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Tell your statistics to shut up

[ 24 ] November 29, 2012 |

Case Western Reserve Law School Dean Larry Mitchell had an op ed in the Times this morning about why certain unnamed “sensationalist” critics of American legal education are being sensationalistic.

My response is here.


Occupy Best Buy

[ 38 ] November 23, 2012 |

On early Wednesday evening I noticed four tents were pitched in a line in front of my local Best Buy, and I decided to do some journamalizing. It turned out the first tent at this Black Friday base camp was occupied by a couple of college students. One was a 23-year-old architecture grad student at the University of Denver; his girlfriend was a 21-year-old biochemistry major at CU-Boulder. Other fascinating factoids:

(1) They had arrived on Tuesday morning, i.e, about 63 hours ahead of Best Buy’s midnight opening. The second tent in the line was pitched on Tuesday night.

(2) Their primary goals involved acquiring a 55-inch TV for $450, and a Tablet for $179. Also they wanted to get some camera stuff.

(3) They had spent the last two days, and were going to spend Thanksgiving, eating a diet consisting mostly of Ramen noodles, prepared with a camping stove.

(4) They had purchased both the tent (for $110) and the stove (price unknown) for the purposes of this trek.

(5) Last night had been the first night that either of them had ever slept in a tent.

(6) In years past they had gone to Black Friday midnight openings several hours in advance, but always found themselves far back in the line. This year they decided they would do whatever they had to do to avoid this fate.

(7) A few months ago the the city of Denver tried, with how much success I’m not sure, to kick Occupy Denver out of City Park, on the grounds that the protesters didn’t have the appropriate permits for overnight camping. Update: What I was vaguely recalling was this ordinance, which made overnight camping — but not sleeping on the street! — in public places in Denver a crime.

I realize that interviewing people like this couple and writing about it is part of a process of media framing that turns lining up days in advance for Black Friday into a news “event” (or pseudo-event), which in turn helps create social understandings and expectations that in turn shape the behavior of the people the media are interviewing. All very self-referential and pomo and all that.

Oh well.


[ 50 ] November 22, 2012 |

For anybody who is ever inclined to take David M. Nieporent’s opinions on any legal issue seriously, consider this comment, regarding whether it’s legal to hire judicial clerks for full-time jobs and pay them a salary of zero:

The whole “volunteer” thing is a red herring; this isn’t illegal because the minimurn wage does not apply to lawyers.

This is in response to a post which notes that “the general purpose of the FLSA is to prohibit employers from not paying employees, and to enforce minimum wage standards (there are different wage standards for hourly and professional workers but you still have to pay people if they’re working for you).”

Learned Professional Exemption

To qualify for the learned professional employee exemption, all of the following tests must be met:

The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
The advanced knowledge must be in a field of science or learning; and
The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.


[ 110 ] November 21, 2012 |

This is a request for reading suggestions.

I’m trying to think about the following problem: How are societies going to deal with a world in which labor for wages economic model that characterized the post-agrarian industrial age is increasingly breaking down? In other words, what is the future of work?

I realize this is a gigantic topic, so maybe it will help to give a a couple of examples of the kind of thing that’s triggered my puzzlement/curiosity:

(1) The market for getting paid to be a lawyer has been seriously constricted by forces such as machines doing what lawyers used to do, people who are not lawyers being paid (less) to do what lawyers used to do, do it yourself lawyering (LegalZoom etc), and globalization (people in other countries paid to do what before could only be done in the US (Pangea etc). Now if this were a problem peculiar to lawyers then the broader social consequences would be trivial. But it isn’t at all. One response I often get to my law school stuff is “what do you suggest we do instead?” It’s obviously a good question.

(2) Erik posted a few months ago about self-checkout machines at grocery stores. These machines lower transaction costs for consumers but they destroy jobs. What about a world in which everything is moving toward becoming a self-checkout machine?

I assume there must be all sorts of interesting things written about these questions. I just don’t know what they are, and would like to crowd source my initial research instead of paying an RA to do it.

