Twelve Common Misconceptions About The Law

1. All laws are crimes. 

The law regulates lots of conduct that is not punishable by incarceration or a punitive criminal fine. Lots of laws, instead, make one person responsible for paying damages to another person if their rights of violated. For example, broken promises are almost never crimes. Other laws, like property and inheritance laws, define people's rights in the absence of misconduct. 

2. Statements from interested parties aren't proof. 

Sworn testimony from anyone, even someone with an interest in a case, is proof. Many cases in the U.S. are decided based upon sworn testimony from a single witness without any corroboration. 

3. The law is deterministic. 

Many people believe that the law establishes one right answer that is, in theory at least, knowable if you know all the facts. But, in reality, in many areas of the law, there are "standards" that provide broad, non-fact specific guidance on how to resolve legal disputes that have to be applied on a case-by-case basis. For example, it is not possible to know in advance how a claim to recover damages for "negligence" will be decided, or which spouse will get what property, in advance, in close cases, even if you know all the facts. The law is more like quantum mechanics, where the true state of a system isn't knowable until it is observed and is uncertain, than it is like classical physics. 

4. Judges are umpires. 

Judges have considerable discretion in decision-making. Often, there are multiple outcomes which a judge could legally determine which would be upheld on appeal. There is considerable room for a judge's worldview, norms, biases, and preferences to influence a judge's decision. This is also true, to a lesser extent, for juries. 

5. Words always mean the same thing. 

In the law, the meaning of words, including legal terms of art, is context specific. A word can mean one thing in one statute, a different thing in another statute, and a third thing when used in a particular way in a particular contract. Even in contracts, the same words don't always mean the same thing in every contract. 

6. The law is universal. 

The law is different in different places. The law in Ohio or France is not necessary the same as the law in Michigan or England. Even in a single place, the law is constantly changing as appellate courts make new legal precedents, legislators pass new laws, and government officials adopt new regulations.

7. All laws are statutes.

In the U.S., we have what is called a "common law" legal system, which means that many areas of law are governed by court decisions in areas where they have no statutory guidance. Many laws are also subject to regulations and other binding executive branch legal determinations.

8. The correct law to apply to an event is clear. 

Particularly in contexts like interactions on the Internet, there are multiple plausible place's laws that could apply to a case. You often can't know in advance which place's law will apply and the law that applies to a situation could be different for different issues in the same case. Sometimes the laws of multiple law makers apply simultaneously, for example, when you must obey both federal law and state law at the same time. There is also often not just one court or tribunal where a legal issue can be tried. 

9. Evidence presented at a trial can be corrected or supplemented later. 

In U.S. law, once all evidence and arguments are presented at a trial, this is, to a draconian extent that can only rarely be corrected, all that you can say about a case. Once a trial is over, you can't go back and provide more evidence, or correct errors in the testimony that was presented. In many kinds of cases, you must finally determine which evidence you will or will not use at trial well in advance of the trial itself and can't even supplement it at trial because you realize that some other evidence would have been helpful to present. Likewise, usually, you can't raise new legal argument on an appeal that you failed to make at trial. 

10. An appeal can correct any error made at trial. 

In U.S. law, trial court decisions are mainly subject to appeal only if the court decides a legal issue that was presented to it at trial incorrectly in a way that influenced the outcome of the case. Mistakes made by a trial court about the facts can be corrected on appeal only if they are extreme and the facts that were actually presented at trial were almost completely contrary to how the court ruled. 

11. Every wrong has a meaningful legal remedy.

Many things which are a morally wrong, or even violate a clearly stated law, can't be remedied legally. Sometimes a statute of limitations bars relief. Sometimes no one has enough of a personalized interest that is harmed by the law to bring a lawsuit to enforce it. Some laws simply state a legal principle without having any penalty attached (like adultery in Colorado for decades before it was finally removed from the law books). Other times only partial compensation or relief is possible, or legal remedies exist but they are so costly to utilize that any benefit you might receive is outweighed by the cost of enforcing your rights.

12. Talking to people isn't billable legal work. 

A huge share of the work done by lawyers is talking to their clients, talking to other lawyers and staff in their own law firms, talking to other lawyers, and talking to other people related to the case. A phone call with a client is almost always billable legal work. So is an office conference with another lawyer or staff person in the law firm. Billable legal work is not only final transactional documents produced, documents filed in court, or appearances in court. The behind the scenes analysis and discussion of your legal issues by a lawyer is frequently the most valuable part of the services that a lawyer provides. In a related point, lawyers don't, and aren't expected to, know all of the relevant law from memory. Legal research is routinely part of the work provided by a lawyer.

Fall Cleaning

Turning A Corner

As an adult who isn't a student or working in the education fields or a farmer or fisherman or construction worker or tourism industry worker, my work projects often last more than the nine months of the school year, and more importantly, there is never a time, even briefly, when all of your projects are completely finished before a new set of projects begin. But, the school year still defines the life of a parent, even when your kids are in college far away from home. The new school year is as close as one gets to a new clean slate beginning in middle age.

