The real reason law schools are raking in cash
The profession's in crisis, but the schools don't care. They're steeped in a toxic, hyper-capitalist worldview
Benjamin Winterhalter
Salon
Nov 24, 2013
Since at least 1985, the American Bar Association’s Section on Legal Education has published annual statistics about the rates of enrollment at American law schools, the costs of attendance, and the eventual employment of law graduates. Looking at how these numbers have changed since the financial crisis of 2008, one thing is clear: Law schools are doing quite well for themselves. Tuition at private law schools has steadily increased, climbing from a mean of $34,298 in 2008 to a mean of $40,634 today – an increase that, by my calculations, outpaces inflation by about $3,000. And although enrollment has declined slightly from its all-time peak of 52,488 new students in 2010, the general trend has been unmistakably positive.
But if you sought information about how law schools weathered the financial storm in the pages of the New York Times, the Wall Street Journal or the Atlantic, I would not have faulted you for coming to the conclusion that they must be undergoing a major crisis. As these publications have tirelessly (and accurately) reported, the picture for law graduates is rather bleak. Student debt is astronomical, with some law students borrowing upwards of $200,000 to finance their educations, and employment prospects are dismal, with even well-established, “white-shoe” law firms being forced to make massive cuts and layoffs.
As a straight value proposition, it seems, it is no longer clear that going to law school makes any sense. So, law schools, one might reasonably expect, surely must be feeling the pressure. College students, one could not be blamed for thinking, surely must be considering other careers. But it has not been thus.
Why? How, in other words, can we explain the fact that young people are still going to law school in droves? How are we to make sense of the fact that so many intelligent college graduates are, to all appearances, deciding to commit financial suicide? The accounting just does not add up.
A couple of answers suggest themselves. First, there is the fact that law school is uniquely positioned to exploit the ambitions of students whose majors do not lead obviously to a particular career. Economic choices, in other words, are not made in a vacuum; we can select only among the finite alternatives that precipitate from our actual pasts. For the upper-middle-class junior at Amherst whose parents are doctors or professors or – say – lawyers, but who always found herself more interested in 19th-century French painting than in computer programming or corporate accounting, law school may be the only way out. The other choices are to move home (obviously shameful) or (gasp!) get a PhD in art history or some equally esoteric field, which – every sensible person she knows will tell her – is thoroughly useless and not very likely to get her a job. Yes, it is true – the various influences in her life will whisper – sadly in our society everyone must become a technician, but becoming a lawyer is becoming a technician with a heart. Justice, fairness, equality – certainly these are worth caring about? And don’t you want to make something of yourself?
Next, there is the fact that the sorts of people who want to go to law school tend to be exactly the sorts of people who think they can beat the odds. There are, in fact, many books on the market warning prospective students not to go to law school. These books bear such ominous titles as “Law School Confidential” and (more simply) “Don’t Go to Law School.” They describe in gory detail the veritable intellectual, emotional and spiritual wringer into which students are about to voluntarily insert their heads. There is, for instance, the Socratic method – a mode of instruction whose sole discernible purpose is to torture students through the elaborate belaboring of obvious points. And there is, for another, the end-of-semester exam, a three-hour rite of passage that is graded anonymously, covers an entire semester’s worth of material, and counts for 100% of one’s grade. But for a certain kind of person – the kind who found the coddling atmosphere at his private schools stultifying, the kind who positively lusts for real competition – it is difficult to imagine a better advertisement for law school. Indeed, the tacit message of these cautionary books might be paraphrased: Don’t go to law school… unless you are just the sort of exceptionally talented smart person who can succeed in a ruthless competition with other smart people.
But there is another obvious question about the discrepancy – the gulf between the continuing financial success of American law schools and the grim financial realities of their graduates – that no one seems to be asking. The prevailing silence, I think, comes from an implicit recognition that to ask the question is to answer it – that to speak the words aloud is to break a very serious taboo. If we start talking about that, everyone seems to know, we will never be able to sleep at night. The monster has been shut away in the closet for good reason.
That question, the one that is so obvious that even thinking about it is deeply painful, is this: Why aren’t law schools ashamed of themselves? Where is their sense of pity, of remorse, of human decency? After all, aren’t the very ideals that law schools purport to teach about – justice, fairness, equality – fundamentally and exactly opposed to this sort of naked capitalist exploitation? In the standard liberal vision of a functioning democracy, isn’t the rule of law supposed to be our salvation from the savagery of the free market? Isn’t the usual story of how our society has come to have meaningful civil rights, to have real restraints on abuses of government power, a story about pivotal triumphs in the legal system? Brown v. Board of Education? Loving v. Virginia? Gideon v. Wainwright? If law schools are selling an education in these values, the lamentable truth can only be that they have failed to practice what they preach.
It might be tempting simply to shrug one’s shoulders and say “Well, people like money.” And lawyers, it seems, are particularly guilty of this vice. The negative stereotypes about the profession – the bumbling fraudster, the ambulance chaser, the greasy-haired, sharp-suited man on TV promising you “the settlement you deserve, and fast!” – exist for a reason. Is it really any surprise that law schools, composed as they are of lawyers, are happy to dip their cup in the river of cash that seems to be flowing their way?
Perhaps not. But this cynical attitude overlooks a deeper, darker truth about law school – one that, unfortunately for entering students and conveniently for law school administrators, requires attending it to fully comprehend. While most people probably have some vague sense of the peculiarities of the law classroom from cultural touchstones like ”The Paper Chase” and ”One L” (or, more recently, “Legally Blonde”), they probably assume that these references are exaggerated and outdated. Which is true enough. But what they – along with John Jay Osborn (who wrote “The Paper Chase”) and Scott Turow (who wrote “One L”) – have missed is that law school’s indifference to student suffering results not from an inexplicable love of torturous methods of instruction, nor from the inevitability of natural human selfishness, but from a profound ideological commitment to a particular version of neoliberal capitalism.
Over the past several decades, by far the dominant intellectual trend among legal scholars has been one called, rather uncreatively, “law and economics” (or usually just “law and econ”). Law and econ was pioneered by two economic theorists, Ronald Coase and Guido Calabresi. Their idea, essentially a distillation of Chicago School economics, is simple but powerful: The utility of legal rules should be analyzed in terms of their ability to promote economically efficient outcomes. And the question of law’s efficacy as a social force is, first and foremost, one of how well its systems of rules and regulations allow the market to function.
Initially only moderately influential, law and econ quickly gained traction when, in the early 1970s, an assertive law professor by the name of Richard Posner – who is now a judge for the Seventh Circuit Court of Appeals – published a book entitled “Economic Analysis of Law.” Posner’s book carried the fundamental law-and-econ thesis to Procrustean comprehensiveness, offering an amateur economist’s take on each and every aspect of the American common-law system. Posner spoke with great eloquence about the efficiencies and inefficiencies of those parts of the legal system that form the groundwork of the first-year curriculum at literally every American law school: contracts, torts and property. Posner’s efforts were further buoyed by the work of legal scholar and political scientist Lee Epstein, who turned the behavioral and empirical modeling techniques of economics on judicial thinking itself.
Posner’s underlying idea – that understanding why the rules are what they are is a matter of understanding whether they promote economic efficiency – is now so deeply ingrained in the teaching at U.S. law schools that it is regarded as dogma. Law and econ, that is, is not presented as one among many possible theoretical orientations one could have toward the law, but as a set of truths to be memorized. Law professors recite chapter and verse from Posner and Epstein as though their conclusions represented objective, undeniable facts about how the world has to function if things are going to run smoothly. Rather than subjects for examination and discussion about which students are invited to take a position, the law-and-econ position about, say, contracts is presented as part of the “material” that students must ingest and eventually regurgitate. Posner has argued, for instance, that courts should choose rules for interpreting contracts by figuring out what approach maximizes financial rewards between the parties. In one of his tiresome articles, he even writes out a little “equation” for this purpose – to interpret the contract correctly, Your Honor, just use good old C = x + p(x)[y + z + e(x, y, z)]! And those professors who do not actually assign his writings will simply take his approach for granted. The implication is clear: The debate, if ever there was one, has ended, and the economists have won.
If you need proof of law and econ’s influence, just ask any weary twenty-something lugging around a needlessly expensive torts casebook. Most of the cases in that book are followed by an arcane and confusing set of “notes,” which ask pointless rhetorical questions and propound overlong lists of citations to law review articles that no one – least of all the casebook authors – will ever read. Without fail, the questions will encourage you to wonder whether another rule might not lead to increased market efficiency. And invariably, many of the citations in those long lists will be to Posner or one of his many disciples – he is, in fact, the single most cited legal scholar of all time.
It is not as though there are no well-meaning liberals – and some holdout proponents of “Critical Legal Studies,” the left-wing alternative to law and econ – at American law schools. There are plenty. But aside from the easily-memorized-and-parroted set of rules that comprise the actual law, and aside from some basic, practical skills about constructing a legal argument, what most students take from the first year of law school is that their intuitions about justice, fairness and equality are hopelessly naïve; that the relevant consideration is the smooth functioning of the market; and that the point of a life in the law is to oil the machine. Law school tells them that their beliefs about social justice are silly; their simplistic moral views untrustworthy; and their ways of talking insufficiently precise. And all of this is conveyed as though it represented some universally accepted, decidedly modern, and – indeed – scientific consensus about how we should think about legal systems. Students cannot help but perceive that, with the exceptions of a handful of reactionary holdouts and Marxist cranks, everyone seems to agree. At no point will they be let in on the secret that law and econ is merely a modeling technique; that there are other ways to conceive of law’s influence and social possibilities; and that economic explanations like Posner’s rely on a heavily debated set of theoretical assumptions.
While it is true that today’s law schools are, by and large, nowhere near as bad anything in “The Paper Chase,” the rigidly hierarchical structure of law classes, where the professor is permitted endless liberties and students are expected to endure equally endless abuse, only serves to reinforce the core message: Things have to be more or less the way they are. Despite its arbitrariness, the market (like law school) picks winners and losers neutrally, and where it fails to, the goal is to reduce the amount of noise by tweaking the rules that govern it. Our socioeconomic system (like law school) is basically meritocratic – or as nearly meritocratic as possible given the constraints of the real world. And the division of economic rewards that system generates are fundamentally just – or as nearly just as possible given the unfortunate realities of life in the marketplace.
The law curriculum, thus, does a double disservice: First, it obscures the workaday practice of law by cloaking it in a ridiculous shroud of technical complexity, when in fact the best and easiest way to learn the skills of practice is simply to try them yourself. And second, it obscures the nature of legal theory as a mode of intellectual inquiry, instead teaching students to uncritically accept the central premises of neoliberal economics as a somehow post-ideological social order. Students come away both unprepared for anything but apprenticeship at an established law firm, where they will come to understand what lawyers actually do, and disaffected and bored with theoretical discourse about law. As any law student knows, the “discussion” in most law classes is tedious and irrelevant – only the exam matters. Indeed, law students often get angry at their peers for evincing anything like genuine interest in a classroom conversation, since most people in the 100-person lecture hall are – quite justifiably – just wondering when it will finally end.
In short, the answer to the question “Why aren’t law schools ashamed of themselves?” is that most of their professors have been disabused of their beliefs in justice, fairness and equality; they do not see things as their bright-eyed-and-bushy-tailed first-year students do. They have accepted, instead, the law-and-econ formulation of these values: markets, efficiency and capitalism. It is a strange and frustrating situation: The only people who might have interesting thoughts about how law can function for the betterment of society are those who do not yet know enough about law to have an informed opinion.
I am not, of course, the first person to notice this terrible and distressing reality. In 1982, Harvard law professor Duncan Kennedy wrote an article entitled “Legal Education and the Reproduction of Hierarchy: A Polemic Against the System.” Kennedy’s piece describes, in revelatory detail, how every aspect of the law curriculum – down to the physical placement of seats in the lecture hall – is arranged to convey its conservative message about what law is and how it works. Despite the pretentions of objectivity and neutrality provided by the economists’ vernacular, Kennedy observes, law schools remain “intensely political places.” He so neatly summarize the entire situation today that it’s scary: “The trade-school mentality, the endless attention to trees at the expense of forests, the alternating grimness and chumminess of focus on the limited task at hand – all these are only part of what is going on. The other part is ideological training for willing service in the hierarchies of the corporate welfare state.” When I stumbled across these words during my own third year of law school, I found it physically impossible to stop my head from nodding in agreement. If you are young, smart and liberal, and are considering going to law school, read Kennedy’s piece first. It is as true today as the day it was written.