My offer is nothing

[ 48 ] November 21, 2012 |

I have a piece in Salon arguing that a Denver federal judge has pushed the government’s willingness to stretch the definition of who qualifies as a genuine “volunteer” under the FLSA beyond the legal breaking point.

The general purpose of the FLSA is to prohibit employers from not paying employees, and to enforce minimum wage standards (there are different wage standards for hourly and professional workers but you still have to pay people if they’re working for you).

The two exceptions to this principle are “internships” and “volunteering.” (The latter exception doesn’t apply to for-profit enterprises). In theory internships are supposed to be limited to educational training that doesn’t displace paid workers. This rule can be and is regularly abused, but the most flagrant abuse of the statute is now taking place in the public sector, through the semantic torture of the noun and verb “volunteer.”

Here’s the relevant definition in the Code of Federal Regulations:

§ 553.101 “Volunteer” defined.

(a) An individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered, is considered to be a volunteer during such hours. Individuals performing hours of service for such a public agency will be considered volunteers for the time so spent and not subject to sections 6, 7, and 11 of the FLSA when such hours of service are performed in accord with sections 3(e)(4) (A) and (B) of the FLSA and the guidelines in this subpart.

(b) Congress did not intend to discourage or impede volunteer activities undertaken for civic, charitable, or humanitarian purposes, but expressed its wish to prevent any manipulation or abuse of minimum wage or overtime requirements through coercion or undue pressure upon individuals to “volunteer” their services.

(c) Individuals shall be considered volunteers only where their services are offered freely and without pressure or coercion, direct or implied, from an employer.

(d) An individual shall not be considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer.

Conducting a hiring process that is precisely identical in every detail for two positions that involve doing precisely the same job for the same time period under the same terms of employment, except you pay one of your hires as a GS-11 or GS-12 and pay the other nothing, appears to me to empty the concept of “volunteer” of all meaning.

On a more general level, what’s happening in the legal employment market is that it’s becoming the norm for a graduate to spend a year or two after graduation working for either literally nothing, or to something close to the economic equivalent, while trying to get his or her “foot in the door” of a real legal job. So what we’re producing is something that’s coming to more and more resemble the old apprenticeship system of lawyer training, but with a $200,000+ license fee tacked on.

Naturally this is making it increasingly implausible for people who don’t come from serious money to actually become real lawyers. In the new gilded age, that might even be the whole point.

Women and law graduate overproduction

[ 66 ] November 20, 2012 |

Departure memo sent by a former junior associate at a large law firm:


A day in the life of Ms. X (and many others here, I presume):

4:00am: Hear baby screaming, hope I am dreaming, realize I’m not, sleep walk to nursery, give her a pacifier and put her back to sleep
4:45am: Finally get back to bed
5:30am: Alarm goes off, hit snooze
6:00am: See the shadow of a small person standing at my bedroom door, realize it is my son who has wet the bed (time to change the sheets)
6:15am: Hear baby screaming, make a bottle, turn on another excruciating episode of Backyardigans, feed baby
7:00am: Find some clean clothes for the kids, get them dressed
7:30am: Realize that I am still in my pajamas and haven’t showered, so pull hair back in a ponytail and throw on a suit
8:00am: Pile into the car, drive the kids to daycare
8:15am: TRAFFIC
9:00am: finally arrive at daycare, baby spits up on suit, get kids to their classrooms, realize I have a conference call in 15 minutes
9:20am: Run into my office, dial-in to conference call 5 minutes late and realize that no one would have known whether or not I was on the call, but take notes anyway
9:30am: Get an email that my time is late, Again! Enter my time
10:00am: Team meeting; leave with a 50-item to-do list
11:00am: Attempt to prioritize to-do list and start tasks; start an email delegating a portion of the tasks (then, remember there is no one under me)
2:00pm: Realize I forgot to eat lunch, so go to the 9th floor kitchen to score some leftovers
2:30pm: Get a frantic email from a client needing an answer to a question by COB today
2:45pm: postpone work on task number 2 of 50 from to-do list and attempt to draft a response to client’s question
4:30pm: send draft response to Senior Associate and Partner for review
5:00pm: receive conflicting comments from Senior Associate and Partner (one in new version and one in track changes); attempt to reconcile; send redline
5:30pm: wait for approval to send response to client; realize that I am going to be late picking up the kids from daycare ($5 for each minute late)
5:50pm: get approval; quickly send response to client
6:00pm: race to daycare to get the kids (they are the last two there)
6:30pm: TRAFFIC with a side of screaming kids who are starving
7:15pm: Finally arrive home, throw chicken nuggets in the microwave, feed the family
7:45pm: Negotiate with husband over who will do bathtime and bedtime routine; lose
8:00pm: Bath, pajamas, books, bed
9:00pm: Kids are finally asleep, check blackberry and have 25 unread messages
9:15pm: Make a cup of coffee and open laptop; login to Citrix
9:45pm: Citrix finally loads; start task number 2
11:30pm: Wake up and realize I fell asleep at my desk; make more coffee; get through task number 3
1:00am: Jump in the shower (lord knows I won’t have time in the morning)
1:30am: Finally go to bed


