this breach of the social contract. We will not talk loudly enough for our voices to be heard. We don't want any trouble.

Well, fuck you all. I want trouble.


Fighting is never pointless, as its goal is the training of fighters. "In the mountains of truth you will never climb in vain: either you will get up higher today or you will exercise your strength so as to be able to get up higher tomorrow."

Today in the United States, there are many things worth fighting for. Wall Street bankers have stolen your money. TSA officials list sexual assault as resume bullet point. The United States government wants an Internet kill switch, silencing all who would dissent

There are many fights, but there are no fighters. You are not ready. There is only one way to prepare for a fight, and that is to start one.
Mirriam Seddiq, who can match Mike Cernovich or anyone else on Earth four-letters-word for four-letters-word, took his words to heart and considered the value of struggle:
Ever since Mike at Crime & Federalism wrote about raring for fights and Fight Club (one of my favorite books). I told him that sometimes it's hard to find a good fight, and even the fight with yourself just doesn't seem worthwhile. Mike wrote another post about running up a steep hill. Well, it's more than that. But you should go and read it for yourself because the premise is that a fight with yourself is always worthwhile. It is what muslims call the greater jihad. It's the one within yourself, the one with temptations of the world and what you know is good for you versus what you want despite how it might affect your humanity - KFC versus a home cooked piece of chicken from the farmer's market, or smoking that cigarette vs. going for a run, or being faithful to your wife instead of fucking your 24 year old secretary. You get it, right?

So Mike writes the posts and I think about them. That's what good writing does to you, it is supposed to make you think, and not just think "wow, what a good piece of writing" but the written word actually makes an impact on your brain and maybe on your actions in the future.


In 2008 when my boys were 14 months old I ran a marathon. Honestly, 'run' might be an exaggeration, but I completed it. While I was training all I kept thinking is "I was on bedrest for 16 weeks, I had twins, this is nothing." Now, when I think of trying to make it, to build a business and do right by clients at the same time I think "I couldn't have kids and I did, I can do this."

So yeah, that's it. Today I signed a lease on a bigger office in my same little office building. It's not much bigger and it's not much more expensive, but I'm outgrowing my current teeny office. I'll bring my little coffee pot upstairs with me and while I'm not so sure what the next year - fuck it, I don't know what the next week will bring, I'm going to keep on keeping on. Because Mike is right, the fight with yourself is always worthwhile.
Fights worth fighting are never in short supply; if, as Cernovich and Seddiq suggest, even the fights not worth fighting are still of worth, the supply is greater still. For the many who, like me, have sought to get along whatever the cost, it may just be that we've not yet understood how high that cost truly is. In Egypt this week, thousands of people with everything to lose demonstrated that getting along only gets you so far. The day may come when we too need to fight. If we can accept that possibility — even if we're not yet willing to call it a likelihood just yet — it makes sense to prepare ourselves while we have the time and opportunity to do so.

Finally, to digress for a moment, let me admit that I'm not a religious person generally — and what religious sympathies I have aren't for any flavor of Christian faith — but I do have an abiding love for the language of the King James Bible. In places it's pretty compelling stuff and parts of it are pure poetry. That being said, my readings are superficial ones which appreciate language without really internalizing meaning; still, as with any good book (lower case there), some passages remain in memory more than others.

For me, Psalm 119 is such a passage. When Antonin Pribetic composed (in response to a Scott Greenfield post) a "Law and Justice Version" of Psalm 119... well, let's just say that if I had a physical copy of the Bible, I'd replace its Psalm 119 with his. As I don't have a Bible, I'll have to be content with cross-stitching it on a sampler and keeping it in a place of honor in my Hello Kitty hope chest. To excerpt parts of it here and there would be a sacrilege. This is simply the best post I read this week; please go and read it in its entirety. Peace be with you.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., The Wall Street Journal, IdahoStatesman.com, and Paris Odds n Ends Thrift Store.

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