There is, however, a final question: Why aren’t the thousands of unemployed, over-indebted and disaffected young lawyers doing anything about the situation? Why, that is, have they not gone back to their law schools to seek relief, to demand recompense, or at the very least throw rocks? There have been some attempts to sue law schools for publishing misleading employment figures, and some attempts by the Bar to rein in overeager admissions offices, but these efforts were mostly ineffectual (in the case of the lawsuits, largely because they were ill-conceived). By and large, the response among young attorneys has been one of resignation and glum acceptance of their sorry fates.
Kennedy’s answer to my question is simple and compelling. For most students, the ideological training “takes” – like a plant in new soil. So when they find themselves enduring tough economic times, they assume that, other than grab hold of their bootstraps, there is nothing they can do. As they learned so many times in law school, the market wants what it wants, and it seems – at least at the present moment – not to want them. Since the market, the organ of social judgment, the grumbling gut of a hungry nation, has spoken, there is nothing for them to do but listen. To try, in other words, to make the best of it, all while sensing – if the plant has truly put down roots – the unavoidable conclusion of the law-and-econ doctrines: they deserve their fates.
I think, though, that there is another, simpler reason that law grads aren’t striking back. Lashing out at law school means admitting certain truths about their own lives that are too hard to face: That many of the people they trusted to provide them with meaningful, honest instruction about the law failed them. That the purpose of the harsh methods of instruction was not teach them the rigors of being a lawyer, but to rank and sort them ever more finely. That the ranking process then fulfilled the prophecies of the free-market ideology they absorbed, as the best-performing among them were rewarded, even in tough economic times, with clerkships, prestigious summer internships and – eventually – high-paying positions at big firms. That their own reasons for going to law school were less than completely altruistic – that they did, in fact, want to make something of themselves. That they still, despite their hand-wringing about the unfairness of it all, live in circumstances of enormous wealth and privilege. To strike back, that is, is to admit all the contradictions and injustices of the very system that produced you. It means, in other words, turning against yourself. What is there to do, then, but stare blankly out the window of the downtown office over the cityscape, as the sun splatters a gorgeous blood red against the evening clouds, and wonder what to do about the injustice?
Sunday, November 24, 2013
Saturday, November 16, 2013
Marissa Alexander Is Given No Bail Today - New Evidence Comes To Court
"Ironically, the same state attorney that failed to successfully prosecute George Zimmerman, is the same attorney that sent Marissa Alexander to prison. State Attorney Angela Corey 'twisted the knife' by refusing to drop Alexander's case,even after it was overturned in September."
Updated: Marissa Alexander Is Given No Bail Today - New Evidence Comes To Court
by Leslie Salzillo
Daily Kos
Nov 13, 2013
Marissa Alexander, the Florida woman who was sentenced to 20 years for firing a warning shot to ward off her abusive husband, was granted no bail Wednesday afternoon in a Jacksonville courtroom. The mother of three will most likely not get to spend Thanksgiving or Christmas with her children, as the 'deciding judge' opted to make no decision and set another hearing for January 15, 2012 - pending of course, that he does, or does not, change his mind.
In 2010, just days after giving birth, Marissa Alexander fired a warning shot in self-defense to keep her abusive husband, Rico Gray, from attacking her. In his deposition, Gray who has a history of abusing Alexander, admitted it, stated he intended to hurt her had she not fired the warning shot, and said she did the right thing. He also said Alexander did not aim he gun at him. Gray then changed his story once the case went to trial. He walked out a free man - Marissa Alexander, the battered wife, received 20 years. The Florida Stand Your Ground Law did not work for Alexander because she fired a warning shot. Had she shot and killed Rico Gray that day, she would have most likely served no time at all.
My source who was in the courtroom today, reported new evidence has been brought forth - a text message of Rico Gray asking Marissa to come over for sex while there was an order of protection. Rico Gray claims Marissa should not be let out on bond because he is afraid of Marissa; he fears/feared for his life. Does asking her for sex sound like someone who feared for his life?
“I was in a rage. I called her a whore and bitch and . . . I told her, you know, I used to always tell her that, if I can’t have you, nobody going to have you. It was not the first time of ever saying it to her.”~ Rico Gray in his deposition on November 22, 2010.
Again, does this sound like a man fearing for his life?
Marissa Alexander's case has been highly publicized from the start, and the Free Marissa Now campaign has grown throughout social media. The case was catapulted into even more national spotlight, following the George Zimmerman case. In July 2013, Zimmerman was set free after killing teenager, Trayvon Martin, even though Zimmerman was the aggressor. Ironically, the same state attorney that failed to successfully prosecute George Zimmerman, is the same attorney that sent Marissa Alexander to prison. State Attorney Angela Corey 'twisted the knife' by refusing to drop Alexander's case,even after it was overturned in September.
Unless something changes, it doesn't look as though Marissa Alexander and her three children will be having happy holidays, as she awaits a new bail hearing, and then a whole new trial in March 2014. Supposedly the next trial will be different. This time, Florida courts say the burden of proof will be placed upon them rather than Marissa Alexander. Isn't that how it's supposed to work, Florida?
If you're in an abusive relationship, or know someone who may be, there is help: Call: 800-799-SAFE/National Domestic Violence Hotline or Call: 800-656-HOPE/RAINN (Rape,Abuse, & Incest National Network)
Updated: Marissa Alexander Is Given No Bail Today - New Evidence Comes To Court
by Leslie Salzillo
Daily Kos
Nov 13, 2013
Marissa Alexander, the Florida woman who was sentenced to 20 years for firing a warning shot to ward off her abusive husband, was granted no bail Wednesday afternoon in a Jacksonville courtroom. The mother of three will most likely not get to spend Thanksgiving or Christmas with her children, as the 'deciding judge' opted to make no decision and set another hearing for January 15, 2012 - pending of course, that he does, or does not, change his mind.
In 2010, just days after giving birth, Marissa Alexander fired a warning shot in self-defense to keep her abusive husband, Rico Gray, from attacking her. In his deposition, Gray who has a history of abusing Alexander, admitted it, stated he intended to hurt her had she not fired the warning shot, and said she did the right thing. He also said Alexander did not aim he gun at him. Gray then changed his story once the case went to trial. He walked out a free man - Marissa Alexander, the battered wife, received 20 years. The Florida Stand Your Ground Law did not work for Alexander because she fired a warning shot. Had she shot and killed Rico Gray that day, she would have most likely served no time at all.
My source who was in the courtroom today, reported new evidence has been brought forth - a text message of Rico Gray asking Marissa to come over for sex while there was an order of protection. Rico Gray claims Marissa should not be let out on bond because he is afraid of Marissa; he fears/feared for his life. Does asking her for sex sound like someone who feared for his life?
“I was in a rage. I called her a whore and bitch and . . . I told her, you know, I used to always tell her that, if I can’t have you, nobody going to have you. It was not the first time of ever saying it to her.”~ Rico Gray in his deposition on November 22, 2010.
Again, does this sound like a man fearing for his life?
Marissa Alexander's case has been highly publicized from the start, and the Free Marissa Now campaign has grown throughout social media. The case was catapulted into even more national spotlight, following the George Zimmerman case. In July 2013, Zimmerman was set free after killing teenager, Trayvon Martin, even though Zimmerman was the aggressor. Ironically, the same state attorney that failed to successfully prosecute George Zimmerman, is the same attorney that sent Marissa Alexander to prison. State Attorney Angela Corey 'twisted the knife' by refusing to drop Alexander's case,even after it was overturned in September.
Unless something changes, it doesn't look as though Marissa Alexander and her three children will be having happy holidays, as she awaits a new bail hearing, and then a whole new trial in March 2014. Supposedly the next trial will be different. This time, Florida courts say the burden of proof will be placed upon them rather than Marissa Alexander. Isn't that how it's supposed to work, Florida?
If you're in an abusive relationship, or know someone who may be, there is help: Call: 800-799-SAFE/National Domestic Violence Hotline or Call: 800-656-HOPE/RAINN (Rape,Abuse, & Incest National Network)
Monday, October 7, 2013
District Attorney candidate Robert Brewer basks in the admiration of Dan Shinoff and Leslie Devaney
Robert Brewer
Leslie Devaney's and Dan Shinoff's endorsements of Robert Brewer can be found HERE.
“I have had the great privilege of knowing Mr. Brewer for over 30 years. He is an outstanding individual who is the consummate professional who treats everyone he deals with with great respect and always is a person of tremendous integrity. The County would be most fortunate to have Robert Brewer as District Attorney.”
Daniel R. Shinoff
STUTZ ARTIANO sHINOFF & HOLTZ
I imagine Mr. Shinoff is quite incensed at Bonnie Dumanis for indicting his clients Manuel Paul, Bertha Lopez, and others at Southwestern College, Sweetwater Union High School District, and San Ysidro School District.
Of course, it's sort of strange that Dan Shinoff feels he has to muzzle a retired teacher in order to protect his own reputation as person of integrity. (See my San Diego Education Report blog posts re Stutz v. Larkins.) Does Mr. Shinoff really think that people who have known him for years will think his ethics are questionable just because of something I say? Most of the facts that I discuss have been published in newspapers, or at least in court documents, and few people read my websites, anyway. Why does Mr. Shinoff see me as a threat to his reputation?
Wednesday, August 28, 2013
Judge beleives that disturbed 14-year-old who later killed herself was "as much in control of the situation" as male teacher who had sex with her
Does this look like the face of a person with the sexual sophistication of a fourteen-year-old? This teacher, and the judge in his case, apparently agreed that since 14-year-old girl had already had sex, the teacher wouldn't be causing any more harm by getting a piece of the action. Others think the teacher took advantage of a disturbed child who ended up killing herself. I wonder if he could have made a difference if he had involved himself in her life in a more positive way.
UPDATE: New opinion piece by Meteor Blades
Unfit judge rules rape victim who killed herself 'was as much in control of the situation' as rapist
by Meteor Blades
Daily Kos
Aug 28, 2013
Outrage is growing against a Billings, Montana, judge who handed down a 30-day sentence to a rapist teacher and said the victim, who had killed herself, "was as much in control of the situation" as the teacher—35 years her senior at the time—because she was “older than her chronological age.” Prosecutors had sought a 20-year sentence in the case, with 10 years suspended. District Judge G. Todd Baugh imposed a 15-year sentence and suspended all but 31 days of it, with one day credited for time already served. The judge noted that the crime "did not warrant a lengthy sentence."
Whatever other rulings the 66-year-old Baugh has made during his time on the bench, that one makes him unfit to serve a single day longer.
The outrage began when the girl's mother, Auliea Hanlon, upon hearing the judge's ruling, stormed out of the courtroom repeatedly screaming "You people suck!" She had testified that the sexual relationship between her 14-year-old daughter and high school teacher Stacey Dean Rambold, then 49, had been a major factor in the girl's suicide a few weeks before her 17th birthday. Talk of the case on the internet and coverage in various traditional media have multiplied Hanlon's outrage far and wide.
Organizers plan a rally and protest for Thursday in a park next to the Yellowstone County Courthouse against District Judge G. Todd Baugh. A petition seeking his removal from the bench has been post online.
The case began in 2008 when Stacey Rambold, now 54, a high school teacher who four years earlier had been warned not to touch or be alone with female students, was discovered to be having a relationship with Cherice Morales, a 14-year-old student. He was arrested and initially pleaded guilty to a single felony charge. He was placed on paid leave from his teaching job, soon resigned and was forced to give up his teaching credential. In October 2008, he was charged with three counts of sexual intercourse without consent. The age of consent in Montana is 16. But before the case came to trial, Cherice killed herself, complicating things for the prosecution.
A settlement was reached. Rambold was granted deferred prosecution and ordered to complete a sexual offender treatment program after which the charges would be dropped. He finished the first two of the program's three phases. But then he stopped coming to sessions. It was learned that he was having unsupervised visits with minors and had begun a sexual relationship with an adult without telling the program's supervisors. "The violations were serious enough when taken together to kick Rambold out of the program, although it was learned that the minors Rambold was visiting were family members." Of course, sexual offenders never ever prey on family members...
Former teacher in Montana gets 30 days in jail for raping student who later committed suicide
By Associated Press
August 27, 2013
BILLINGS, Mont. — A former Billings Senior High School teacher who pleaded guilty to raping a 14-year-old student who later killed herself has been sentenced to 30 days in jail by a judge who said the victim was “older than her chronological age” and “as much in control of the situation” as the teacher.
