Thursday, October 16, 2014

Do we have enough educated people in America to staff our bureaucracies?

About two weeks ago, a man ran a traffic light (apparently after brake failure) and crashed into my Honda Pilot.  This is the third time in three decades of driving with the same insurance company that I have been in an accident that was not my fault.  What has changed is that the claims "team" is slow and needs to be prodded (and now wants me to do their job online).  Upon my instruction, they ordered my car to be taken from the wrecker's yard to my preferred body shop, but did not inform the body shop of the claim number and what needed to be done.  If I had not gone to the body shop last Thursday to pull some things out of the car, then the body shop would not have known the situation and been able to get to work.

This minor inconvenience caused by an insurance company illustrates a bigger problem: We do not have enough educated, organized, and meticulous people to staff the thousands of bureaucracies needed for compliance with our myriad laws.  

Thursday, October 9, 2014

Can you go to jail for removing asbestos improperly?

Yes, if you knowingly fail to comply with the law regarding asbestos removal.  In this case, a landowner and his property manager were sentenced to jail for conspiracy as well as violations of other laws:

Thursday, October 2, 2014

Conservation of what ought to be conserved...

I have always been fascinated by water and would prefer to play in a wet ditch than go to an amusement park.  When I was young, I remember craning my neck to see creeks and rivers when crossing highway bridges (and I still do so).  Here in northern Alabama, red clay is very common, and Alabama's waters in those days were often red because of construction, strip mining, agriculture, etc.

Reuse of Environmentally-Impaired Property

Early in my legal career, I examined two huge closing binders of several hundred pages each for the sale of the Atlantic Steel property north of Georgia Tech in Atlanta to Atlantic Station, LLC.  The old steel mill had the usual slag piles and chemical spills but is now redeveloped for mixed use: banking, offices, institutions, retail, restaurants, high-rise condos, town houses, and affordable housing.  What the site has in common with many other environmentally-impaired properties is that it required a complex public-private partnership for redevelopment.

Friday, September 19, 2014

Scotland votes NO to independence.

A YES vote would have been one of the biggest stories of the century, but not necessarily a happy story.  (And this story would have major constitutional and legal implications on both sides of the Atlantic.)  For those of us across the pond who enjoyed Braveheart, this referendum had little romance of something mystically Scottish.  In the end, the decision came to utilitarian issues:

How the Superfund Came Into Being...

There is a environmental statute known as the Superfund Act that gives a federal agency, the EPA, very broad powers to clean up toxic spills and hazardous substances. 
The Superfund was enacted to answer one of the worst peacetime nightmares citizens can have: to wake up after years in a supposedly safe and peaceful home to learn there is toxic waste in your own backyard.  Love Canal is a neighborhood in Niagara Falls, New York built near the site of a partially dug but abandoned canal.  Prior to 1953, about 21,000 tons of alkalines, acids, and chlorinated hydrocarbons from the processing of dyes, solvents, and resins were buried in barrels by a chemical company in the shallow clay-lined canal.  The discovery during the 1970s of ruptured barrels leaking toxins near homes and schools is an American horror story.

Thursday, September 18, 2014

What is a consecrated host under the law of property?

On the first day of property class in law school, it is common for the professor to grab a book off a student's desk and ask the student: How do you know this is your property?  In most cases, the bewildered new law student cannot show conclusive proof that he lawfully owns much of anything, unless he keeps his car title in his pocket.

Who owns bread consecrated for religious purposes?  Is it lawful for someone outside a faith community to take something sacred to that community and publicly destroy it?  In some cases, no, in particular, if the bread is a conditional gift or gift in trust.

Fear of failure leads to failure.

Lane Kiffin is now perhaps the most famous and infamous offensive coordinator in college football.  After being the National Football League's youngest head coach with the Oakland Raiders, he was head coach at the University of Tennessee for one year before leaving suddenly to become head coach at the University of Southern California.  After both success and tumult at USC, he was fired unceremoniously in mid-season last year.

"The only wisdom we can hope to obtain is the wisdom of humility.  Humility is endless."  So said T.S. Eliot, and so we all must sometimes learn the hard way.  

Wednesday, August 13, 2014

To Facebook or not to Facebook- part 2

I am young enough to enjoy the "social media" and old enough to know that the world did just as well without it.  I heard part of a segment on NPR's Diane Rehm Show this week, "Effects of Increasing Digital Connections on Relationships and Community", with authors of two books: The Vanishing Neighbor: The Transformation of American Community by Mark Dunkelman and The Village Effect: How Face-to-Face Contact Can Make Us Healthier, Happier, and Smarter by Susan Pinker.

Their common theme is that social media does not necessarily change our intimate relations (though it might play a role in their initiation) but social media does draw a person into remote relations with people seldom if ever seen, such as Twitter followers and Facebook friends.  The losing interest in this squeeze of time and attention is that segment we used to call "community" (before everyone talked about "communities" in the abstract).  

