Tuesday, June 16, 2015

Monday, June 8, 2015

Why the Internet Is Good for Those Needing a Lawyer

I have an acquaintance in New York who is a personal injury attorney and a very good one.  He released a video explaining what sepsis is, and within twenty minutes a client found him through YouTube.  In the old days, his client would have found a lawyer by inquiring among his community's leaders and hoping that the lawyer he found by reputation was a good fit for him and his matter.  Once the U.S. Supreme Court struck down the various states' bans on lawyer advertising during the 1970s, we have had daily barrages of promotions that seldom educate.  Neither of these methods is an efficient way to match a client to a qualified specialist.  Today, however, you can do a word search on the internet of something legal and technical and find articles, videos, blog posts, and websites explaining the searched word and an attorney willing to explain things to you before you visit anyone's office.

People get excited about buying houses, cars, boats, clothes, sporting goods, and food, but few people say, "I am so ecstatic!  I found a new lawyer!"  When people are looking for us, they have usually received an unexpected and unwelcome jolt: news of an illness, a family death, threat of a lawsuit, an unraveling business deal, or trouble with their property.  They are not in a trusting frame of mind.
The internet allows someone who needs a lawyer to learn the jargon of the issue, clarify the need, and find an attorney who can explain how to prevent the problem from getting worse and perhaps to make the problem go away.  In many cases, people do not actually contact a lawyer for weeks or months, but rather, they will study the matter and check out a number of lawyers before making a call.

For these reasons we have recently added many features to our website.  

Why You Don't Want to Be Administrator of an Estate, But You Will Probably Do It Anyway

Even without thinking about it, you would know that being administrator of an estate is a pain the neck.  You are likely grieving the loss of someone you love, yet have to clean up legal issues left at death.  It is not easy even if the family gets along, the debts are small, and the property is simple.  It can be a nightmare if there is conflict.

Let's suppose you lose someone you love, and no will is found.  You find that your siblings do not have the time or energy to take care of the estate, so you file a "petition for letters of administration" with the probate court.  That includes getting a bond for yourself worth roughly the value of the estate and advertising the opening of the estate (to invite the creditors and troublemakers to appear).  Once you are appointed, you take inventory of the assets, prioritize the bills, pay the bills from the assets¸ distribute the remaining assets (or ask the court to declare the estate insolvent), and eventually close the estate.  Most people who do it once don't do it again.

Nonetheless, if you see that you are the best person to take care of your mother's, father's, or sibling's affairs, you will likely do it, and for the best of reasons. A man once observed Mother Teresa cleansing the filthy sores of a leper and said: “I would not clean him for all the money in the world." To this Mother Teresa replied: “Nor would I.”

Thursday, June 4, 2015

The Litigious Man

Several years ago we cross-examined at deposition a wealthy man who woke up every morning afraid he would be poor by sundown.  He took litigious vengeance against any man who got in his way.  In one case he had lost in the trial court, the court of appeals, and the state supreme trying to evict a Mom & Pop business from one of his properties.  He had worn out some of the best lawyers in town, and most of those had worked for him.  

He was every defendant's nightmare: an intelligent, deep-pocketed opponent with a fear of poverty.  An inside source told us that he remembered the details of every business deal he'd ever made, but when we questioned him, he claimed he could not remember anything.  The day was a lesson in human behavior and conflict.  

I described him to my daughter as an example of what you do not want to be when you grow up.

Wednesday, June 3, 2015

Religious colleges' exemptions from federal laws

With few exceptions, American colleges have become partners with the federal government.  At the university level, Uncle Sam provides large grants for research and service.  For the smaller colleges driven by tuition, the federal government guarantees the students' loans and now often originates those loans.  Thus, the federal government is now the lender whose loan terms determine where students may attend college.  (E.g., one can get a student loan to study religion at a state university but not to study for the priesthood.)

The clash we are now seeing is between the First Amendment rights of religious organizations and colleges and Fourteenth Amendment rights as trending for the formalization of same-sex partnerships.   There is a ton written on this, and it will get much more attention for the foreseeable future, e.g., Gay Rights, Religious Freedom, and the LawReligious Freedom v. Gay Rights DebateCatholic-Jewish divide on Supreme Court, and Becket Fund's "score card" regarding the HHS mandate.