District Judge G. Todd Baugh sentenced Stacey Dean Rambold to 15 years in prison for sexual intercourse without consent, with all but 31 days suspended. He gave Rambold credit for one day already served, The Billings Gazette reported (http://bit.ly/1dmuHZo ).
The girl’s mother repeatedly screamed, “You people suck!” and stormed out of the courtroom Monday.
Rambold, now 54, was charged in October 2008 with three counts of sexual intercourse without consent alleging that he had an ongoing sexual relationship with Cherice Morales, starting the previous year when she was 14.
Morales took her own life in February 2010 while the case was pending.
In July 2010, Rambold entered a three-year deferred prosecution agreement with prosecutors that said the charges would be dismissed if Rambold completed a sex offender treatment program and met other conditions, including having no contact with children. He also admitted to one rape charge.
The case was revived last December when prosecutors learned Rambold had been terminated from the sex offender treatment program.
Treatment provider Michael Sullivan said Rambold started missing meetings in August 2012, but Sullivan said he met with Rambold and he appeared to be back on track with his treatment.
Rambold was terminated from the program in November when it was learned that he had been having unsupervised visits with minors, who were family members, and did not inform counselors that he had been having sexual relations with a woman.v Defense attorney Jay Lansing said Rambold has since continued his treatment with a different program and an evaluation found him at low risk to re-offend.
Baugh said he was not convinced that the reasons for Rambold’s termination from treatment were serious enough to warrant the 10-year prison term prosecutors recommended.v The judge said he listened to statements given by Morales before her death and believed that while she was a troubled youth, she was “as much in control of the situation” as Rambold and was “older than her chronological age.”
Yellowstone County Attorney Scott Twito told The Associated Press on Tuesday that he would not appeal the judge’s sentence.
“We respect the court’s sentencing decision. We obviously disagree with it, based on the recommendations my attorneys made, but it appears to be legally permissible,” he said.
Asked about Baugh’s reasoning that a 14-year-old girl below the state’s age of consent had an equal share of control of the relationship, Twito declined to answer directly.
“The judge’s reasons are his reasons and his reasons alone. He has broad authority under state law, given the proper criteria,” Twito said.
The case resulted in a $91,000 wrongful death settlement between the school district and Morales’ family.
Rambold reached a confidential settlement with the girl’s family.
Mont. judge apologizes for comments in teen's rape
By MATT VOLZ and MATTHEW BROWN
Associated Press
August 28, 2013
ILLINGS, Mont. (AP) — A Montana judge apologized Wednesday for saying a 14-year-old rape victim was "older than her chronological age" and had as much control of the situation as the teacher who raped her — remarks that prompted protests and a petition for his resignation.
District Judge G. Todd Baugh made the comments Monday while sentencing former Billings Senior High School teacher Stacey Rambold to a 15-year prison sentence then suspending all but 31 days and giving him credit for one day already served.
...Faced with backlash over his comments and the sentence that protesters considered too light, Baugh wrote an apology in a brief letter to the editor to The Billings Gazette. The newspaper provided a copy of the apology to The Associated Press.
"I'm not sure just what I was attempting to say but it did not come out correct," he wrote. "What I said is demeaning of all women, not what I believe and irrelevant to the sentencing. My apologies to all my fellow citizens."
"I will add an addendum to the court file to hopefully better explain the sentence," he added.
A protest scheduled for Thursday outside Yellowstone County Courthouse will go on despite the apology, said organizer Sheena Rice, stressing that it's important for the community to show it is not going to stand for victim blaming.
"I'm glad he apologized, but he should have known better as a judge," Rice said. "The fact that he said it makes me think he still believes it."
A petition will be circulated at the protest calling for Baugh's resignation. An online version of the petition had more than 8,500 signatures by Wednesday morning.
If the petition and protest aren't enough to force Baugh's resignation, protesters will shift to defeating him in the 2014 election, Rice said.
He was first elected to the bench in 1984 and has been re-elected every six years since then without an opponent.
Rambold was charged in October 2008 with three counts of sexual intercourse without consent after authorities alleged he had an ongoing sexual relationship with Cherice Moralez, starting the previous year when she was 14. Moralez killed herself in 2010 at age 16 while the case was pending.
The girl's mother, Auleia Hanlon, said in a statement to the Gazette that she no longer believes in justice after Baugh's sentence and remarks about her daughter.
"She wasn't even old enough to get a driver's license. But Judge Baugh, who never met our daughter, justified the paltry sentence saying she was older than her chronological age," Hanlon said. "I guess somehow it makes a rape more acceptable if you blame the victim, even if she was only 14."
Under state law, children younger than 16 cannot consent to sexual intercourse.
Monday, August 26, 2013
The Roberts Court is taking from ordinary Americans rights they have enjoyed for a very long time
"[T]he Roberts Court is unusually willing to take from ordinary Americans rights they have enjoyed for a very long time. The Supreme Court has a long history of standing athwart history yelling stop. This Supreme Court, however, wants to shift history into reverse."
Justice Ginsburg’s Terrifying Assessment Of Her Own Court
By Ian Millhiser
Thinkprogress.org
August 26, 2013
In an interview with the New York Times’ Adam Liptak, Justice Ruth Bader Ginsburg offered a grim assessment of the Court where she so often finds herself leading a four justice dissent — the Roberts Court is “one of the most activist courts in history.”
As an historic matter, this is a pretty staggering claim. The Supreme Court in 1905 handed down a decision called Lochner v. New York that is now widely taught in American law schools as an example of how judges should never, ever behave. Lochner treated any law improving workplace conditions or helping workers to obtain an adequate wage as constitutionally suspect. And Lochner was hardly an anomalous moment in the Court’s history.
Thirteen years after Lochner the Supreme Court struck down federal child labor laws in a decision that is also widely taught as an example of inexcusable judicial activism. In 1895, the Supreme Court rendered the country virtually powerless against monopolies and other powerful combinations of corporate power, and then it held an income tax on the wealthiest Americans unconstitutional just a few months later. The Supreme Court has, with rare exception, been a largely malign force in American history.
There is, however, one important way in which the Roberts Court is distinguishable from the Courts that decided cases such as Lochner. Laws such as the Sherman Antitrust Act and the first federal ban on child labor arose as lawmakers with struggling with many of the negative side effects of the Industrial Revolution. The birth of the railroad and the dawn of mass production massively improved the American standard of living, but they also enabled monopolists to thrive and they resulted in mass exploitation of the working class. The Supreme Court in this era did not so much tear down established rights as it stood for a status quo that favored capital over labor and the rich over the rest of the nation.
The Roberts Court, by contrast, has actively rolled back existing laws protecting workers, women and people of color. The Nineteenth Century Supreme Court blocked America’s first meaningful efforts at racial equality, but the Roberts Court stole from minority voters rights that they had enjoyed for decades. The Lochner Court strangled basic protections for workers in their crib, but the Roberts Court takes fully matured protections for workers and carves them up a piece at a time. And, while Lochner Era courts acted out in the open, undermining human rights in published opinions. the Roberts Court pushes an alternative, corporate-run arbitration system that operates largely in secret.
None of this is to say that the world we live in now is worse than the world our great-grandparents lived in under the Lochner Court — if the Roberts Court’s goal is to bring us back to this era, they are currently shy at least one vote. Nevertheless, the Roberts Court is unusually willing to take from ordinary Americans rights they have enjoyed for a very long time. The Supreme Court has a long history of standing athwart history yelling stop. This Supreme Court, however, wants to shift history into reverse.
Justice Ginsburg’s Terrifying Assessment Of Her Own Court
By Ian Millhiser
Thinkprogress.org
August 26, 2013
In an interview with the New York Times’ Adam Liptak, Justice Ruth Bader Ginsburg offered a grim assessment of the Court where she so often finds herself leading a four justice dissent — the Roberts Court is “one of the most activist courts in history.”
As an historic matter, this is a pretty staggering claim. The Supreme Court in 1905 handed down a decision called Lochner v. New York that is now widely taught in American law schools as an example of how judges should never, ever behave. Lochner treated any law improving workplace conditions or helping workers to obtain an adequate wage as constitutionally suspect. And Lochner was hardly an anomalous moment in the Court’s history.
Thirteen years after Lochner the Supreme Court struck down federal child labor laws in a decision that is also widely taught as an example of inexcusable judicial activism. In 1895, the Supreme Court rendered the country virtually powerless against monopolies and other powerful combinations of corporate power, and then it held an income tax on the wealthiest Americans unconstitutional just a few months later. The Supreme Court has, with rare exception, been a largely malign force in American history.
There is, however, one important way in which the Roberts Court is distinguishable from the Courts that decided cases such as Lochner. Laws such as the Sherman Antitrust Act and the first federal ban on child labor arose as lawmakers with struggling with many of the negative side effects of the Industrial Revolution. The birth of the railroad and the dawn of mass production massively improved the American standard of living, but they also enabled monopolists to thrive and they resulted in mass exploitation of the working class. The Supreme Court in this era did not so much tear down established rights as it stood for a status quo that favored capital over labor and the rich over the rest of the nation.
The Roberts Court, by contrast, has actively rolled back existing laws protecting workers, women and people of color. The Nineteenth Century Supreme Court blocked America’s first meaningful efforts at racial equality, but the Roberts Court stole from minority voters rights that they had enjoyed for decades. The Lochner Court strangled basic protections for workers in their crib, but the Roberts Court takes fully matured protections for workers and carves them up a piece at a time. And, while Lochner Era courts acted out in the open, undermining human rights in published opinions. the Roberts Court pushes an alternative, corporate-run arbitration system that operates largely in secret.
None of this is to say that the world we live in now is worse than the world our great-grandparents lived in under the Lochner Court — if the Roberts Court’s goal is to bring us back to this era, they are currently shy at least one vote. Nevertheless, the Roberts Court is unusually willing to take from ordinary Americans rights they have enjoyed for a very long time. The Supreme Court has a long history of standing athwart history yelling stop. This Supreme Court, however, wants to shift history into reverse.
Thursday, August 22, 2013
From The Onion: Judge Rules White Girl Will Be Tried As Black Adult
This story is hilarious and heartbreaking at the same time.
Judge Rules White Girl Will Be Tried As Black Adult (VIDEO)
The Onion
The court ruled a white teen who stabbed a classmate to death will face the jury as a 300-pound black man.
See video here: Judge Rules White Girl Will Be Tried As Black Adult
Friday, August 9, 2013
Those who passed the bar exam have failed to create a just legal system; it's time to let other experts practice law
“'This is the 50th anniversary of Gideon,' said Shapiro, referring to the landmark 1963 Gideon v. Wainwright Supreme Court decision requiring states to provide lawyers to criminal defendants who can’t afford one.
'If this continues, there won’t be anyone to hear Gideon’s trumpet,' she said.
"Chief Judge Jonathan Lippman of the New York Court of Appeals, the highest court in that state, suggested the Gideon approach of publicly paid lawyers should be applied to some civil cases.
"He proposed that other changes, such as greater use of expert non-lawyers, should also be considered."
Deep Cuts To Court Funding Make CA Chief Justice “afraid to see the future”
San Francisco Appeal
August 9, 2013
The chief justices of California, Texas and New York and three federal judges deplored funding cuts and other roadblocks to public access to justice at an American Bar Association meeting in San Francisco Thursday.
California Supreme Court Chief Justice Tani Cantil-Sakauye said she had reluctantly supported some increases in court fees as “desperate measures” in the face of deep funding cuts that have resulted in the closure of 40 courthouses and 77 courtrooms statewide.
“When it comes to keeping courts open, if these aren’t desperate measures, I’m afraid to see the future,” she said.
Cantil-Sakauye and the five other judges spoke at a session entitled “Are Courts Dying? The Decline of Open and Public Adjudication” on the first day of the ABA’s annual meeting at Moscone Center West.
About 8,000 lawyers and guests are attending the meeting, which continues through Tuesday.
The judges said public access to courts is impaired not only by funding cuts but also by the high cost of lawyers in civil cases and the so-called “outsourcing” of adjudication.
Examples of outsourcing, they said, are the use of private judges for those who can afford it and the use of mandatory, closed-door arbitration instead of open courts to resolve consumer disputes.
“There are reports that 75 percent of the people in our state can’t afford a lawyer” in civil cases, said Texas Supreme Court Chief Justice Wallace Jefferson.