My son and daughter are ensconced in their college dorm rooms in New England for the year, my two nieces are beginning the 6th grade years in school, and my nephew is no doubt breathing a sigh of relief at having his very chatty sister out of his hair during the day as he continues at the grindstone of home schooling in his eighth grade equivalent year doing so. I am done traveling until Thanksgiving after trips to Greece for a 25th wedding anniversary trip and a trip to Providence to get my son settled into school, although my dear wife will be jet setting on a couple of trips before then, seeing family, this fall.

Fall Cleaning and an MS Word Rant

After two decades with kids at home, it is amazing how easy it is to be uncluttered when they are both gone. And, clearing out the clutter is a nice way to quietly recognize a new phase in life. 

In fairness, my fairly conscientious kids, with not a little nagging, also did a lot to get their own rooms and the house, in general, in order before they left and purged a fair share of their own obsolete junk in addition to what they took with them in my daughter's full sized SUV filled to the gills with two kids worth of stuff to move into their college dorm rooms. The lawn got mowed at the very last moment, the house was well vacuumed, pictures that had been displaced from painting work got hung, and so on. 

The task was already half done after frantic efforts to get the house in order for a high school graduation party with lots of out of town guests and reorganizations needed for some home repairs and minor upgrades (all intended to be finished before graduation, but some of which took well into the summer).

The last of these tasks, which I hope to make a dent into this evening when its not 98º with the sun beating down and no wind, and perhaps finish next weekend, is to clear various kinds of landscaping and camping and sports stuff out of my garage (designed with the 1920s and 1930s cars in use when it was built in mind), so I can squeeze the car my son left behind in there until he returns for winter break, so I don't have to get tickets if I forget to move it on street sweeping days or for leaving a car idle parked on the street longer than allowed by law.

It's not just physical clutter either. I used dead time while traveling to and from Rhode Island to update software, delete space hogging files and applications that I don't need, put electronic files in the proper folders, etc.

I also took a shot at making the style sheet in the default document on my version of Microsoft Word closer to my standards which I must always redo from scratch with each fresh document not recycled from a previous one. It is surprising hard to do that in a system that is so focused on styles and maximizing opportunities for user customization. I want fewer options easily available for my daily work. I would be happy to go through extra clicks to consider fonts and colors and other formatting options I never use, for example. Ideally, formatting options never used for a long period of time would automatically default to a background status that would require extra clicks to use so as to reduce clutter in the user interface. Likewise, I wish it were easier to make style functions that I do use more prominent (e.g. superscript, subscripts, Greek and mathematical and typographical characters). The fact that Microsoft doesn't do these things reflects poorly on their corporate culture. The fact that third-parties don't offer software that resets defaults to better standard sets likewise reflects poorly on the domestic IT industry culture (whatever the cause of that may be).

While strictly coincidental, two years after the building was purchased, after sixteen months of renovations before we could move in featuring delays in getting permits and construction delays, and eight more months in occupancy, the punch list items from the construction are now almost done and my building where I have my new office is finally very presentable. The outside looks complete now, and we're getting ready to clear out the last office stuff and construction materials out of our garage at work so we can use that in the winter. Now, if we can just get our industrial sized copier, printer, scanner, fax machine to work for more than a week without needing repairs . . . . Law offices use a lot less paper and snail mail far fewer things than we used to, be we aren't entirely weaned from that yet.

Mission Accomplished

Our nest is empty. 

In some ways, it is time to say "mission accomplished" in the parenting department. My children are both adults (although, for some perverse reason, there are only a handful of motels and hotels in Boston that are willing to rent rooms to adults under the age of twenty-one, let alone rent cars to them). They got into good colleges that they will be able to attend student loan debt free when they attain their undergraduate degrees. My oldest will graduate in the fall after three years with a major in environmental science and a minor in managerial economics and will turn twenty one a month later. My son may someday find out what he wants to do with his life. Or not. They've both had serious significant others for extended periods of time, who may or may not be around for the long haul. They are capable of surviving with only minimal assistance at this point and even if both my wife and I passed suddenly in some accident, they'd have each other, extended family on both sides, and many friends to turn to for support, as well as a modest inheritance and a substantial sum in the form of term life insurance payouts to provide (realistically) more financial support than we would have provided to them and their families over the next several decades of our lives.

According to sources cited by Malcolm Gladwell in his book "Outliers", most of the economic boost that the children of people with high socio-economic status and affluence receive in life comes not from inheritances received when their parents die or large lifetime gifts during their lifetimes, but from the human capital and education that they acquire from their parents grown up and in their early twenties. Some of that goes all of the way back to genetics and pre-natal good health they have received before they are born. More comes from good parenting, great opportunities, and most importantly, a lack of severe deprivation, neglect or abuse (what J.D. Vance in his memoir the "Hillbilly Elegies" refers to by the psychologist and social worker's terminology of "Aces" which stands for "adverse childhood experiences") growing up. A bit comes from opportunities to attend the right college and universities and the connections that they can benefit from on the eve of and at the very dawn of their careers.

Obviously, parents are not irrelevant even in adult life and grandparents can pass on benefits to their children and grandchildren, although my sense is that this contribution has been greatly diminished as of the early 21st century and also is a role that can be filled quite adequately by someone who isn't a blood relative if need be.