My own college, Gordon College, received national publicity because its president signed a letter to President Obama asking for exemption from an executive order against discrimination based upon sexual relationships.  Gordon College is a private school that has retained its traditional Christian understanding of sexuality and marriage, and faculty and dorm supervisors as well as students sign a statement of faith and conduct acknowledging the college's position and agreeing to abide by it.  The college would not hire a faculty member cohabitating with either a man or a woman.  The letter caused a fire storm in higher education in New England.  More here: Inside Higher EdHuffington PostBoston GlobeFirst ThingsNational ReviewWashington Times, and Christianity Today.

The secularizing forces in our country want to require the colleges receiving federal financial aid funds to abide by all regulations applying to corporations doing business with the federal government.  As seen in the dissent in the Hobby Lobby decision last year, this segment of our culture sees little room for a corporation, non-profit or for-profit, to exercise judgment based upon the religious convictions of its board of directors.  Nonetheless, recent court decisions have favored both of the two groups that are clashing: religious organizations (and religious practitioners within corporations) and gay advocates.

Friday, May 29, 2015

Is administrative law unlawful?

The U.S. Supreme Court has approved Congressional delegation of rule-making to agencies such as the EPA, FCC, FDA, FDIC, U.S. Army Corps of Engineers, and IRS, but the rationale is looking tired and overextended as government agents separated by layers of bureaucracy enforce regulations that are loosely based upon the statutes.  Just as often, the agencies enforce "guidelines" they draft as standards for ambiguous statutes and regulations.  Is it reaching a point at which the very nature and power of an administrative agency violates the citizen's right to due process of law?

Philip Hamburger has written extensively on this topic:

Is Administrative Law Unlawful?

Deference to Administrative Interpretation: The Unasked Questions

From Paternalism to Maternalism sans Maternity

In 1966, the University of Georgia defeated the University of Florida in their annual football game in Jacksonville, and a friend of mine attended the game as a member of the Georgia Redcoat Marching Band.  When they returned to campus still jubilant after the long drive home to Athens, they had to telephone the dorm mistress to be let in the door.  In those days, if you came in late without excuse, there was an inquiry and possible consequences.

The practice of in loco parentis died on campus in the late 1960s and early 1970s due to court decisions determining that the students were adults and from the competition of colleges to have as few rules as possible.  Students in dormitories now largely govern themselves, for better and for worse.

Now we have bureaucratic nannies running campus life, and before long we might be looking for sweet old dorm mistresses to replace the residential life "experts" and their codes of conduct.

We used to presume that young women on college campuses (and to a lesser extent, young men) needed protection, and we of my baby-boomer generation were happy to get rid of any, if not all, rules.  If we won the battle, we likely still lost the war.  Campus administrators outnumber the teaching faculty on campus, and they are bringing back a perverted form of PC maternalism to replace the Victorian paternalism of yesterday.

The campus is becoming the most regulated place in America, and the students and faculty have little or no due process.  Free speech is cordoned off to some corner of the quad or student union.  See  "On Trigger Warnings" as published by the American Association of University Professors.

Do we have enough competent people to staff our bureaucracies? (part ii)

The answer based upon experience is no.  Whether you are dealing with health insurance, Social Security, environmental regulations, taxation, airport security, veterans' benefits, banks, or utilities, you find that nine of ten bureaucrats are paid to say no, most are reluctant to tell you who is paid to say yes, and many have no business serving the public.

Could we find an adequate workforce to staff all our bureaucracies?  No.  The regulatory state on all levels has made it virtually impossible for more than a few people to understand the technicalities of many regulated activities, and there will always be a shortage of public servants and customer-service personnel capable of explaining technicalities to the demos.  The American people will never pay to train and maintain such a force, and political correctness and cronyism will continue to poison bureaucracies public and private for the foreseeable future.

The incompetence of bureaucracy to govern in place of understandable and accessible laws is not merely a "conservative" issue, but it goes to the heart of the progressive promise of good government as Philip K. Howard discusses in:

Fixing Broken Government: Put Humans in Charge and
The Rule of Nobody: Saving America from Dead Laws and Broken Government.

Philip Hamburger takes the challenge further: Is Administrative Law Unlawful?  The book is reviewed here in the WSJ.

How to evict and to be evicted in Alabama...

Most renters cannot afford counsel if they are being evicted.  Here is a short summary of Alabama law for landlords and tenants:

How to evict and how to be evicted... and other things you might want to know.