“There are people who have been denied their rights who will just give up,” he said.
U.S. District Judge Norma Shapiro of Philadelphia and retired U.S. District Judge Royal Furgeson of Dallas said funding cuts are hurting federal as well as state courts.
They said the current U.S. budget sequestration is resulting in reductions in federal public defenders, limits on auxiliary services such as probation supervision and delays in needed technology upgrades.
“This is the 50th anniversary of Gideon,” said Shapiro, referring to the landmark 1963 Gideon v. Wainwright Supreme Court decision requiring states to provide lawyers to criminal defendants who can’t afford one. “If this continues, there won’t be anyone to hear Gideon’s trumpet,” she said.
Chief Judge Jonathan Lippman of the New York Court of Appeals, the highest court in that state, suggested the Gideon approach of publicly paid lawyers should be applied to some civil cases. He proposed that other changes, such as greater use of expert non-lawyers, should also be considered...
"Chief Judge Jonathan Lippman of the New York Court of Appeals, the highest court in that state, suggested the Gideon approach of publicly paid lawyers should be applied to some civil cases.
"He proposed that other changes, such as greater use of expert non-lawyers, should also be considered."
Deep Cuts To Court Funding Make CA Chief Justice “afraid to see the future”San Francisco Appeal
August 9, 2013
The chief justices of California, Texas and New York and three federal judges deplored funding cuts and other roadblocks to public access to justice at an American Bar Association meeting in San Francisco Thursday.
California Supreme Court Chief Justice Tani Cantil-Sakauye said she had reluctantly supported some increases in court fees as “desperate measures” in the face of deep funding cuts that have resulted in the closure of 40 courthouses and 77 courtrooms statewide.
“When it comes to keeping courts open, if these aren’t desperate measures, I’m afraid to see the future,” she said.
Cantil-Sakauye and the five other judges spoke at a session entitled “Are Courts Dying? The Decline of Open and Public Adjudication” on the first day of the ABA’s annual meeting at Moscone Center West.
About 8,000 lawyers and guests are attending the meeting, which continues through Tuesday.
The judges said public access to courts is impaired not only by funding cuts but also by the high cost of lawyers in civil cases and the so-called “outsourcing” of adjudication.
Examples of outsourcing, they said, are the use of private judges for those who can afford it and the use of mandatory, closed-door arbitration instead of open courts to resolve consumer disputes.
“There are reports that 75 percent of the people in our state can’t afford a lawyer” in civil cases, said Texas Supreme Court Chief Justice Wallace Jefferson.
“There are people who have been denied their rights who will just give up,” he said.
U.S. District Judge Norma Shapiro of Philadelphia and retired U.S. District Judge Royal Furgeson of Dallas said funding cuts are hurting federal as well as state courts.
They said the current U.S. budget sequestration is resulting in reductions in federal public defenders, limits on auxiliary services such as probation supervision and delays in needed technology upgrades.
“This is the 50th anniversary of Gideon,” said Shapiro, referring to the landmark 1963 Gideon v. Wainwright Supreme Court decision requiring states to provide lawyers to criminal defendants who can’t afford one. “If this continues, there won’t be anyone to hear Gideon’s trumpet,” she said.
Chief Judge Jonathan Lippman of the New York Court of Appeals, the highest court in that state, suggested the Gideon approach of publicly paid lawyers should be applied to some civil cases. He proposed that other changes, such as greater use of expert non-lawyers, should also be considered...
Sunday, August 4, 2013
Superior Court Judge Cline retires after 15 years
Judge Richard Cline.
Superior Court Judge Cline retires after 15 years
By Daily Transcript Staff Report
July 31, 2013
San Diego Superior Court Judge Richard Cline announced his retirement Wednesday, capping a 15-year career on the bench. His last day will be Friday.
Cline is well-known in the North County, having spent his legal career in that region before joining the bench.
Prior to his judicial career, he was an associate at the Law Offices of Richard D. Ring and then partner at Ring and Cline Law Firm in Vista. He also served as the president of the North County Bar Association.
Cline was appointed to the Municipal Court in September 1998 by then-Gov. Pete Wilson and then joined the Superior Court three months later.
While he has spent the majority of his judicial career in probate court, Cline has presided over criminal and civil cases as well.
During his tenure on the bench, Cline has spearheaded such community outreach projects as Youth in Court Day and the On My Honor programs -- both designed to expose students to courtroom procedure.
In addition, he has worked with California State University, San Marcos to develop the On My Honor Teachers Institute. The institute provides training statewide to elementary and high school teachers in an effort to enhance understanding of the state judicial system.
"It quickly became apparent that many of the citizens throughout our community had an inaccurate and grossly incomplete understanding of the role and operation of the court and the third branch of government," Cline said. "Much of this problem is traceable to the skewed information presented by the media, especially television. Many of my colleagues share this view. I decided I could do my part in educating the public through youth outreach programs."
A 1965 graduate of Claremont Men’s College (now Claremont McKenna College), Cline served from Ensign to Lieutenant in the U.S. Navy from 1965 to 1972. He received his law degree from University of San Diego School of Law in 1973.
Cline has both chaired and served on numerous committees for the Center for Judicial Education and Research, where he also served as faculty. In addition, he received a statewide “Ralph N. Kleps Award” for his work on the On My Honor program.
“Judge Cline’s outstanding community service work demonstrated his commitment to educating the public about the justice system," said Presiding Judge Robert Trentacosta. "It will be a fitting tribute to Judge Cline’s legacy for our court to continue this important outreach.”
Video and update on "M. E. Thomas", the lawyer in a wig who claims to be a sociopath; BYU law school is not amused
See original post HERE.
Dr. Phil thinks "M. E. Thomas" (above), the pseudonymous law professor who appeared recently on his program, might be perpetrating a scam.
I would say she's pulling off a cool trick--but not necessarily a scam. Her clever trick is to tell the truth--or something pretty close to it.
Sometimes it's hard to tell the difference between a narcissist and a sociopath. Many, if not most, people are skilled at rationalizing their own bad behavior. Isn't it possible that people's ability to feel guilt varies from high to low, and would show up as a bell-shaped curve if we were to create a graph of how this trait is distributed across the population? Wouldn't the graph look pretty much like the graphs of our heights, weights, and IQs?
It's perfectly believable that Ms. "Thomas" ranks quite low on the scale of ability to feel guilt.
It's not illegal to be a sociopath. It's not even considered a mental illness. You only lose points in your mental health score if you sabotage yourself; it's considered normal, apparently, to sabotage others. I think the biggest factor undermining her claim is that she does sabotage herself. Either way, sociopath or narcissist, she seems to have calculated that she can get rich and famous by simply being herself, so why not?
If you see 100 people today, you'll probably catch a glimpse of a few sociopaths. One or more of them might even work with you. If you're at a meeting with as few as 10 CEOs, you will probably be sharing the room with a sociopath.
The problem is that the legal profession is not tolerant of discussions of its ruthlessness. But perhaps this Mormon female law professor barred in CA, who is likely Jamie Lund, is tired of being a law professor and wants to be a celebrity/author instead. Plus, she'll have a very interesting case if Brigham Young University fires her.
The Author of ‘Confessions of a Sociopath’ Might Be This Law Professor
By Elie Mystal
Above the Law
17 May 2013
It appears that a lot of you would like to know which law professor authored the “Confessions of a Sociopath” summary and book that we discussed yesterday. I guess it’s news if it appears that one of your law professors has gone on television to say that she might murder someone. Sources have come forward about the author’s possible identity, so we’ll share with you what we’re being told while noting that the anonymous author hasn’t yet officially come forward.
It seems that donning a wig and going on Dr. Phil to talk about your sociopathic thoughts doesn’t protect your identity as much as one would think
[Note the UPDATE after the jump....]
Let’s start with the video tape. Multiple sources and commenters reported that the the woman in the second half of this Dr. Phil promo is a law professor in Texas. Her segment on Dr. Phil is called “Confessions of the Sociopath” which is exactly the same title of the article from Psychology Today. The alleged professor shows up at the 29 second mark of the video below.
She calls herself “M.E.” to Dr. Phil. The author of the article and book “Confessions of a Sociopath” is “M.E. Thomas.”
Tipsters report that this M.E. Thomas woman is Professor Jamie Rebecca Lund of St. Mary’s School of Law. St. Mary’s, coincidentally, took down her bio just today (more on that later). But we captured a screen shot before the page was removed (click to enlarge):
That chin seems like the smoking gun to me.
You’ll note that there are many aspects of her bio that link up to details the author of the sociopath tell-all piece revealed yesterday. She went to college at BYU, she’s admitted in California (note however that St. Mary’s Law School is in Texas), and she worked for Irell & Manella… which has to make you wonder if there is some senior associate or junior partner at Irell “named Jane.”
A student of professor Lund’s contacted us to say that he believed his former professor to be the one who authored the article. From the student:
She was generally known as the IP law professor with big tits (she only taught trademarks and copyrights because she had no science background) and there were A LOT of guys (and girls) that were infatuated with her. The sociopathic part that people were able to pick up on was the stare – that blank, empty, uncaring stare. I met with her in office hours once. I wasn’t sure if she wanted to f**k me or eat me. I’m assuming now that it was likely both.
You’ll remember that in her article she talked about her “predator stare.”
But is this all a scam? Dr. Phil seems to think so. We reached out to Professor Lund, but thus far she has not responded. In the extended interview with Dr. Phil, M.E. Thomas says that “My primary reason for staying anonymous is that I have a family, and little relatives — nieces and nephews — who have done nothing to bring any sort of notoriety to themselves.”
We also contacted St. Mary’s. A spokesperson there said that the removal of her bio today was pure coincidence:
Her listing on the website came down today as part of a year-end update of law faculty not returning next year. After spending the past year as a visiting professor at another institution, she notified the School of Law early in the spring semester about not returning to teach.
Enter another Above the Law source. This source says that Lund did indeed intend to leave St. Mary’s for… BYU Law. Again, if you read yesterday’s article you know that the author crowed about how “[t]he Church of Jesus Christ of Latter-day Saints is a sociopath’s dream.” From our tipster:
She was set to become a law professor at BYU Law School. The Dean there is “getting his legal ducks in a row” in order to fire her. Can’t say I blame them, but kind of an ugly result nonetheless. She was courting that result, though: so many unusual biographical disclosures that pointed her way (Mormon female law professor barred in CA reduces it to a class of one, I think).
[UPDATE: 3:20] Additional sources confirm the BYU hired Professor Lund. BYU Law alumni have received a their new faculty list from the school, and they list “Jamie Lund (JD, University of Chicago Law School)” as one of the new hires.
Unlike St. Mary’s, BYU Law has not responded to our multiple requests for comment. Arguably, if Professor Lund is the author of “Confessions,” it does put BYU in a weird spot. Not that “alleged sociopath” is a protected class or anything, but talking about thoughts you have that you don’t act on doesn’t usually get people fired. I mean, she’s published, right!
But that brings us back to Dr. Phil’s “scam” allegation. Perhaps there is a sociopath out there who looks a whole lot like Professor Lund who went on Dr. Phil, and wrote an article and book with a bunch of identifying details in order to frame the professor and harm her in some way. But, absent the “evil twin” scenario, it sure appears that a law school professor went on Dr. Phil to talk about how she might kill somebody, then thought that people wouldn’t notice because she wore a wig. Is that what sociopaths do?
One of our commenters to yesterday’s story said:
Sociopaths are a nice a break from the swarming narcissists that currently dominate the profession.
Sadly, the wigged woman on Dr. Phil seems much more like a narcissist looking for attention. Maybe the only thing she wants to murder is her professorial career?
Dr. Phil thinks "M. E. Thomas" (above), the pseudonymous law professor who appeared recently on his program, might be perpetrating a scam.
I would say she's pulling off a cool trick--but not necessarily a scam. Her clever trick is to tell the truth--or something pretty close to it.
Sometimes it's hard to tell the difference between a narcissist and a sociopath. Many, if not most, people are skilled at rationalizing their own bad behavior. Isn't it possible that people's ability to feel guilt varies from high to low, and would show up as a bell-shaped curve if we were to create a graph of how this trait is distributed across the population? Wouldn't the graph look pretty much like the graphs of our heights, weights, and IQs?
It's perfectly believable that Ms. "Thomas" ranks quite low on the scale of ability to feel guilt.