Refocusing

So, with all of these changes, and the mission of parenting, if not actually fully accomplished, at least greatly diminished, the time has come to consider where to refocus my efforts and what goals to give greater emphasis.

For example, one of my wife's goals was to get everyone to compete in an athletic competition this year - something that she and the kids have already done, and now I'm signed up for my own baby step, a one mile race while she runs a 10K, in a few weeks.

It is time to contemplate, reconsider, reinvent, and redirect. And, the quiet discipline of "fall cleaning" is a good way to let that cauldron of decision-making simmer in my unconscious background, with mental resources not diverted to other tasks.

Before There Was Federal Rule of Evidence 612 . . .

Federal Rule of Evidence 612 governs the permissible means of refreshing the recollection of someone on the witness stand in a court proceedings. But, before Rule 612 was adopted, the Romans had a somewhat different approach:

During Roman time, in court, a witness would be pulled by the ear by a person saying "memento!" to help the witness to remember what happened better.

From here.

Emoji's In Court

It is common these days for conversations via text messaging or similar means to contain emojis. Indeed, 30% of all cases in all time, in which emojis have been discussed in judicial opinions occurred in 2018. But, while they can add important content to a message, their meaning is not as settled as ordinary words and can be more context dependent than many words.

In these cases, explaining the true meaning of a message containing an emoji can be important for interpreting the meaning of the entire message. Not only can they add content themselves, they can also modify the meaning of the text portion of a message, conveying, for example, if the message is meant sincerely or in jest.

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.

Why Don't Lawyers Cite To Relevant Precedents?

A new study reports that judges and their law clerk's often locate outcome relevant case law that is not cited to by the lawyers in the cases before them.

The article discussing it surmises that this is because lawyers are bad at finding case law. But, the example cited (when prosecutors didn't mention a case that caused a motion to be decided against it) and common sense, suggests that incompetence is not the only, and perhaps not even the primary, reason that lawyers don't cite to relevant cases.

The other obvious, but not mentioned, reason, is that often at least one of the side's lawyers do find a case, but don't cite to it because it doesn't support their client's position. Sometimes both sides may even decide that they won't cite to a case that is relevant because the case has statements that are harmful in one way to one side, and in another way to another side, and lawyers want cases that more purely support their client's positions.

In my own experience, judges and law clerks do find novel case law that was not located by either of the parties about one time in ten, but relevant (but not necessary controlling) case law is omitted in perhaps one out of three briefs written by a lawyer (although less often intentionally by both lawyers briefing the same issue in a case).

Word of the Day: Elisor

An Elisor is basically a bailiff, sheriff, or coroner serving on a contract basis in a manner somewhat analogous to a special master. It also includes a clerk of court appointed by the Court to execute deed or document on behalf of someone else.

In Rhetoric, Less Is More

It is frighteningly hard to do, especially if you are a lawyer who is often penalized for leaving things out, but rarely penalized for saying too little. But, it remains the case that there is great power in keeping your message short.

Avoid Using "Garnishee" As A Verb

A "Writ of Garnishment" is the legal means by which a creditor forces someone who owes a debtor something to pay it to the creditor instead. Usually, a writ of garnishment is directed to a bank or employer and designed to secure a debtor's bank account or wages.

Some people say that one can "garnish" the wages. Others prefer to say that one can "garnishee" the wages (a verb usage). The word "garnishee" is also used to refer to the person, usually a bank or employer, upon whom a writ of garnishment is served by the creditor (a noun usage).

The noun usage of the word "garnishee" is widely accepted and is used in Colorado's state judicial system sanctioned forms. The verb usage of the word "garnishee" is a decidedly minority usage (disfavored by a margin of 675-11 in one computerized legal research search, with one citation implying that "garnishee" is incorrect), that should be avoided.

Noted law professor and blogger Eugene Volokh has some good insights on teaching usage and pronunciation generally in an recent essay on the subject, which closely tracks my own views on good grammar pedagogy.

The New Lawyer Pay Divide

Some newly minted lawyers are paid very well. Another cluster are paid rather poorly. There is a dearth of new lawyers in the middle (annual pay from about $65,000 to $125,000 a year):

Half of the graduates make less than the $62,000 per year median--but remarkably, there is no clustering there. Over a quarter (27.5%) make between $40k-$55k per year, and another quarter (27.8%) have an annual salary of $100K plus.

If the chart were a flipbook of the last twenty years, the first mode would be relatively stationary, barely tracking inflation, while the second mode would be moving quickly to the right--i.e., the salary wars. In fact, because of the recent jump to $160K in the major markets, the second mode has already moved even more to the right.

A well done graphic displays the situation.

The law blogger posting this analysis notes that:

There is a lot of commodity corporate legal work on there; why not bow out of the salary wars, ratchet down the hours to 1800, take work on a flat fee arrangement, focus on better/faster service (thus increasing margins on the flat fees), and literally feast on the human capital willing to take a job in the "death valley" range (i.e., ~$80,000 per year), especially if the hours are sane. The client gets quality and cost predictability, and the well-managed firm can make a lot of money. This is a great opportunity for a firm willing to rethink its business model.