If they can shoot a rabbi in Miami, they will come for you too eventually.

This week's tragedy of the rabbi shot and killed in Miami coincided with the anniversary of a priest being shot on the front porch of the rectory at St. Paul's Church in Birmingham, Alabama on August 11, 1921.

Human beings need scapegoats.  We have a terrible time accepting that we collectively suffer, do, and tolerate horrible things.  We tend to take out our fury on someone we can dehumanize.  No small group gets as much widespread hatred as the Jews.  Last week, Rabbi Joseph Raksin of Brooklyn was apparently shot in cold blood while walking on a public street on the Sabbath.  In 1921, Fr. James E. Coyle was shot on the rectory porch while saying his evening prayers.

Wednesday, August 6, 2014

Flat fees v. billing by the hour

When I started practicing law, I found myself working by the hour for the first time in years.  My salary was fixed, but my most tangible value to the firm was measured by my billable hours.

The billable hour is a haunting presence in a law firm.  Young lawyers are led to believe that happiness is making partner and that making partner means sitting at a desk for more than 2,000 hours per year, but we all know that happiness is not being chained to a desk.  Among my law school classmates, as bright and energetic as they are, most have not become or remained partners in large firms.  They are well-distributed in small firms, government agencies, corporate in-house legal departments, start-ups, and solo practices as well as big firms.  Those who bill by the hour consider it a perpetual burden, and those who no longer bill by the hour were generally glad to unload the burden.

How slow can you go?

A few times each year I slow-cook pork outdoors, that is, I smoke Boston butts overnight.  (The Boston butt got its name in North America because of how it was packed in barrels called "butts"; it is actually the upper front shoulder.)  Before you begin, the meat should be close to room temperature.  I rub the pork with brown sugar mixed with sea salt and a little pepper.

What is coming after Hobby Lobby?

Cases similar to Hobby Lobby are being reconsidered by the lower courts.  Meanwhile, various courts of appeals are issuing conflicting precedents regarding the Affordable Care Act that will likely be reviewed by the U.S. Supreme Court.

Under the Religious Freedom Restoration Act, can a federal regulation require a religious non-profit such as the Little Sisters of the Poor to declare themselves against the contraceptive mandate so that their insurance company, by fiat of the federal government, must provide contraceptives at no cost to the employees?  Wheaton College and the Catholic University of America as religious non-profits are likewise fighting the contraceptive mandate and received a temporary reprieve from it.  Can such religious institutions whose long-held statements of faith oppose the use of abortifacients be forced to include them in their health insurance plans?

"It's not the money. It's the principle!"

There is an oft-repeated story of an attorney who told the jury in his closing argument that the case was "not about the money, but the principle."  The jury responded by finding a verdict in his client's favor and awarding him the grand sum of a dollar in damages.  

Litigation is akin to warfare.  Thucydides said that nations have three motivations when going to war: fear, honor, and interest.  The same is true in litigation, and it is best to note that the three motivations tend to overlap.

What is an LLC? Why is an LLC preferable to a corporation and partnership in some situations?

A limited liability company is a hybrid business entity that combines features of both corporations and partnerships.  LLCs have been in existence for about three decades but are still not understood by the general public.  

Thursday, July 31, 2014

Lesson of Hobby Lobby: Statutes almost always trump regulations.

Hobby Lobby, Inc. v. Burwell was decided on June 30, and more religious rights litigation is on the way to the U.S. Supreme Court, so here are some major points of the decision as we prepare for the next round:

Wednesday, July 30, 2014

Wandering America

My wife and daughter spent Monday night on the Upper Peninsula of Michigan and last night in Petoskey on the northern end of the Lower Peninsula.  

We are migratory creatures, aren't we?  Michigan just had the coldest winter in a generation, and my wife took my daughter to her ancestral state to dip their feet in Lakes Superior, Michigan, and Huron!

But the water is more than just refreshing.  It is both primal and transcendent.

Image Credit:  “Somewhere Out There” by James Kim is licensed under CC BY-SA 2.0

Why I got into Elder Law

My closest relative outside my immediate family growing up was my grandmother.  My mother was the youngest of three, and I am the youngest of four, so Grandmother was pushing seventy when I was born.  I am very fortunate that she made it to ninety.

She was an inspiration.  She thought things through, read things thoroughly, and befriended intelligent and successful people.  She attended college before many women went to college, and she majored in chemistry.  During World War I, she worked as a chemist in New York City.  She married a doctor and became the assistant editor of a medical journal.  Because I did not pursue medicine myself, I do not know just how smart she was.

Like all of us, she declined in health as the years went by.  She took very good care of herself, and she died peacefully at her home.  As the years went by, I got to see how she planned for her own death.

Image Credit:  "Welcome Gate" by Lisa Allen is licensed under CC BY-ND 2.0

Do you need a will? The answer to that question is usually yes. Do you need other estate planning as well? The answer to that question is almost always yes.