It's not illegal to be a sociopath. It's not even considered a mental illness. You only lose points in your mental health score if you sabotage yourself; it's considered normal, apparently, to sabotage others. I think the biggest factor undermining her claim is that she does sabotage herself. Either way, sociopath or narcissist, she seems to have calculated that she can get rich and famous by simply being herself, so why not?
If you see 100 people today, you'll probably catch a glimpse of a few sociopaths. One or more of them might even work with you. If you're at a meeting with as few as 10 CEOs, you will probably be sharing the room with a sociopath.
The problem is that the legal profession is not tolerant of discussions of its ruthlessness. But perhaps this Mormon female law professor barred in CA, who is likely Jamie Lund, is tired of being a law professor and wants to be a celebrity/author instead. Plus, she'll have a very interesting case if Brigham Young University fires her.
The Author of ‘Confessions of a Sociopath’ Might Be This Law Professor
By Elie Mystal
Above the Law
17 May 2013
It appears that a lot of you would like to know which law professor authored the “Confessions of a Sociopath” summary and book that we discussed yesterday. I guess it’s news if it appears that one of your law professors has gone on television to say that she might murder someone. Sources have come forward about the author’s possible identity, so we’ll share with you what we’re being told while noting that the anonymous author hasn’t yet officially come forward.
It seems that donning a wig and going on Dr. Phil to talk about your sociopathic thoughts doesn’t protect your identity as much as one would think
[Note the UPDATE after the jump....]
Let’s start with the video tape. Multiple sources and commenters reported that the the woman in the second half of this Dr. Phil promo is a law professor in Texas. Her segment on Dr. Phil is called “Confessions of the Sociopath” which is exactly the same title of the article from Psychology Today. The alleged professor shows up at the 29 second mark of the video below.
She calls herself “M.E.” to Dr. Phil. The author of the article and book “Confessions of a Sociopath” is “M.E. Thomas.”
Tipsters report that this M.E. Thomas woman is Professor Jamie Rebecca Lund of St. Mary’s School of Law. St. Mary’s, coincidentally, took down her bio just today (more on that later). But we captured a screen shot before the page was removed (click to enlarge):
That chin seems like the smoking gun to me.
You’ll note that there are many aspects of her bio that link up to details the author of the sociopath tell-all piece revealed yesterday. She went to college at BYU, she’s admitted in California (note however that St. Mary’s Law School is in Texas), and she worked for Irell & Manella… which has to make you wonder if there is some senior associate or junior partner at Irell “named Jane.”
A student of professor Lund’s contacted us to say that he believed his former professor to be the one who authored the article. From the student:
She was generally known as the IP law professor with big tits (she only taught trademarks and copyrights because she had no science background) and there were A LOT of guys (and girls) that were infatuated with her. The sociopathic part that people were able to pick up on was the stare – that blank, empty, uncaring stare. I met with her in office hours once. I wasn’t sure if she wanted to f**k me or eat me. I’m assuming now that it was likely both.
You’ll remember that in her article she talked about her “predator stare.”
But is this all a scam? Dr. Phil seems to think so. We reached out to Professor Lund, but thus far she has not responded. In the extended interview with Dr. Phil, M.E. Thomas says that “My primary reason for staying anonymous is that I have a family, and little relatives — nieces and nephews — who have done nothing to bring any sort of notoriety to themselves.”
We also contacted St. Mary’s. A spokesperson there said that the removal of her bio today was pure coincidence:
Her listing on the website came down today as part of a year-end update of law faculty not returning next year. After spending the past year as a visiting professor at another institution, she notified the School of Law early in the spring semester about not returning to teach.
Enter another Above the Law source. This source says that Lund did indeed intend to leave St. Mary’s for… BYU Law. Again, if you read yesterday’s article you know that the author crowed about how “[t]he Church of Jesus Christ of Latter-day Saints is a sociopath’s dream.” From our tipster:
She was set to become a law professor at BYU Law School. The Dean there is “getting his legal ducks in a row” in order to fire her. Can’t say I blame them, but kind of an ugly result nonetheless. She was courting that result, though: so many unusual biographical disclosures that pointed her way (Mormon female law professor barred in CA reduces it to a class of one, I think).
[UPDATE: 3:20] Additional sources confirm the BYU hired Professor Lund. BYU Law alumni have received a their new faculty list from the school, and they list “Jamie Lund (JD, University of Chicago Law School)” as one of the new hires.
Unlike St. Mary’s, BYU Law has not responded to our multiple requests for comment. Arguably, if Professor Lund is the author of “Confessions,” it does put BYU in a weird spot. Not that “alleged sociopath” is a protected class or anything, but talking about thoughts you have that you don’t act on doesn’t usually get people fired. I mean, she’s published, right!
But that brings us back to Dr. Phil’s “scam” allegation. Perhaps there is a sociopath out there who looks a whole lot like Professor Lund who went on Dr. Phil, and wrote an article and book with a bunch of identifying details in order to frame the professor and harm her in some way. But, absent the “evil twin” scenario, it sure appears that a law school professor went on Dr. Phil to talk about how she might kill somebody, then thought that people wouldn’t notice because she wore a wig. Is that what sociopaths do?
One of our commenters to yesterday’s story said:
Sociopaths are a nice a break from the swarming narcissists that currently dominate the profession.
Sadly, the wigged woman on Dr. Phil seems much more like a narcissist looking for attention. Maybe the only thing she wants to murder is her professorial career?
Friday, August 2, 2013
A lawyer who admits to practicing the fine art of ruining people
See UPDATE HERE.
M. E. Thomas admits to practicing “the fine art of ruining people," seducing with charisma, and cunningly covering her hollowness with superficial charm.
“The law school environment made everyone a little more sociopathic, since we were encouraged to view our successes in a zero-sum game measured by precise numbers,” she says.
She describes herself as a "Nietzschean machine."
M.E. Thomas Is a Sociopath
And so am I.
By Patrick Bateman
June 7, 2013
Editor’s note: A Slate columnist awoke this morning to discover an envelope slipped under his apartment door. Inside, printed on bone-colored stationery in Cillian Rail font, was this essay.
... I pick up the magazine to read the cover story and see it’s the first serial excerpt from a memoir called Confessions of a Sociopath, pseudonymously written by M.E. Thomas, a female law professor who blogs about her pathological narcissism and remorselessness at SociopathWorld.com...
And she violates social norms like it’s her job. Emotionally she takes no prisoners: The high school teacher she falsely accuses of harassment, the friends whose boyfriends she sleeps with just because she can, the colleagues she mind-f____—they’re all just roadkill. It takes all kinds of anti-social behavior to give society an edge, and she and I differ in many important ways. She doesn’t use knives because she is too reckless with them—“I’ve cut myself many times. I can never force myself to be more careful, so now I just don’t use them”—where I use a Black & Decker Handy Knife, a slicer/peeler with several attachments and a rechargeable handle. She likes to get inside people’s heads with her ruthless charm, but I prefer a power drill. Between 1 and 4 percent of the population is just like us, if you’re willing to trust a self-aggrandizer like her.
Thomas escapes her abusive Mormon family and coasts through college and into a big law firm through manipulation and coercion. After she is fired for her lazy work, she undertakes a ruthless period of rational introspection. Once she embraces her true nature, she sees the dark light of harnessing her power, moving to a cushy gig as a law professor who screws with her students’ heads and prepares them to master the real world, just as she had in her day: “The law school environment made everyone a little more sociopathic, since we were encouraged to view our successes in a zero-sum game measured by precise numbers.”
I laugh out loud every time Thomas illustrates a point with an example drawn from legal practice. She writes about psyching out jurors as a trial lawyer and working the loopholes and core concepts, such as “efficient breach,” that sanitize unethical behavior.
But I wish she would go further in describing the baked-in sociopathy of the legal code as it pertains to business and the awesome unfeeling logic of capitalism. I sweat with excitement whenever she touches on it. Thomas talks about Al Dunlap, the turnaround specialist, and his appearance in a book called The Psychopath Test, in order to explain guys like me who know that manipulation is leadership and megalomania is a survival skill. “It’s probably no surprise that many sociopaths end up as successful corporate types,” she writes. “Sociopathic traits can be a real boon in the corporate workplace: unemotional, ruthless, charming, confident.”
And because she grows up Mormon (“a handy tool in explaining my eccentricities”) and builds her amoral resumé shoplifting at BYU, and because she uses an Etch a Sketch metaphor to explain her absence of core beliefs, she makes me think of Mitt Romney. Corporations are antisocial people, my “friend.”...
Patrick Bateman is a fictional character, the antihero and narrator of the novel "American Psycho" by Bret Easton Ellis.
M.E. Thomas On Her Sociopath Diagnosis: 'Seems To Explain A Lot' (VIDEO)
Huffington Post
By Alexandra Schuster
06/28/2013
The term "sociopath" has been loosely thrown around to describe some of the biggest felons and criminals of our time. But that's not always so accurate -- sometimes they're just ordinary people who may not even be aware of their behavioral differences. M.E. Thomas, author of "Confessions of a Sociopath" and a diagnosed sociopath herself, joined HuffPost Live's Marc Lamont HIll to discuss her life experiences.
After a period of "self-destruction" -- losing her job and enduring several failed relationships -- Thomas sought therapy. But it wasn't during those therapy sessions that she realized her diagnosis. Rather, a coworker brought it to her attention, likening Thomas' behavior to another sociopath her coworker knew.
"So I looked up the term and I thought at the time this makes a lot of sense, but I didn't think much of it until years later," says Thomas. "So I started to blog and started researching more and thought this really does seem to explain a lot."
Dr. John Edens, Professor of Psychology at Texas A&M University, describes sociopaths as "people who are emotionally disconnected from others -- they don't have the same sort of desire for relationships or capacity to connect emotionally with people."
Thomas illustrates Edens' point, as she draws on her path to self-realization. Explaining that it wasn't until she got to law school that she came to terms with her diagnosis, Thomas says it was "natural" for her to think like a lawyer -- "very logically, rationally."
However, it wasn't as easy for her peers, she says: "Everybody else has to sort of adapt to [thinking like a lawyer]. They almost get brainwashed to do it. And they would do it for every single case except when it became something very controversial, like abortion or the death penalty. And they would abandon this "think like a lawyer" mentality and they would start relying on other things that seemed more important to them. They were reacting emotionally to it in a way that didn't make sense to me, but everybody did it. And that's when I think I really realized that I am different from these people."
M. E. Thomas admits to practicing “the fine art of ruining people," seducing with charisma, and cunningly covering her hollowness with superficial charm.
“The law school environment made everyone a little more sociopathic, since we were encouraged to view our successes in a zero-sum game measured by precise numbers,” she says.
She describes herself as a "Nietzschean machine."
M.E. Thomas Is a Sociopath
And so am I.
By Patrick Bateman
June 7, 2013
Editor’s note: A Slate columnist awoke this morning to discover an envelope slipped under his apartment door. Inside, printed on bone-colored stationery in Cillian Rail font, was this essay.
... I pick up the magazine to read the cover story and see it’s the first serial excerpt from a memoir called Confessions of a Sociopath, pseudonymously written by M.E. Thomas, a female law professor who blogs about her pathological narcissism and remorselessness at SociopathWorld.com...
And she violates social norms like it’s her job. Emotionally she takes no prisoners: The high school teacher she falsely accuses of harassment, the friends whose boyfriends she sleeps with just because she can, the colleagues she mind-f____—they’re all just roadkill. It takes all kinds of anti-social behavior to give society an edge, and she and I differ in many important ways. She doesn’t use knives because she is too reckless with them—“I’ve cut myself many times. I can never force myself to be more careful, so now I just don’t use them”—where I use a Black & Decker Handy Knife, a slicer/peeler with several attachments and a rechargeable handle. She likes to get inside people’s heads with her ruthless charm, but I prefer a power drill. Between 1 and 4 percent of the population is just like us, if you’re willing to trust a self-aggrandizer like her.
Thomas escapes her abusive Mormon family and coasts through college and into a big law firm through manipulation and coercion. After she is fired for her lazy work, she undertakes a ruthless period of rational introspection. Once she embraces her true nature, she sees the dark light of harnessing her power, moving to a cushy gig as a law professor who screws with her students’ heads and prepares them to master the real world, just as she had in her day: “The law school environment made everyone a little more sociopathic, since we were encouraged to view our successes in a zero-sum game measured by precise numbers.”