I couldn't bear to work in a law factory like that, but I can see how many people would enjoy it.

Mixed Feelings About The FLSA

It may be Memorial Day, but my thoughts are currently more in a Labor Day mode.

The Fair Labor Standards Act primarily sets the federal minimum wage and imposes overtime requirements on "non-exempt" employees.

FLSA cases tend to be small

The Department of Labor pursues some of the most serious cases it can locate, usually in an effort to change the customary practices of an industry or a large employer.

In several recent years (before new regulations under the FLSA) the number of actions (and the number of employees impacted) has been as follows:

2003 - 29,425 (342,358)
2002 - 40,264 (263,593)
2001 - 31,772 (195,257)

Average number of employees per action:

2003 - 12
2002 - 7
2001 - 6

Average back wages per employee (per action):

2003 - $621 ($7,222)
2002 - $666 ($4,361)
2001 - $569 ($3,497)

Average civil penalties as a percentage of back wages awarded:

2003 - 1.5%
2002 - 1.3%
2001 - 2.7%

Of course, most of these cases would not be cost effective for private attorneys to pursue. There is a private cause of action under the FLSA, and a win can provide attorneys fees awards, but in a private action there is also a risk of a less than the anticipated outcome, such as an attorneys' fees award for an amount less than actually earned on a billable hour and expenses basis.

The largest half a dozen settlements over the past few years (involving millions or tens of millions of dollars), largely involve misclassifications of low level employees who are called managers as exempt rather than non-exempt for overtime purposes at major franchises or national companies.

Most FLSA actions involve agricultural workers, day wcare workers, restaurant workers, garment manufacturing workers, private security guards, health care workers, hotel and motel workers, janitors, and temporary help.

A good share of the actions have roots in overtime regulations that are not always clear regarding how an employee is classified, coupled with employers taking aggressive stances knowning that the consequences of getting it wrong are modest.

The Economic Impact of the FLSA

Something on the order of 90-160 million U.S. workers are non-exempt, and the vast majority make well above the minimum wage (since the minimum wage is so low), so overtime is the only major benefit that they receive from the FLSA.

Since overtime is simply 1.5 times base pay, and the FLSA does not regulate base pay, any employer who wants employees to work more than 40 hours a week on a predictable basis can control total compensation to the employee simply by adjusting base pay. Employers who pay a base rate more than 1.5 times the minimum wage are capable of restructuring their affairs to avoid the economic impact of overtime entirely.

Overtime only has mandatory economic effect that can not be eliminated by juggling base pay based upon hours worked, for employers who pay less than 1.5 times the minimum wage and have employee who work more than 40 hours a week. This group of employees turns out to be quite small, perhaps because low wage jobs have been structured to avoid any risk of overtime pay. Suggestive of this fact is the knowledge that in 2005, about 1% of workers who worked full time or overtime were paid no more than the minimum wage (and some were tipped employees who actually made quite a bit more after tips). In contrast, about 6% of part-time employees (less than 35 hours a week) made the minimum wage or less. In raw numbers, there were 67,000 workers paid overtime who were paid minimum wage or less in 2005, of whom about three-quarters were tipped employees, out of 75.6 million hourly employees for the nation as a whole in the same data set.

The FLSA's tendency to encourage employers to fashion low hourly wage jobs as part-time also tends to give workers, like teenagers and people working "second jobs" for their families, who have the luxury of being able to work part-time and survive economically an edge in the labor market over those people who need to have a full time job to get by, possibly increasing unemployment for low skilled primary breadwinners. (Although, teen employment, in a long term trend, is at record lows, with only about one in three teens working, compared to almost half a few decades ago).

The FLSA is a bit like the laws which prohibit discrimination on various prohibited grounds in hiring (as opposed to wrongful termination and failure to promote for discriminatory reason). Enforcement is absolutely anemic, and is hardly enough to overcome major economic opposition to its policies. But compliance has a negligible negative economic effect (other than the costs of figuring out the law itself) on employers, and establishes social norms that probably have far greater effects than the legal rights established by the laws themselves.

I'm not entirely sure that the norms created by FLSA overtime rules help those whom it is designed to help at a macroeconomic level. Despite the fact that it is easy to pay overtime without increasing overall payroll, employers do tend to avoid employing rank and file workers more than forty hours a week in practice, while the norm for managerial and professional employees who are exempt is far greater, probably on the order 50-70 hours a week. More hours means, on average, greater productivity per employee, and greater productivity per employee means, on average in a competitive market for the services an employee offers, greater compensation.

Thus, the exemption for managerial and professional employees leverages even modest per hour differences in productivity between exempt and non-exempt employees into big differences in productivity per employee. This, in turn, may be an important reason why there are meaningful social class divideds in the U.S., rather than merely gradual gradations. A 25%-50% difference in hours worked can greatly amplify the effect of even a dollar or two difference in productivity per hour.

An employee making $14 an hour will earn $28,000 a year working full time at 40 hours a week. If that employee is equally productive and works 60 hours a week and is classified as exempt, a $42,000 a year salary will have the same economic impact on the employer and will create less fuss, since there is no need to keep track of hours and there are two-thirds as many employees to manage, so there may be room to pay the salaried employee even a little more than that amount, perhaps by matching 401(k) contributions of the salaried employee to some extent. This is the difference between a working class life and a middle class life.

