08 January 2019

Today In The Courts

* A unanimous Ninth Circuit panel has held that federal statute prohibiting the possession of firearms by an alien unlawfully present in the United States withstands constitutional scrutiny and is a valid exercise of Congress’s authority. It is important to note that the fact that the statute was federal is important, because the federal government has the exclusive power to regulate immigration. A similar state statute would probably be unconstitutional on federalism grounds. The argument that the Second Amendment right extended to all persons regardless of citizenship status wasn't frivolous, as most of the protections of the Bill of Rights apply to all persons without regard to citizenship status, but the Second Amendment's reference to a "well regulated" militia means that reasonable regulation of Second Amendment rights is allowed and this regulation was found to be a reasonable one.

* The U.S. Supreme Court has held that the Federal Arbitration Act allows the determination of whether a dispute is subject to arbitration in a contract to be allocated to an arbitrator in an arbitration clause and that no exception that that rule exists even if the claim that the dispute is subject to arbitration is clearly groundless. This opinion for a unanimous court in Henry Schein, Inc. v. Archer & White Sales, Inc. is one of the first from Justice Brett M. Kavanaugh. This continues a long line of case in which arbitration clauses have been upheld in the face of low court efforts to narrow their scope and effect.

* U.S. Supreme Court Justice Clarence Thomas delivered an opinion for a unanimous Court in Culbertson v. Berryhill, holding that the 25% of recovery statutory cap on attorneys' fees in Social Security benefits cases applies to two different reasons that attorneys' fees can be awarded by statute separately, rather than capping the combined total of two kind of attorneys' fees that can be awarded under the statute. This effectively doubles the maximum amount of attorneys' fees that may be awarded in Social Security benefits litigation. This technical decision is contrary to prevailing wisdom about how the cap applied (and is probably also contrary to legislative intent), and flows from poor drafting in the statute. The cap is quite restrictive, making these cases unattractive to lawyers and the new rule will make such cases more attractive to lawyers, but at the cost of leaving beneficiaries with a reduced share of already modest benefits in many cases.


neo said...

what do you think of law students and law schools and student loan debt today?

other than the very top law schools like harvard yale, i've heard law school is a rip off, to many lawyers and huge student loans

andrew said...

There are huge student loans (it took me 20 years to pay off mine), but it isn't a ripoff to anyone who manages to pass the bar exam. It is a ripoff to people who don't graduate from law school or who graduate from law school but don't pass the bar exam.

Most lawyers have liberal arts degrees, e.g. in English or government, and aren't great at math, and would make far less money as a non-lawyer than they do as a lawyer.

Lawyers have a bimodal income distribution. Basically, those who start out in "BigLaw" make very good money very early on, and that is a substantial chunk of lawyers and not just those who went to the top schools, also those in the top of their classes at less top schools. Those who don't enter Big Law make much less money, but have more balanced lives and still usually make much more than they could have doing anything else.

There are systemic problems with having three years of law school following an undergraduate degree, rather than making it a professional undergraduate degree, especially for women who sacrifice an immense amount economically to have children just as they are working towards law firm partner. And, the profession of lawyer is probably too broad and generalized which means more education which means fewer lawyers and higher legal fees. But, law school is probably in better shape than medical school which is failed to add capacity as demand has surged.

neo said...

on youtube and authors like aaron clearly, warn of law school as a mistake, along the lines of too many lawyers, too many law school, not enough jobs, too much student loan debt. one law student said her student debt was over $200k.

in the news a law student is suing but lost her law school as she has a law degree and passed the bar but she got zero job offers and over $100k in student loan. it's in the news, i think thomas jefferson was the law school. sounds like a true horror story

yes aaron clearly and others say law school is for women studies majors and other "worthless" majors.

so what made you decide law school over engineering, IT or even medical school?
aaron clearly says that is the very best major to have.

if you're good at high level math, why not study something lucrative like engineering that takes makes use of a very rare and highly in demand intelligence

have you heard of aaron clearly and, for that matter, allan bloom and the closing of the american mind? i've read both books.

andrew said...

Thomas Jefferson and half a dozen other laws schools (mostly for profit or very recently formed) are very bad, and are admitting people who have no reasonable prospects of passing the bar and then charging them huge tuition bills financed with student loans that students have difficulty repaying because they are not lawyers. I have several posts here about that issue and about what you need to be able to do to become a successful lawyer. Some of them have been shut down.

But, the notion that there are too many lawyers, too many law schools, not enough jobs, and too much student loan debt, while it impacts people at the bottom of the barrel for the most part greatly overstates the issue. Probably 85%-90% at a legitimate non-top tier law school that isn't at the very bottom and probably 95% of people at top law schools do just fine, and maybe 30% of people at top law schools and 5% at non-top tier law schools do extremely well. It also helps to know more about the industry and the world of business and of affluent people than I did going in - I had no experience with what it was to be lawyer at all. Few lawyers who pass the bar spend any significant time unemployed and almost all make more than they would have if they had gone into the labor force with their undergraduate degrees directly. Those who don't receive an economic return mostly do so because they take time off to raise kids which extracts a very high economic price.

I was a math major (and something of a prodigy at that, I taught myself Geometry, Precalculus, three semesters of Calculus, Linear Algebra, and Discrete math from textbooks alone in High School plus a semester of financial accounting and a semester of managerial accounting) and came close to, but didn't get a physics minor. I decided on law school on something of a whim. A buddy in a government class in my final year of college told me that tomorrow was the deadline to sign up for the LSATs, i thought "no prerequisites and I hear lawyers can make money" and I did it and got into a top ten law school (University of Michigan). I was very good at math, but not PhD in math good. If I hadn't gone to law school Operations Research and becoming an Actuary were high on the list, and I also took the GREs (did very well) and was starting to apply to PhD programs in economics when my wife became pregnant with our first child while I was at my first real job as a lawyer, and I decided that life as grad student was no way to raise a kid. If I were doing it again, I'd probably choose an academic PhD over a J.D., but only for reasons ideosyncratic to me that make me very at home in academia and less of a personality fit to being a lawyer which is sort of like being a superbureaucrat (something that I didn't understand at the time).

andrew said...

I truly like what I learned in law school (and in private practice) and perhaps I should have made more of an effort to be a law professor (which I was for a couple of years). It is probably more worthwhile than what I would have learned in an academic economics program. I know much more about how the economy really works than the vast majority of economists and MBAs. But, a lot of being a lawyer is coming over hundreds of pages of corporate documents for fine details that usually won't end up mattering, or finding needles in haystacks of literal rooms full of paper in commercial litigation. Anyone who tells you that is lots of fun is probably lying. Dealing with unhappy angry people a lot of the time can also be a pain.

Medical school was never an option. I passed out at least once every year in health class growing up. I still get queezy and have to stop sometimes in my own personal doctor's visits or when I'm handling a case with personal injury aspects.

I wasn't interested in engineering at age 18, and you have to start early and honestly, I wouldn't want to do it now, I'm too interested in the problems facing human beings relative to just stuff.

Law also has more potential at the high end than engineering, even though it also has much more of a low range potential.

I'm familiar with both of the books that they reference. But, I have not read either cover to cover. Not my faves.