I laugh out loud every time Thomas illustrates a point with an example drawn from legal practice. She writes about psyching out jurors as a trial lawyer and working the loopholes and core concepts, such as “efficient breach,” that sanitize unethical behavior.
But I wish she would go further in describing the baked-in sociopathy of the legal code as it pertains to business and the awesome unfeeling logic of capitalism. I sweat with excitement whenever she touches on it. Thomas talks about Al Dunlap, the turnaround specialist, and his appearance in a book called The Psychopath Test, in order to explain guys like me who know that manipulation is leadership and megalomania is a survival skill. “It’s probably no surprise that many sociopaths end up as successful corporate types,” she writes. “Sociopathic traits can be a real boon in the corporate workplace: unemotional, ruthless, charming, confident.”
And because she grows up Mormon (“a handy tool in explaining my eccentricities”) and builds her amoral resumé shoplifting at BYU, and because she uses an Etch a Sketch metaphor to explain her absence of core beliefs, she makes me think of Mitt Romney. Corporations are antisocial people, my “friend.”...
Patrick Bateman is a fictional character, the antihero and narrator of the novel "American Psycho" by Bret Easton Ellis.
M.E. Thomas On Her Sociopath Diagnosis: 'Seems To Explain A Lot' (VIDEO)
Huffington Post
By Alexandra Schuster
06/28/2013
The term "sociopath" has been loosely thrown around to describe some of the biggest felons and criminals of our time. But that's not always so accurate -- sometimes they're just ordinary people who may not even be aware of their behavioral differences. M.E. Thomas, author of "Confessions of a Sociopath" and a diagnosed sociopath herself, joined HuffPost Live's Marc Lamont HIll to discuss her life experiences.
After a period of "self-destruction" -- losing her job and enduring several failed relationships -- Thomas sought therapy. But it wasn't during those therapy sessions that she realized her diagnosis. Rather, a coworker brought it to her attention, likening Thomas' behavior to another sociopath her coworker knew.
"So I looked up the term and I thought at the time this makes a lot of sense, but I didn't think much of it until years later," says Thomas. "So I started to blog and started researching more and thought this really does seem to explain a lot."
Dr. John Edens, Professor of Psychology at Texas A&M University, describes sociopaths as "people who are emotionally disconnected from others -- they don't have the same sort of desire for relationships or capacity to connect emotionally with people."
Thomas illustrates Edens' point, as she draws on her path to self-realization. Explaining that it wasn't until she got to law school that she came to terms with her diagnosis, Thomas says it was "natural" for her to think like a lawyer -- "very logically, rationally."
However, it wasn't as easy for her peers, she says: "Everybody else has to sort of adapt to [thinking like a lawyer]. They almost get brainwashed to do it. And they would do it for every single case except when it became something very controversial, like abortion or the death penalty. And they would abandon this "think like a lawyer" mentality and they would start relying on other things that seemed more important to them. They were reacting emotionally to it in a way that didn't make sense to me, but everybody did it. And that's when I think I really realized that I am different from these people."
Thursday, July 25, 2013
Justice Alito's Inexcusable Rudeness
Justice Alito's Inexcusable Rudeness
A justice of the Supreme Court should not act like a high schooler on the bench; when the target is a fellow justice, the offense is even greater.
Garrett Epps
The Atlantic
Jun 24 2013
I suspect that the cause of cameras in the Supreme Court suffered a blow on Monday. I am glad the nation did not see first-hand Justice Samuel Alito's display of rudeness to his senior colleague, Justice Ruth Bader Ginsburg. Because Alito's mini-tantrum was silent, it will not be recorded in transcript or audio; but it was clear to all with eyes, and brought gasps from more than one person in the audience.
The episode occurred when Ginsburg read from the bench her dissent in two employment discrimination cases decided Monday, Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar. In both cases, the Court majority made it harder for plaintiffs to prevail on claims of racial and sexual discrimination. The Nassar opinion raises the level of proof required to establish that employers have "retaliated" against employees by firing or demoting them after they complain about discrimination; Vance limits the definition of "supervisor" on the job, making it harder for employers harassed by those with limited but real authority over them to sue the employers.
The Vance opinion is by Alito, and as he summarized the opinion from the bench he seemed to be at great pains to show that the dissent (which of course no one in the courtroom had yet seen) was wrong in its critique. That's not unusual in a written opinion; more commonly, however, bench summaries simply lay out the majority's rationale and mention only that there was a dissent. (Kennedy's Nassar summary followed the latter model.)
After both opinions had been read, Ginsburg read aloud a summary of her joint dissent in the two cases. She critiqued the Vance opinion by laying out a "hypothetical" (clearly drawn from a real case) in which a female worker on a road crew is subjected to humiliations by the "lead worker," who directs the crew's daily operation but cannot fire or demote those working with him. The Vance opinion, she suggested, would leave the female worker without a remedy.
At this point, Alito pursed his lips, rolled his eyes to the ceiling, and shook his head "no." He looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand.
The offense against decorum is greater when the object of scorn is a woman 17 years his senior, one who is acknowledged even by most of her critics to have spent a distinguished career selflessly pursuing justice in the precise area of her dissent--gender equality in society in general and the workplace in particular. Her words are as worthy of respectful attention as were his.
I found it as jarring as seeing a Justice blow bubblegum during oral argument.
A Justice of the Court lives his life in a swaddle of deference most of us cannot imagine. It is not too much to ask that, in return for this power and privilege, he or she should act like an adult.
A justice of the Supreme Court should not act like a high schooler on the bench; when the target is a fellow justice, the offense is even greater.
Garrett Epps
The Atlantic
Jun 24 2013
I suspect that the cause of cameras in the Supreme Court suffered a blow on Monday. I am glad the nation did not see first-hand Justice Samuel Alito's display of rudeness to his senior colleague, Justice Ruth Bader Ginsburg. Because Alito's mini-tantrum was silent, it will not be recorded in transcript or audio; but it was clear to all with eyes, and brought gasps from more than one person in the audience.
The episode occurred when Ginsburg read from the bench her dissent in two employment discrimination cases decided Monday, Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar. In both cases, the Court majority made it harder for plaintiffs to prevail on claims of racial and sexual discrimination. The Nassar opinion raises the level of proof required to establish that employers have "retaliated" against employees by firing or demoting them after they complain about discrimination; Vance limits the definition of "supervisor" on the job, making it harder for employers harassed by those with limited but real authority over them to sue the employers.
The Vance opinion is by Alito, and as he summarized the opinion from the bench he seemed to be at great pains to show that the dissent (which of course no one in the courtroom had yet seen) was wrong in its critique. That's not unusual in a written opinion; more commonly, however, bench summaries simply lay out the majority's rationale and mention only that there was a dissent. (Kennedy's Nassar summary followed the latter model.)
After both opinions had been read, Ginsburg read aloud a summary of her joint dissent in the two cases. She critiqued the Vance opinion by laying out a "hypothetical" (clearly drawn from a real case) in which a female worker on a road crew is subjected to humiliations by the "lead worker," who directs the crew's daily operation but cannot fire or demote those working with him. The Vance opinion, she suggested, would leave the female worker without a remedy.
At this point, Alito pursed his lips, rolled his eyes to the ceiling, and shook his head "no." He looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand.
The offense against decorum is greater when the object of scorn is a woman 17 years his senior, one who is acknowledged even by most of her critics to have spent a distinguished career selflessly pursuing justice in the precise area of her dissent--gender equality in society in general and the workplace in particular. Her words are as worthy of respectful attention as were his.
I found it as jarring as seeing a Justice blow bubblegum during oral argument.
A Justice of the Court lives his life in a swaddle of deference most of us cannot imagine. It is not too much to ask that, in return for this power and privilege, he or she should act like an adult.
Sunday, July 14, 2013
Florida Mom Marissa Alexander To Serve 20 Years for Firing Warning Shot, While George Zimmerman Goes Free
Photo from Being Liberal.com
Lesson:
Don't shoot warning rounds. Always shoot to kill. Same reason police never shoot to injure or disable anyone, they shoot to kill. Dead man can't testify. --Gustavo Cortez
Florida Mom Marissa Alexander To Serve 20 Years for Firing Warning Shot, While George Zimmerman Goes Free
By Sarah Rae Fruchtnicht
OpposingViews.com
July 14, 2013
A Florida woman was sentenced to 20 years in prison for firing a warning shot at her allegedly abusive husband. Claiming self-defense, just as George Zimmerman did in the Trayvon Martin shooting trial, a jury convicted Marissa Alexander of Jacksonville of aggravated assault with a deadly weapon.
Alexander, 31, said she feared for her life when she fired a bullet into the wall of her home in August 2010. The Jacksonville mother of three had a protective order against her husband.
No one was hurt in the shooting, but a jury found her guilty on May 11, and she was given the mandatory minimum sentence under the gun law: 20 years.
Alexander had never been in trouble with the law before, but Circuit Court Judge James Daniel said he wouldn’t allow for any circumstances to reduce the sentence below the 20-year minimum.
On Saturday, an all-female jury found George Zimmerman not guilty of second-degree murder and manslaughter in the Sanford, Fla., shooting death of an unarmed 17-year-old, Trayvon Martin. There was no dispute as to whether Zimmerman shot and killed Martin. Instead, the jury considered whether Zimmerman, a neighborhood watch volunteer, was justified in his use of deadly force, which by Florida state law means force "necessary to prevent imminent death or great bodily harm."
Zimmerman waived his right to a “Stand Your Ground” pretrial immunity hearing, CNN reported, and attorneys went forward with the trial as a self-defense case. When Alexander’s attorney made an appeal to reconsider her case under the “Stand Your Ground” law, the judge denied to grant her a new trial.
State Attorney Angela Corey, who oversaw the prosecution of George Zimmerman, stood by the Alexander sentencing, according to Press TV. Corey believes that Alexander aimed the gun at her husband. She argues that the bullet fired could have ricocheted and hit him or others in the room.
Zimmerman was outdoors in a densely populated neighborhood when he shot Trayvon Martin. Zimmerman also had previous run-ins with the law. He was arrested in 2005 and charged with "resisting officer with violence" and "battery of law enforcement officer."
A recording of his 911 call shows Zimmerman said he was following Martin and ignored a dispatcher who told him not to approach the teenager. Zimmerman had no order of protection against Martin. Martin was unarmed.
Is it fair for Alexander to spend two decades in jail for a crime that had no fatalities, while Zimmerman walks? Does race and sex influence a jury's decision?
Lesson:
Don't shoot warning rounds. Always shoot to kill. Same reason police never shoot to injure or disable anyone, they shoot to kill. Dead man can't testify. --Gustavo Cortez
Florida Mom Marissa Alexander To Serve 20 Years for Firing Warning Shot, While George Zimmerman Goes Free
By Sarah Rae Fruchtnicht
OpposingViews.com
July 14, 2013
A Florida woman was sentenced to 20 years in prison for firing a warning shot at her allegedly abusive husband. Claiming self-defense, just as George Zimmerman did in the Trayvon Martin shooting trial, a jury convicted Marissa Alexander of Jacksonville of aggravated assault with a deadly weapon.
Alexander, 31, said she feared for her life when she fired a bullet into the wall of her home in August 2010. The Jacksonville mother of three had a protective order against her husband.
No one was hurt in the shooting, but a jury found her guilty on May 11, and she was given the mandatory minimum sentence under the gun law: 20 years.
Alexander had never been in trouble with the law before, but Circuit Court Judge James Daniel said he wouldn’t allow for any circumstances to reduce the sentence below the 20-year minimum.
On Saturday, an all-female jury found George Zimmerman not guilty of second-degree murder and manslaughter in the Sanford, Fla., shooting death of an unarmed 17-year-old, Trayvon Martin. There was no dispute as to whether Zimmerman shot and killed Martin. Instead, the jury considered whether Zimmerman, a neighborhood watch volunteer, was justified in his use of deadly force, which by Florida state law means force "necessary to prevent imminent death or great bodily harm."
Zimmerman waived his right to a “Stand Your Ground” pretrial immunity hearing, CNN reported, and attorneys went forward with the trial as a self-defense case. When Alexander’s attorney made an appeal to reconsider her case under the “Stand Your Ground” law, the judge denied to grant her a new trial.
State Attorney Angela Corey, who oversaw the prosecution of George Zimmerman, stood by the Alexander sentencing, according to Press TV. Corey believes that Alexander aimed the gun at her husband. She argues that the bullet fired could have ricocheted and hit him or others in the room.