If, in fact, the hourly employee's productivity gives rise to a $13 per hour rate of pay, while the exempt employee's productivity gives rise to a $15 per hour rate of pay, the non-exempt employee may make $26,000 per year, and the exempt employee may make more than $45,000 per year and probably a few extra benefits as well.

It isn't that non-exempt workers a lazy. They simply have employers reluctant to put them to work for the kind of hours that they do exempt employees, and as a result, non-exempt workers produce less per year (indeed, non-exempt workers frequently have productivity that is more obviously a function of hours worked than exempt workers).

The tendency of employers to honor the forty hour a week expectations for hourly workers also leads to the greater frequency with which working class families have bread winners who work two or three jobs. Yet, working multiple jobs generally doesn't produce overtime pay. Instead, someone who works two jobs usually earns less per hour at their "second" job than they do at their first one, essentially earning negative overtime pay, and must endure a more complicated life as a result of juggling more than one work schedule.

The forty hour week for non-exempt employees may also help explain why self-employed constructive and maintenance contractors like plumbers and carpenters are often economically comfortable compared to employees in big companies and government agencies doing comparably skilled work.

The fact that employers tend to structure jobs that require only a high school education as hourly, while structuring jobs that call for college educations as managerial or professional, a division more or less embedded in the FLSA regulations, which look to education as a key factor in a "professional" designation, also impacts how employees are managed. The route of least resistance for a work place that has hourly employees under the FLSA is to micromanage work hours and breaks in a way that can manifest itself as a paternalistic lack of trust that can be socially demeaning. A salaried workplace, in contrast, almost necessitates a more hands off management style that implicitly trusts the worker. This puts one more brick in the wall of class separation between the working class and the middle class.

Overtime, ironically, is one employee benefit that economically rational people stuggle to be denied.

Limitations

This post isn't an economics journal article and includes only intuition, not econometric estimates, although I have no doubt that there is a whole literature out there that attempts to quantify these amounts and, in all likelihood, not much consensus within that literature.

But there is real reason to wonder if the FLSA doesn't contribute to, rather than mitigating, the serious problem of the social class divide in the United States.

Why Lawyers Shouldn't Skip Science

-Breyer: All animals in the park. No animals in the park doesn't necessarily apply to a pet oyster, OK. And so ...

-Unidentified voice: "Well, it's not an animal."

-Breyer. "Thank you. An oyster in my course in biology is an animal, all right. Maybe in yours it was a rock, or a vegetable or a mineral."

From here.

Legal Writing

Brian J. Paul has an excellent article on the impure legal writing style of some of the leading judges of our day, such a Posner and Easterbrook in the 7th Circuit.

Non-Compete Agreements Bad For Economy

Colorado allows non-competition agreements, but significantly restricts their availability. Like most states, Colorado requires the duration, geographic scope and competitive market definition's scope be reasonable. Furthermore, in Colorado, unlike many states, non-competition agreements are allowed only in business sales, to protect trade secrets, to cover the cost of training an employee in the first two years, and for certain managers and "employees who constitute professional staff to" management (a term largely left to juries for definition) pursuant to Section 8-2-113 of the Colorado Revised Statutes.

These restrictions on non-competition clauses may have helped Colorado's high technology economy significantly. Techdirt (via Eric Goldman's blog) notes that on a macroeconomic level non-competition clauses "do more harm than good."

My interest in the specifics of noncompetes was kicked off by a small part of David Levine and Michele Boldrin's book Against Intellectual Monopoly, where they discuss how the lack of noncompetes helped Silicon Valley grow. . . .

Much of this discussion kicked off with AnnaLee Saxenian's 1994 book Regional Advantage that tries to understand why Silicon Valley developed into the high tech hub it is today, while Boston's Route 128 failed to follow the same path -- even though both were considered at about the same level in the 1970s. Saxenian finds that the single biggest difference in the two regions was the ability of employees to move from firm to firm in Silicon Valley. That factor, ahead of many others, caused Silicon Valley to take off, while the lack of mobility in Boston caused its tech companies to stagnate and make them unable to compete against more nimble Silicon Valley firms. . . .

Ronald Gilson . . . followed it up with his own research suggesting that that it had much less to do with cultural reasons and much more to do with the legal differences between the two places, specifically: California does not enforce noncompetes, while Massachusetts does. . . .

[S]ome researchers from the Federal Reserve and the National Bureau of Economic Research . . . showed that, indeed, there was much greater mobility in Silicon Valley than elsewhere. . . . [S]ome researchers from Harvard Business School put out some research earlier this year that not only compared the situation in Silicon Valley to Boston, but added a third natural experiment in Michigan. You see, Michigan used to not enforce noncompetes, but in 1985, Michigan inadvertently began allowing noncompetes to be enforced again. The research showed that immediately following the change, mobility of inventors in Michigan decreased noticeably, slowing the spread of certain ideas. Their research found that "The networks of small companies so crucial to Silicon Valley's growth would be less likely to develop in regions that enforce noncompetes."