Estate planning is more than writing a will.  A will declares your intentions at death regarding your property and family.  A will is generally not binding until the moment of death, but there are often assets to be administered outside of a will such as insurance, bank accounts, and investment accounts. 

The modern trend is to plan estates so that very little property is covered by the will and subject to the probate courts.

What is a "power of attorney"? What are some of its uses? How can a power of attorney help during a family emergency?

"Power of attorney" means someone has been appointed to stand in the place of another.  We usually think of an "attorney" as someone who is licensed to represent someone in court, that is, an "attorney at law", but a non-lawyer might be granted "power of attorney" to stand in for another person at, say, a real estate closing.  Such powers of attorney are usually limited to a specific transaction.  The person granted the power to stand in for you is sometimes called an "attorney in fact".

"Durable power of attorney" is an extraordinary authority to stand in for another even if he becomes incapacitated by illness or injury. 

Wednesday, July 23, 2014

Should you use online forms to create legal documents for yourself?

A good question.

We have all written our own contracts, whether we thought about it or not.  When I was much younger, I gladly sold my ancient Toyota for $10 to someone who wanted to fix it up.  The bill of sale was hand-written.  Today, anyone can go online and draft a contract, will, power of attorney, or trademark application for a few hundred dollars or less.

What is Wrong with the VA?

Everyone knows a veteran, and we shudder to think about our veterans being neglected by the nation that called them to service.  Scandals at the Department of Veterans Affairs, better known as the "VA," have a long history.  Today there are well over 270,000 VA employees and a budget of at least $132 billion.  The scandals are serious and are exacerbated by the vastness of the VA's mission:
·                     If favorable reviews and promotions are based upon short waiting lists, then managers are going to "fudge" the waiting lists.  VA created incentives for its managers to cheat.  In some cases they apparently shredded records, assigned patients to imaginary doctors, and hid lists.  As dishonest as some of the facility managers were, the higher-ups who set efficiency goals disconnected from reality were just as culpable.

If someone you love became sick or disabled very fast, would you know what to do and have authority to do so?

Not long ago, a relative of mine lived happily alone, drove his car to restaurants, ran his own errands, and kept his own doctors' appointments.  One day this changed in a matter of minutes as he suddenly lost his situational awareness and his balance while on an outing with his family.

Excellence Personified: Sarah and David Patterson

As Dizzy Dean said long ago, "It ain't braggin' when you dun dun it."

One does not need to be a fan of gymnastics or the University of Alabama to appreciate Sarah and David Patterson.  If you had a daughter talented in gymnastics, they are the sort of college coaching team you would want for her.  

Sarah Patterson was the last head coach at UA hired by the late athletic director (and somewhat famous coach) Paul Bryant.  She came to UA in 1979 as a recent graduate of Slippery Rock State to coach in a program that was in turmoil and under consideration for shutdown.  She became the Pat Summitt of women's college gymnastics.  The scoreboard is impressive enough: six national championships, eight SEC championships, 29 regional championships, and four times as NCAA coach of the year.

What happens to your electronic accounts when you die?

Will you be on YouTube long after you are gone?  Killing off an electronic account might be harder than killing a zombie.

Friday, July 18, 2014

To Facebook or Not to Facebook?

I was on Facebook for several years and enjoyed it probably too much.  It is endlessly stimulating, especially if you have lived in several places.  Nonetheless, it is addictive, and for that reason I closed my account in order to focus on people I regularly see and touch.  Besides Facebook's addictive qualities, the fact FB would change your privacy settings without notice was a very bad sign.

No regrets.  That spring Mark Zuckerberg revealed to the world during his initial public offering that there are many reasons to dislike Facebook, especially the company's indifference to anyone's privacy.

The devil's bargain of the 21st century is that we can find all sorts of people and things on the internet so long as we don't mind all of our inquiries being tracked, measured, weighed, and sold.  My wife had a Facebook account briefly, but found Facebook's crawling algorithms to be downright creepy: FB suggested dozens of friends scarcely connected to her few friends on the platform.

Because I have started my own law practice and once had a few hundred FB friends, I am considering getting another account.  Today I saw on LinkedIn these articles by Chris Chan and was reminded of why I got rid of Facebook two years ago:

"Why I Quit Facebook and We are Sharing Much More than You Think"

"An Open Letter to Mark Zuckerberg"

I recognize the irony of my discussing these LinkedIn posts with people from all over the world on a Google account.  Google has plenty of critics too, and like LinkedIn, will sell your information to the highest bidder.  Google, however, does not have a "face" as Facebook does.

Mark Zuckerberg is a hacker turned entrepreneur turned billionaire who cannot help but tell you that he is taking your photos, videos, connections, friendships, business relationships, affiliations, families, conversations, love notes, politics, recipes, and religion to the bank (which he can now afford to buy).

As Lord Acton said, "Power corrupts, and absolute power corrupts absolutely."  A faceless corporation can be far more dangerous than one with a face, but a young narcissist's face can reveal much.  This crystal ball is not pretty.