Zimmerman was outdoors in a densely populated neighborhood when he shot Trayvon Martin. Zimmerman also had previous run-ins with the law. He was arrested in 2005 and charged with "resisting officer with violence" and "battery of law enforcement officer."
A recording of his 911 call shows Zimmerman said he was following Martin and ignored a dispatcher who told him not to approach the teenager. Zimmerman had no order of protection against Martin. Martin was unarmed.
Is it fair for Alexander to spend two decades in jail for a crime that had no fatalities, while Zimmerman walks? Does race and sex influence a jury's decision?
Friday, July 12, 2013
Cal Western professor gives law students a guide on how not to become jaded
In her article below, law professor Kathryn Fehrman advises law students to go along to get along. "Don't expect anything other than what the world offers," she advises.
Of course, what the legal world offers is deceit and trickery, rewarded with large sums of cash. It seems Fehrman wants her students to be successful lawyers, ignoring the rottenness of the legal world. "Just say yes...Accept what is...don't create your own grain for the world to go against".
Basically, her message is "you can't beat 'em, so join 'em." She seems to say that the way not to become jaded is to tell yourself that all the deceit and bullying that lawyers use to obtain unjust outcomes is part of the natural order of things. If you don't question it, she seems to be saying, you won't be disgusted by it and want to quit your job. You just tailor your conscience to suit your profession. You must make a list of all the things that you're going to have to accept, and then don't let doubts creep into your mind each time you catch a whiff of something rotten.
I think that Fehrman believes she has good intentions, but as the old saying goes, the road to hell (or as Fehrman says, "the bad place") is paved with good intentions. Unfortunately, Fehrman herself supports a system that causes decent people to become jaded. I would give students the exact opposite advice. "Be jaded," I would tell them, "Be very jaded."
Here is my email to Kathryn Fehrman.
Kathryn Fehrman
How not to be jaded when the world is going to the bad place in a hand basket
By Kathryn Fehrman
San Diego Source
January 28, 2013
My law students are going to be lawyers -- a double-edged sword for them. On the one hand, lawyers serve in the world; we serve neighbors, communities, governments, institutions. And service may be the most honorable purpose we humans can aspire to.
On the other hand, practitioners see daily the ugliest and most difficult sides of human behavior and events.
Our students were thinking about dealing with neighbors on the verge of losing everything: businesses that took lifetimes to build, families, children, fortunes, futures, lives hanging in the balance. They were thinking of peering through the dark at the soft underbelly of society hidden from most. They were thinking of conversation after conversation with people embroiled in the fights of their lifetimes, or people facing challenges they simply cannot rise to.
So when my students asked, “How can we be in this profession and not become jaded and calloused,” I recognized that they sought a long view that would serve their existence. I wanted to give them a real answer. It’s not easy.
So I hunkered down and came up with a Five-Step Plan. If it can help lawyers, it can probably help pretty much anybody. So here it is.
Lawyers, of course, need to start with definitions. “Jaded” isn’t green, although linguistically much has happened since the word first appeared in our language. But that’s another article. “Jaded” comes from the Old Norse word, “jalda,” meaning “exhausted, tired old horse.” And callous is what you think: hardened and protected from further sensitivity because of being rubbed the wrong way.
Here are the five steps I gave them:
(1) “To thine own self be true.” Being true to yourself means a few things. First, it means that if you want to be a cynical peevish tired old horse, then be that way. This article isn’t for you. Being true to yourself also means you need to know your own personal values, so that when you make the everyday decisions which each moment presents, you have a measuring tool. “Re-examine all you have been told. … Dismiss what insults your Soul.” Walt Whitman.
Do what’s right by your own personal compass in each moment. Listen to Jiminy Cricket chirping in your ear, “Let your conscience be your guide.” Do that, and the ripples you set up with each small decision will be the ripples you intend.
(2) Put in the work. As my colleagues often remind our students, “There is no substitute for excellent preparation.” If we prepare to do the work we need to accomplish, we do a job we can be proud of.
There is no better way to limit the remorse in our lives, and that in turn lightens our loads so we don’t become tired old horses. Preparing for life is part of our work. Every day we have the opportunity to begin again and prepare ourselves to be the best we can be. Forgive yourself and do the work.
(3) Just say yes. Don’t expect anything other than what the world offers. Accept what is, and unless you’ve wisely chosen an important battle, don’t create your own grain for the world to go against.
The surest way to tire yourself out is to create the opportunity for that kind of friction.
(4) Be grateful for everything you receive; you are not entitled to -- nor can you expect -- the next moment. It’s all a gift. Things like Newtown in 2012 reminded us (more often than we’d like) that we are mortal, our children are mortal, the end of the world is around every corner. These reminders all brought us closer to Now, which -- you might already know -- is all we actually have. When we remember that life could end this very moment, we become more grateful for the moment we are experiencing now. And there is much to be grateful for. Once you’re there, see (1) Jiminy Cricket and ripples.
(5) Smell the roses. And you are the rose. A story: Hari was 15 years old when he had a seizure and died on an airplane just as he was exclaiming how beautiful the lights of London looked during landing. His father, a physician, couldn’t revive him.
When Hari’s guru came to speak at Hari’s memorial service at Heritage High School in Saginaw, Mich., she said something like this: “I don’t know why God would take from us the boy with the big white smile that made us all smile back so happy. I thought and thought about this. Why? And this is all I can think: It’s like the rosebush. You take this small bush, roots balled up and cold, and you place it in this dark, dank, cold pit – the earth. And you cover the roots with dirt and with foul smelling decaying shit – the fertilizer. And the roots reach out in the dark, and they suck in this wet decay, the cold dank filth, and the rosebush pulls this all in and processes it, and presses it through its stems and into unfolding blossoms, until it becomes something that is universally accepted as the fragrance of Love. That is all I can tell you. That is all I know.”
[Maura Larkins comment: I have a feeling that this guru wouldn't make a good lawyer. In the legal world, the rottenness doesn't get transmuted into the fragrance of Love.]
And that is how not to become jaded and calloused when the world is going to the bad place in a hand basket. (End of article)
[If this works for you, Ms. Fehrman, then I guess you're a lucky lady. You're a member in good standing of a lucrative profession that broadcasts a subtle but clear message of "don't step out of line and we will take good care of you" to new recruits. I hope some of your students toss out your advice and dig very deeply into the ethical morass of the legal system, and take responsibility for every single wrongful thing they are asked to do.]
Fehrman is a professor of legal skills at California Western School of Law.
Professor Fehrman is a Legal Skills Professor at California Western School of Law in San Diego. She was Deputy Director of the State of Michigan's Department of Human Services, and served as Director of the Bay County Michigan Public Defender's Office. She is an Editorial Board Member of the Michigan Child Welfare Law Journal. Professor Fehrman began her legal career as an officer in the US Navy Judge Advocate General's Corps (JAG). From there, she moved to civil litigation and appeals, representing businesses in real estate, energy, and contract cases at Luce Forward in San Diego. She was an arbitrator for the San Diego Board of Realtors, and wrote legal columns for their magazine. Following a move to Michigan, Professor Fehrman continued to practice business, real estate, and government law.
Legal Writing Professor at Cal Western SPL
J.D. University of Detroit School of Law
B.A. Trinity College, Hartford, CT
Courses Taught: Introduction to Legal Skills Legal Skills I & II, Internship Seminar, STEPPS, The International Trafficking in Humans
Basically, her message is "you can't beat 'em, so join 'em." She seems to say that the way not to become jaded is to tell yourself that all the deceit and bullying that lawyers use to obtain unjust outcomes is part of the natural order of things. If you don't question it, she seems to be saying, you won't be disgusted by it and want to quit your job. You just tailor your conscience to suit your profession. You must make a list of all the things that you're going to have to accept, and then don't let doubts creep into your mind each time you catch a whiff of something rotten.
I think that Fehrman believes she has good intentions, but as the old saying goes, the road to hell (or as Fehrman says, "the bad place") is paved with good intentions. Unfortunately, Fehrman herself supports a system that causes decent people to become jaded. I would give students the exact opposite advice. "Be jaded," I would tell them, "Be very jaded."
Here is my email to Kathryn Fehrman.
Kathryn Fehrman
How not to be jaded when the world is going to the bad place in a hand basket
By Kathryn Fehrman
San Diego Source
January 28, 2013
My law students are going to be lawyers -- a double-edged sword for them. On the one hand, lawyers serve in the world; we serve neighbors, communities, governments, institutions. And service may be the most honorable purpose we humans can aspire to.
On the other hand, practitioners see daily the ugliest and most difficult sides of human behavior and events.
Our students were thinking about dealing with neighbors on the verge of losing everything: businesses that took lifetimes to build, families, children, fortunes, futures, lives hanging in the balance. They were thinking of peering through the dark at the soft underbelly of society hidden from most. They were thinking of conversation after conversation with people embroiled in the fights of their lifetimes, or people facing challenges they simply cannot rise to.
So when my students asked, “How can we be in this profession and not become jaded and calloused,” I recognized that they sought a long view that would serve their existence. I wanted to give them a real answer. It’s not easy.
So I hunkered down and came up with a Five-Step Plan. If it can help lawyers, it can probably help pretty much anybody. So here it is.
Lawyers, of course, need to start with definitions. “Jaded” isn’t green, although linguistically much has happened since the word first appeared in our language. But that’s another article. “Jaded” comes from the Old Norse word, “jalda,” meaning “exhausted, tired old horse.” And callous is what you think: hardened and protected from further sensitivity because of being rubbed the wrong way.
Here are the five steps I gave them:
(1) “To thine own self be true.” Being true to yourself means a few things. First, it means that if you want to be a cynical peevish tired old horse, then be that way. This article isn’t for you. Being true to yourself also means you need to know your own personal values, so that when you make the everyday decisions which each moment presents, you have a measuring tool. “Re-examine all you have been told. … Dismiss what insults your Soul.” Walt Whitman.
Do what’s right by your own personal compass in each moment. Listen to Jiminy Cricket chirping in your ear, “Let your conscience be your guide.” Do that, and the ripples you set up with each small decision will be the ripples you intend.
(2) Put in the work. As my colleagues often remind our students, “There is no substitute for excellent preparation.” If we prepare to do the work we need to accomplish, we do a job we can be proud of.
There is no better way to limit the remorse in our lives, and that in turn lightens our loads so we don’t become tired old horses. Preparing for life is part of our work. Every day we have the opportunity to begin again and prepare ourselves to be the best we can be. Forgive yourself and do the work.
(3) Just say yes. Don’t expect anything other than what the world offers. Accept what is, and unless you’ve wisely chosen an important battle, don’t create your own grain for the world to go against.
The surest way to tire yourself out is to create the opportunity for that kind of friction.
(4) Be grateful for everything you receive; you are not entitled to -- nor can you expect -- the next moment. It’s all a gift. Things like Newtown in 2012 reminded us (more often than we’d like) that we are mortal, our children are mortal, the end of the world is around every corner. These reminders all brought us closer to Now, which -- you might already know -- is all we actually have. When we remember that life could end this very moment, we become more grateful for the moment we are experiencing now. And there is much to be grateful for. Once you’re there, see (1) Jiminy Cricket and ripples.
(5) Smell the roses. And you are the rose. A story: Hari was 15 years old when he had a seizure and died on an airplane just as he was exclaiming how beautiful the lights of London looked during landing. His father, a physician, couldn’t revive him.
When Hari’s guru came to speak at Hari’s memorial service at Heritage High School in Saginaw, Mich., she said something like this: “I don’t know why God would take from us the boy with the big white smile that made us all smile back so happy. I thought and thought about this. Why? And this is all I can think: It’s like the rosebush. You take this small bush, roots balled up and cold, and you place it in this dark, dank, cold pit – the earth. And you cover the roots with dirt and with foul smelling decaying shit – the fertilizer. And the roots reach out in the dark, and they suck in this wet decay, the cold dank filth, and the rosebush pulls this all in and processes it, and presses it through its stems and into unfolding blossoms, until it becomes something that is universally accepted as the fragrance of Love. That is all I can tell you. That is all I know.”
[Maura Larkins comment: I have a feeling that this guru wouldn't make a good lawyer. In the legal world, the rottenness doesn't get transmuted into the fragrance of Love.]