He then expands upon the issue of why digital rights management involves analogous issues and concludes that:

While it may seem easier to "protect" your ideas and your people, what you really end up doing is blocking off your own access to many of the ideas that you need to continue to innovate. You limit the vital mix of ideas to build not just decent products, but great products. . . . noncompetes destroy businesses when competing against more nimble, more open technology clusters.

My brother's status as a Bostonian computer professional who has stayed with the same company for a very long time also perks my interest in the topic. If he had landed in Silcon Valley, instead of Boston, he likely would have moved though several jobs by now.

Also notable is that both medical professionals and lawyers are subject to ethical rules that prohibit agreement to non-competition agreements in most cases, although in the case of lawyers, this is mitigated by elaborate conflict of interest rules that serve as de facto non-competition agreements that protect trade secrets. Few would argue that this has seriously hurt the economic returns associated with the practice of medicine or the practice of law.

Laws invalidating non-competition agreements have close precedents in the area of physical property and intellectual property. In the case of physical property, certain restraints on the alienation of the property are void as a matter of public policy. In the case of intellectual property, the first sale doctrine places real limits on the ability of copyright holders to use a mere copyright to prevent the resale of their intellectual property (although the evolving law of licensing is eroding that doctrine).

One also wonders if severe restaints in the United States justified by the First Amendment to the United States Constitution, on defamation law and the extent to which the fair use defense to copyright violations can be limited haven't had a similar economically beneficial effect.

Lassiez-faire economies are prone to developing private arrangements that have effects comparable to those of government regulation if government does not ban those arrangements.

Blawging Boundaries

While I have sometimes felt like the frustrated attorney whose blog is at issue in an attorney regulation proceeding in Florida, I make it a policy not to blog frankly and broadly about litigation in which I have personally been involved.

I personally don't think that this lawyer's case is one that justifies any sanction more serious than a public reprimand. He made some derogatory statements of opinion and some quite possibly true statement of fact that provide a basis for him having that opinion. Nothing was hurt but the judge's feelings. This was clearly not a civil way to present an opinion about a judge, but arguably the First Amendment even protects the questioned posts of this attorney. The First Amendment would clearly protect such a statement from a member of the general public not involved in the cases in question (assuming that the factual statements were true). But, the role of a lawyer as an officer of the court with duties to his client and the tribunal may constrain this right. More importantly, one of a lawyer's jobs coincident to getting good results for current and future clients is to not piss off the judge, as this almost never helps a client.

The trouble, of course, is that information about the judicial temperament of judges is one of great public concern. But, it is often a matter which only attorneys who practice before those judges are in a good position to evaluate. Not all judges perform their jobs in an model manner, and the public needs to known this because voters have a role in electing or retaining those judges in almost every state. Removing intemperate or unfair judges is the public's business. Getting this message to the public often takes bold words.

The alternative is for lawyers who don't practice before a judge, or the educated lay press, to observe the events in question and report upon them, possibly with the assistance of confidential lawyer sources. But, these steps only address the continuing and modern concern about not hurting a client. These steps do not address the archaic standard for comment about the judiciary by lawyers that is rooted in British sensibilities about respect for the court, and civility, that aren't consistent with modern American ideas about freedom of speech and freedom of the press.

Getting SCOTUS Attention

Do experienced Supreme Court advocates have a higher success rate at the certiorari stage? If so, why might that be?

They do. Roughly speaking they enjoy a 15 to 25 percent success rate and their petitions currently represent between 40 and 50 percent of the non-SG petitions before the Court, which is astoundingly high. I looked at the progression for several years since 1980, and it has steadily significantly increased from fewer than 6 percent in 1980 to approximately 44 percent in OT 06. So far this Term as of last Friday (11/23/07), they are responsible for 49.5 percent of the successful non-SG petitions. . . .

[T]he expert counsel know the kinds of things that will interest the Justices and they know how best to make their cases seem like they relate to those interests. This frequently requires dramatically recasting the legal arguments and policy implications raised by a case and abandoning wholesale arguments made below, sometimes aided by petitions for rehearing in the lower courts in an effort to place a new legal issue in the record. It also often requires creative characterizations of circuit conflicts by looking at a case from a variety of angles and several different degrees of generality. . . .

To persuade the Court that the legal issues presented are important, the expert Bar is especially effective at securing the filing of amicus briefs in support of review. . . . The experts know the filing of amicus briefs by certain kinds of entities (and counsel) are more likely to demonstrate to the Justices and the clerks that a case is important. And, no less important, the expert advocates have the professional connections and credibility necessary to get those briefs filed within the short time frames. My article both documents a dramatic increase in the number of such filings and confirms a previously-established statistical correlation between amicus filings and cert grants.

Another, related tactic often used by the better advocates is the prompt publication in national news media outlets of stories touting the importance of a case now pending on petition before the Court. Wall Street Journal op-eds are a favorite. . . . And these publications are timed to appear precisely when the Court is considering the petition.

Finally, although many clerks formally deny that the mere name of a well known Supreme Court advocate on a petition makes the clerk more likely to pay closer attention to the petition, many others in private interviews have confirmed the obvious that they do.

More at SCOTUS Blog.