Needless to say, I have not been able to simultaneously meet the demands of career and family, so have chosen to leave private practice, and the practice of law (at least for now). I truly admire all of you that have been able to juggle your career and family and do not envy what a challenge it is trying to do each well. I appreciate those of you who have been incredibly understanding of my family obligations over the past few years, and especially the last several months. I have learned so much from so many of you and hope to keep in touch for years to come (a special thank you to A, W, G and D). Please call or email anytime – my personal contact information is listed below.

Read more…

A victory for the forces of reaction

[ 166 ] November 15, 2012 |


As a Tigers fan, I’m happy for Miguel Cabrera, but I’ve also been a card-carrying baseball stats geek since Bill James’ Abstract went national in 1983, and this is ridiculous.

Not so much the result per se — although I think the arguments for Cabrera over Trout as AL MVP are weak, they’re not absurd — but rather the margin. 22 of 28 AL voters picked Cabrera over Trout (one voter, 783-year-old Sheldon Ocker, who started sports journalizing for the Beacon-Journal the same year Yaz won the triple crown, put Trout third). The advanced stats, in other words, which all indicate Trout had a much better year than Cabrera, appear to have made almost no impact on the voting.

(Interestingly, the linked USA TODAY story was originally headlined “Cabrera Edges Trout For MVP,” even though as MVP votes go this was a very one-sided one.)

Twinkies face extinction as a result of moocher demands

[ 92 ] November 14, 2012 |


Galtian Overlords look on helplessly:

Nov 14 (Reuters) – Hostess Brands Inc said it would seek
this week to liquidate the company unless enough workers stopped striking by the end of the workday on Thursday to allow the maker of Wonder bread and Twinkies to resume normal operations.

Members of the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM) went on strike on Nov. 9 in response to court-approved pay cuts. The company, which has about 18,000 employees, filed for Chapter 11 bankruptcy in January.

Hostess said it would file a motion with U.S. Bankruptcy Court in White Plains, New York, on Friday to close shop and sell its assets if enough employees do not return to work by 5 p.m. Eastern time on Thursday. If the motion is granted, Hostess would begin to close its operations as soon as Nov. 20.

Hostess Chief Executive Gregory Rayburn said the company did not have the financial wherewithal to weather an ongoing strike.

A union spokesman was not immediately available for comment.

The case is Hostess Brands Inc, Case No. 12-22052, U.S. Bankruptcy Court, Southern District of New York.

Dazed and Confused

[ 78 ] November 12, 2012 |

d & z

Let’s see, how to phrase this?

Version One [Polite academese]: The pedagogic value of the third year of law school has long been questioned by law students.

Version Two [Qualitative sociology in the Internet age]: 3LOL

Seriously, legal academics and administrators could find worse uses for ten minutes of their time than reading through the linked TLS thread, which provides a mordant reminder that many 3Ls do literally none of the assigned reading, show up for class only if compelled to do so, and pay no attention to what’s going on even when they’re physically there. A few highlights:

I’ve gone to 3 classes in two weeks. That’s three hours in two weeks. I’m exhausted.