Against Criminal Libel

Colorado should repeal its criminal libel law. Criminal libel laws are the stuff of unfree societies.

Judges Read Blogs

A judge's opinions on the legal impact of blogs and legal scholarship are recounted at this post. In his view, neither blogs nor law review articles are irrelevant.

Extraordinary Relief Statistics

Shorter version of How Appealing blogger Howard Bashman's column: Requests for rehearing after losing an appeal of right, including requests for rehearing en banc, or certiorari review from a higher court are mostly futile.

I believe that most appellate judges would agree that litigants and their lawyers who are on the losing end of intermediate appellate court rulings are filing far too many requests for further review in cases that do not satisfy the stringent criteria for such review.

He also notes, however, that there are few remedies to the problem that make sense. Requiring courts to slog through all requests and having them deny most of them is often the most practical option.

SCOTUS Review

Some facts from dkospedia back up that assertion in the federal courts:

For example, in 2002, the U.S. Courts of Appeal decided 27,758 cases on the merits, while the U.S. Supreme Court decided only 150 cases on the merits, only a little more than two-thirds of which were from U.S. Courts of Appeal (thus more than 99.5% of U.S. Court of Appeals rulings were the final word on the issues decided) . . . . in a typical state in a typical year, only about one appeal from a state supreme court is decided by the U.S. Supreme Court on the merits. More than 99% of U.S. Court of Appeals and State Supreme Court cases are not reviewed by the U.S. Supreme Court on the merits.

The number of state court civil cases which even present a federal issue for U.S. Supreme Court review is a fairly small share of the entire state supreme court docket.

En Banc Review

The number of en banc reviews granted in the U.S. Court of Appeals each year nationwide is roughly the same as the number of U.S. Supreme Court certiorari grants.

Habeas Corpus Review

Collateral habeas corpus relief is similarly very rare.

In 2004, there were about 19,000 non-capital federal habeas corpus petitions filed and there were about 210 capital federal habeas corpus petitions filed in U.S. District Court. There are about 60 habeas corpus cases filed in the U.S. Supreme Court's original jurisdiction each year. The U.S. Courts of Appeal do not have original jurisdiction over habeas corpus petitions. . . . As of 2004, the percentage of federal habeas corpus petitions involving state death sentences was still about 1% of the total. . . . About 63% of issues raised in habeas corpus petitions by state court prisoners are dismissed on procedural grounds and about 35% of those issues are dismissed on the merits, while about 2% are either resolved favorable to the prisoner on the merits or remanded to a state court for further proceedings at the U.S. District Court level. . . . [A]study found that when habeas corpus petitions in death penalty cases were traced from conviction to completition of the case that there was "a 40 percent success rate in all capital cases from 1978 to 1995." . . . [Another study] puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47% of the habeas petitions filed by death row inmates were granted." . . . about 20% of successful habeas corpus petitions involve death penalty cases. . . . As of 1991, the average number of federal habeas corpus petitions filed in the United States was 14 per 1,000 people in state prison, but this ranged greatly from state to state from a low a 4 per 1,000 in Rhode Island to a high of 37 per 1,000 in Missouri.

The number of non-death penalty convictions reversed in federal habeas corpus proceedings is about 3 per 10,000.

Pardons

Pardons of persons who have not completed their sentences and commutations (i.e. sentence reductions), are similarly very, very rare (you can count on your fingers the number issued by President George W. Bush since taking office). There are, however, a steady trickle of pardons of people who have long ago served their criminal sentences and since reformed that are issued merely to relieve individuals of the collateral effects of their convictions.

State pardon data is hard to come by, but state level pardons of persons who have not completed their sentences and commutations are very rare, particularly outside death penalty cases.

Discretionary Review in Colorado

Colorado does not have, to the best of my knowledge, a system of en banc review in the Colorado Court of Appeals.

Because it is a fairly small state, with two levels of appellate courts, it has a higher rate of state supreme court review of intermediate court of appeals rulings than many states. About 2-3% of all cases decided on the merits by the Court of Appeals are reviewed on the merits by the Colorado Supreme Court, and on the order of 20%-30% of published opinions of the Colorado Court of Appeals are reviewed on the merits by the Colorado Supreme Court.

Only a tiny percentage of decisions of county and municipal courts, about 645 a year out of more than 530,000 county court cases and an undetermined number of municipal court cases, are appealed (generally to district courts) and a very small percentage of those are ultimately reviewed by the Colorado Supreme Court.

Information about collateral attacks on convictions in state court is harder to find. The most common form of collateral attack is known as a Rule 35(b) motion.

Duh Review (Requests For Rehearing From The Decision Maker)

Getting the panel that decided your case against you to revise a ruling against you (or for that matter getting a trial court judge to do the same thing) normally requires an error in the opinion that would cause a reasonable appellate judge to say, "duh, I screwed that up, didn't I?" in a motion for reconsideration with a number of pages in the low single digits. Mistakes that are reasoned rather than inadvertant are almost never reversed on rehearing.

Examples of the kind of case suitable for that kind of motion include: opinions that cite as key support for the ruling a case that actually had a ruling opposite of the one it is cited for; reliance on key facts present in a case other than the one decided in the opinion; reliance on a key date, number or legal description for the ruling which is cited incorrectly from the record in the opinion; omitting the word "not" or misstating the opinion's ultimate ruling when the entire gist of the remainder of the opinion indicates that the opposite result was intended, getting the parties switched accidentally; or on very rare occasions, failing to mention at all a clearly controlling case (particularly if decided just before or just after briefing was completed) and instead citing one that the controlling case overruled.

Also, winning parties and repeat litigants are frequently able to have opinions that don't quite get a complicated set of facts quite right restated in a modified opinion that does not materially change the holding of the opinion.

Small Firm Exemptions To Employment Laws

Laws prohibiting discrimination in employment often make an exception for the small firm. Title VII, which is the model for many other federal and state discrimination laws, sets a threshold for employer coverage at fifteen employees. A firm employing fewer employees is exempt. As long as it employs no more than fourteen, it can refuse to hire women, Moslems, or disabled persons, and it will not be in violation of federal discrimination law. If it employs as many as nineteen, but no more, it can terminate and refuse to hire anyone over the age of forty.

The practice of exempting small firms from employment laws began long before Title VII. Early occupational safety laws and workers' compensation laws typically exempted small firms. New Deal-era laws such as the Wagner Act and Fair Labor Standards Act of 1938 ("FLSA") originally lacked small firm exemptions, but amendments and administrative practices created protective niches for small firms. As a result, an exempt small firm can pay less than the statutory minimum wage, refuse to pay overtime rates, discharge union supporters, and reject collective bargaining regardless of the wishes of its employees.

From Richard Carlson, "The Small Firm Exemption and the Single Employer Doctrine In Employment Discrimination Law", St. John's Law Review (2006).

Carlson goes on to note that statistically, small businesses are less likely to employ beneficiaries of these laws, and that small firms make up a meaningful share of the American work force.

The ADA and Title VII apply to any employer with 15 or more employees for a period of 20 weeks or more. The Age Discrimination in Employment Act (ADEA) has a 20 employee minimum requirement for 20 or more weeks. An exception is the EPA (Equal Pay Act), which does not provide minimum employee exceptions. The cutoff of the Family and Medical Leave Act is 50 employees.

The FLSA and Wagner Act thresholds are a function of revenue.

Under the FLSA:

All employees of certain enterprises having workers engaged in interstate commerce, producing goods for interstate commerce, or handling, selling, or otherwise working on goods or materials that have been moved in or produced for such commerce by any person, are covered by FLSA.

A covered enterprise is the related activities performed through unified operation or common control by any person or persons for a common business purpose and -

* whose annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated); or
* is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, or the mentally ill who reside on the premises; a school for mentally or physically disabled or gifted children; a preschool, an elementary or secondary school, or an institution of higher education (whether operated for profit or not for profit); or
* is an activity of a public agency.

Any enterprise that was covered by FLSA on March 31, 1990, and that ceased to be covered because of the revised $500,000 test, continues to be subject to the overtime pay, child labor and recordkeeping provisions of FLSA.

Employees of firms which are not covered enterprises under FLSA still may be subject to its minimum wage, overtime pay, recordkeeping, and child labor provisions if they are individually engaged in interstate commerce or in the production of goods for interstate commerce, or in any closely-related process or occupation directly essential to such production. Such employees include those who: work in communications or transportation; regularly use the mails, telephones, or telegraph for interstate communication, or keep records of interstate transactions; handle, ship, or receive goods moving in interstate commerce; regularly cross State lines in the course of employment; or work for independent employers who contract to do clerical, custodial, maintenance, or other work for firms engaged in interstate commerce or in the production of goods for interstate commerce.

Domestic service workers such as day workers, housekeepers, chauffeurs, cooks, or full-time babysitters are covered if:

* their cash wages from one employer in calendar year 2007 are at least $1,500 (this calendar year threshold is adjusted by the Social Security Administration each year); or
* they work a total of more than 8 hours a week for one or more employers.

In short, while there is, in theory, an FLSA exemption for firms engaged in intrastate commerce, if you make long distance calls or send letters to other states, your business is engaged in interstate commerce.

There has been less exploration of the boundaries of the federal labor-management law called the Wagner Act, because there isn't much of a percentage in having a union in a very small enterprise when the employer can permanently replace employees who strike.

[Under the Wagner Act] in the United States there is no minimum threshold of employees an employer must employ before an application ismade for certification under the procedure. There is however an exception for small businesses, though this is based on the practices of the Board rather than the legislation itself. But here the exception is based on the gross annual receipts of the employer ($500,000 for retail establishments and $50,000 for non-retail establishments), rather than the number of employees.

From here, also discussing exemptions in England and elsewhere.

By way of comparison, rather than having anti-discrimination laws, Germany, as of 2004, required that employees terminate employment only for cause in all firms of under ten employees (FTE, excluding owners, family members without employment contracts, consultants, and temps, at a single establishment), and the laid off employees be released from service according to certain standards.

Some state laws, for example, Colorado laws on non-competition clauses and certain aspects of management-labor relations, lack comparable exemptions. Colorado's Labor Peace Act excludes employers with fewer than eight employees.