I was assigned 8 pages to read for tomorrow…can’t even get through 4. How the hell did I read hundreds in 1L?!

Tomorrow is the third week of class. I’ve been to two days of school. And I have zero books.

I’m at 3LOL in a town where some bars stay open until 5am daily. I should leave a credit card open at each of them, just for the convenience of having a permanently open tab at all of them.

I think I’m gonna take random classes in the rest of the university. I signed up for calculus this semester. The professor emailed said he thought I might be too busy with law school. I told him I won’t be as busy as he might think.

Read more…

The Surge’s General

[ 104 ] November 11, 2012 |

Gen. and Broadwell

Gen and Kelley

For P4, as Petraeus is known in military circles, this is about the fourth high-profile book he has collaborated on. He debuted on the literary scene as a young general “coming of age” during the 2003 invasion of Iraq in Rick Atkinson’s In The Company of Soldiers. (“Petraeus kept me at his elbow virtually all day, every day,” writes Atkinson.) He reappeared as a brilliant strategist in a 2008 snoozer called Tell Me How This Ends by Linda Robinson. (Soon after publishing the book, Robinson, a reporter for U.S. News and World Report, went on to take a job working for Petraeus as an analyst at the U.S. Central Command.) Then, retired journalist turned military blogger Tom Ricks thoroughly lionized him in the highly readable and on-the-knees-admiring The Gamble: General David Petraeus and the American Military Adventure in Iraq, which credits the general’s “surge” strategy with turning that war around. Three for three.

Broadwell’s contribution to the genre started brewing after she met Petraeus at the Harvard Kennedy School of government in 2006, while getting her master’s degree. As she recalls in her book’s preface, the two hit it off, the general viewing Broadwell as “an aspiring soldier-scholar.” Both were West Point grads, sharing interests in counterinsurgency and counterterrorism. They soon started emailing. “I took full advantage of his open-door policy to seek insight and share perspectives,” she writes. In 2008, Broadwell began her doctoral dissertation, “a case study of General Petraeus’s leadership.” After President Obama picked Petraeus, in June 2010, to take over the war in Afghanistan, she decided to turn the dissertation into a book. Petraeus invited her to Kabul, where she would spend several months “observing Petraeus and his team” and conducting “numerous interviews and email exchanges with Petraeus and his inner circle.”

The result is a work of fan fiction so fawning that not even Max Boot – a Petraeus buddy and Pentagon sock puppet – could bring himself to rave about it, grouching in The Wall Street Journal about All In’s “lack of independent perspective” and the authors’ tendency to skirt conflict. (Boot, the hackiest of the neocon hacks, is now an advisor to Mitt Romney.)

The saga, which would ultimately end the public service career of one of the most respected military minds of this generation, began when harassing emails were sent to Kelley, who in turn, notified the FBI.

The emails were traced to Broadwell’s inbox, where investigators are said to have found intimate emails that indicated Petraeus was having an extramarital affair with his biographer.

Investigators uncovered no compromising of classified information or criminal activity, sources familiar with the probe said, adding that all that was found was a lot of “human drama.”

Clearly, Gen. Petraeus does not avoid women. Nor does he deny them his essence.

Book excerpt

[ 4 ] November 9, 2012 |

The current issue of the National Jurist includes an excerpt from Don’t Go to Law School (Unless), which explains how federal loan forgiveness programs exacerbate an out of control and wildly inefficient cost structure.

A matter of discretion

[ 90 ] November 8, 2012 |

I have a piece in Salon on the Obama administration’s pending decision regarding what to do about the fact that Colorado and Washington have legalized marijuana.

In my view the importance of the fact that two states — one of them much more mauve than blue — decided to begin to implement something resembling a rational drug policy, has been somewhat lost in all the tumult regarding everything else that happened Tuesday.

This is a key moment in the fight not only against the preposterous war on (some people who use some) drugs, but against a central element of the entire prison-industrial complex — an issue that got essentially no attention during the presidential campaign.

It’s also the opposite of a plea for the president to unleash his Green Lantern powers or to employ the BULLY PULPIT. What he has to do is nothing. That doesn’t seem like too much to ask.

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