And that is how not to become jaded and calloused when the world is going to the bad place in a hand basket. (End of article)
[If this works for you, Ms. Fehrman, then I guess you're a lucky lady. You're a member in good standing of a lucrative profession that broadcasts a subtle but clear message of "don't step out of line and we will take good care of you" to new recruits. I hope some of your students toss out your advice and dig very deeply into the ethical morass of the legal system, and take responsibility for every single wrongful thing they are asked to do.]
Fehrman is a professor of legal skills at California Western School of Law.
Professor Fehrman is a Legal Skills Professor at California Western School of Law in San Diego. She was Deputy Director of the State of Michigan's Department of Human Services, and served as Director of the Bay County Michigan Public Defender's Office. She is an Editorial Board Member of the Michigan Child Welfare Law Journal. Professor Fehrman began her legal career as an officer in the US Navy Judge Advocate General's Corps (JAG). From there, she moved to civil litigation and appeals, representing businesses in real estate, energy, and contract cases at Luce Forward in San Diego. She was an arbitrator for the San Diego Board of Realtors, and wrote legal columns for their magazine. Following a move to Michigan, Professor Fehrman continued to practice business, real estate, and government law.
Legal Writing Professor at Cal Western SPL
J.D. University of Detroit School of Law
B.A. Trinity College, Hartford, CT
Courses Taught: Introduction to Legal Skills Legal Skills I & II, Internship Seminar, STEPPS, The International Trafficking in Humans
Thursday, June 27, 2013
Video: Hidden in the Harvest
Video: Hidden in the Harvest
Ariane Wu--Multimedia Producer
Marina Luz--Illustrator
The Center for Investigative Reporting
Jun 25, 2013
Three women came to the U.S. looking for a better life, but what they found wasn’t the American dream. See what they say they had to endure to provide for their own families.
Ariane Wu--Multimedia Producer
Marina Luz--Illustrator
The Center for Investigative Reporting
Jun 25, 2013
Three women came to the U.S. looking for a better life, but what they found wasn’t the American dream. See what they say they had to endure to provide for their own families.
Tuesday, May 28, 2013
Justice for Sale, Part 3: The War on Consumer Class Actions
"Companies are now free to scam their customers out of small amounts, Bland said, and even if the customers realize they’re being scammed, they’re almost certainly not going to bother fighting the company in an individual arbitration.
"And, even if they wanted to challenge the company, few lawyers would be willing to take on such small cases, he said.
“'Concepcion is being interpreted in a way that lets corporations get away with cheating people, in complicated ways, out of sums of money that aren’t that big to the individual, but add up to hundreds of millions of dollars to the company,' Bland said."
Justice for Sale, Part 3: The War on Consumer Class Actions
By: Will Carless
Voice of San Diego
May 28, 2013
See Omar Passons and Maura Larkins comments on this story HERE.
See Part 1 HERE.
See Part 2 HERE.
Hal Rosner is an attorney with the Auto Fraud Legal Center. In a case pending before the California Supreme Court, Rosner is seeking to limit the scope of mandatory arbitration clauses.
Hal Rosner was apoplectic.
The Scripps Ranch lawyer turned ever-darker shades of pink as he outlined what he called the U.S. Supreme Court’s war against consumers. He was brandishing a 28-inch, yellow automobile purchase contract and waving it like a pennant.
“It’s a basic, fundamental attack on the United States Constitution, and it’s why our Supreme Court should walk around with shame,” Rosner said. “Our Supreme Court violated the United States constitutional right to jury trial like a group of little whores.”
Rosner’s a trial lawyer, so it’s fair to chalk up some of his outrage down to the natural theatrics of his profession.
But he’s also got good reason to be mad. And so do consumers.
In a game-changing 2011 decision, the U.S. Supreme Court dealt a huge blow to consumer advocates. In a 5-4 ruling, the court essentially said that not only is it OK for companies to put clauses in their contracts forcing customers to settle disputes in private arbitration, but they can also bar customers from bringing class action lawsuits against them or even arbitrating their disputes as a class.
The decision in the case, AT&T Mobility v. Concepcion, a class action lawsuit that originated in San Diego, involved customers who had been charged small amounts for phones advertised as “free,” overturned years of law developed in the California Legislature and upheld by its courts to protect consumers against a seemingly unstoppable trend.
For decades, businesses across the country have increasingly been writing their way out of the judicial system. By inserting “mandatory arbitration clauses” into their contracts, companies ranging from auto dealers to cell phone companies to health care providers have cut off their customers’ access to the courts, forcing them instead to settle disputes in private arbitration.
That has long concerned consumer advocates and even some industry insiders, who say arbitration is biased in favor of big business. But, for many observers, those worries are nothing compared with the Supreme Court’s 2011 decision.
“It’s earth-shattering. It takes away your right to hold companies accountable for transactions that we all engage in every day,” said Deepak Gupta, one of the attorneys who represented the plaintiffs in the Concepcion case before the Supreme Court. “We all assume that we have a right to hold a company accountable if they’re cheating us. We assume the consumer protection laws will apply. What’s frustrating is the average person doesn’t know that when they take out a contract … they’ve given away their rights.”
The Golden State for Consumer Protection
Historically, California hasn’t been a bad place to be a consumer.
The legislature in the Golden State has spent the last few decades trying to protect the little guys, and successive big court decisions have upheld consumer rights.
In the 1990s and early 2000s, as mandatory arbitration clauses became all the rage for corporations across the country, the California Legislature pounced, passing a slew of laws in 2002 aimed at protecting consumers from the ever-growing trend toward private justice. (Though one of the key laws has since been widely ignored by much of the arbitration industry).
The activism wasn’t limited to lawmakers. Several high-profile lawsuits concerning arbitration clauses found their way to the California Supreme Court. The granddaddy of these was a case called Discover Bank v. Superior Court, in 2005.
The California Supreme Court ruled in that case that companies couldn’t put blanket bans on class action lawsuits in their contracts. To do so was “unconscionable” in legalese. It wouldn’t fly.
Over the next few years, at least 13 other states ruled that blanket class action bans by companies were illegal, according to a research paper by Myriam Gilles of the Cardozo School of Law and Gary Friedman, a New York attorney.
Then, in 2011, California’s groundbreaking rules were put to the ultimate legal test.
The Concepcion case originated in 2006, when a San Diego couple, Vincent and Liza Concepcion, signed a deal offered by AT&T to receive a “free” phone if they signed a two-year cell phone contract. The couple was later charged $30.22 in sales tax for the phone, and they sued AT&T in a class action.
But AT&T had a mandatory arbitration clause in its contract with the Concepcions and other customers barring them from suing the company in court. The clause also said that each customer had to arbitrate his or her case individually, and that groups of consumers couldn’t come together to fight their cases as a class arbitration.
AT&T asked the U.S. District Court in San Diego to dismiss the class action based on that clause. But the court refused, citing the rule that had been established in the Discover Bank case. AT&T appealed to the 9th Circuit and eventually, the Supreme Court agreed to hear the case in 2010.
The high court’s ruling — which found that the Federal Arbitration Act trumped individual states’ decisions to forbid class action bans — largely dismantled California’s years of consumer protection efforts.
The impact of the ruling was swift and far-reaching.
A 2012 report by Public Citizen, an advocacy group, and the National Association of Consumer Advocates, found that judges nationwide had struck down 76 potential class action cases since the ruling.
“These cases undoubtedly would have included the claims of thousands — if not hundreds of thousands — of consumers,” the report states.
F. Paul Bland, a senior attorney at Public Justice, a public interest law firm in Washington, D.C., and one of the country’s leading consumer advocates, said the Supreme Court took away the only method by which consumers can get justice when they’ve been bilked out of small amounts of money.
Companies are now free to scam their customers out of small amounts, Bland said, and even if the customers realize they’re being scammed, they’re almost certainly not going to bother fighting the company in an individual arbitration.
And, even if they wanted to challenge the company, few lawyers would be willing to take on such small cases, he said.
“Concepcion is being interpreted in a way that lets corporations get away with cheating people, in complicated ways, out of sums of money that aren’t that big to the individual, but add up to hundreds of millions of dollars to the company,” Bland said.
Creating a Better System
Andrew Pincus, the attorney who argued the Concepcion case on AT&T’s behalf, said the shift away from class actions is actually good for consumers.
Pincus said AT&T’s mandatory arbitration clause provides excellent remedies for consumers who have been legitimately wronged. Consumers can recoup bonuses from the company worth thousands of dollars more than their claim, he said, and lawyers have impetus to fight arbitrations, since they’re entitled to double their fees if they win.
Mandatory arbitration clauses like AT&T’s are a much better way to filter out frivolous claims against companies, Pincus said.
Pincus’ arguments would have more merit in a world where every business has an arbitration clause that provides legitimate, generous bonuses to successful plaintiffs, Gupta countered. But many arbitration clauses don’t, and only allow wronged consumers to recoup the small amounts of money they have lost, he said.
And Gupta argued there’s no incentive for companies to provide such bonuses in their contracts.
The End for Consumer Class Actions?
Jeremy Robinson, a class action attorney at San Diego firm Casey Gerry, said the Concepcion decision has undoubtedly had a dampening effect on his firm’s class action business.
But that doesn’t mean consumer class actions are dead, Robinson said. His firm’s lawyers still look closely at all potential class actions brought to them, even if the consumers have signed a contract that bars class actions.
That’s because the Supreme Court left another door for consumers open just a crack.
At its core, the Concepcion case was all about the legal concept of “unconscionability.” The key question was whether it was unconscionable for companies to flat-out bar class actions in their contracts. The Supreme Court said no, it wasn’t.
But in the same decision, the court left open the possibility that mandatory arbitration clauses in consumer contracts can be found unconscionable for other reasons.
There are all sorts of ways that mandatory arbitration clauses can, and are, struck down by the courts. A company is unlikely, for example, to get away with a mandatory arbitration clause that includes a $10,000 bill to consumers for arbitrating the case.
That’s where Rosner, in Scripps Ranch, comes in.v Rosner currently has a big case pending before the California Supreme Court. The lawsuit hinges on that long, yellow contract that Rosner is fond of waving about.
Rosner’s case, Sanchez v. Valencia Holding Co. LLC, argues that the standard-issue contract long used by California car dealerships is unconscionable for a number of reasons, including the fact that the mandatory arbitration clause is printed on the back of the form.
The lawsuit is significant because it’s an opportunity for the California Supreme Court to further define what is allowable in a contract, Bland said.
But it’s also limited — if the court finds that the specific form of contract the car dealers were using was not allowed, they can simply rewrite the contract, he said.
To avoid class action lawsuits, then, all big companies need to do is to bar customers from bringing such lawsuits in their contracts, and make sure the contracts are otherwise legally airtight, Bland said.
Rosner’s case illustrates the remarkable sea change that’s taken place in consumer laws in California: Not long ago, California was pioneering measures that enshrined consumers’ rights. Now consumer attorneys must pore through corporate contracts, picking apart clauses or insertions that might be unfair and asking courts to toss them out in a piecemeal attempt to regain some of those rights.
All Eyes on Washington
For consumer advocates, this issue has pretty much hit a dead end in the judicial branch of the American political system.
Unless the U.S. Supreme Court makes a U-turn on arbitration clauses, advocates like Bland are only going to get incremental help from the court system.
That leaves the legislative branch and executive branches.
“Until something comes out of Washington, D.C., consumers, workers, patients, investors, are in a lot of trouble,” said San Francisco attorney Cliff Palefsky, a longtime opponent of mandatory arbitration.
On the legislative side, Sen. Al Franken (D-Minn.) re-introduced legislation he wrote in response to the Concepcion ruling. But several consumer advocates said the Arbitration Fairness Act is dead in the water, given that the Republican House majority is unlikely to even consider the bill.
That leaves the executive branch.
Last year, President Obama’s newly minted Consumer Financial Protection Bureau launched a public inquiry into arbitration clauses.
That was more than a year ago, and there’s been little movement from the agency since.
Without action from the very top, Californians will just have to live with the fact that a longtime remedy against the companies they spend their money on is rapidly disappearing.
Chris Brewster comment
...If arbitration is better for the consumer and the merchant, why not make it an OPTION? If they both prefer it, fine.
See Omar Passons and Maura Larkins comments on this story HERE.
COMMENTS BY OMAR PASSONS AND MAURA LARKINS
"Most people, particularly the people to whom the $30.22 is most critical, do not have the time and/or skill to pursue these issues."--Maura Larkins
Omar Passons May 28, 2013
I almost don't know where to begin. A 3-part series and you dedicate 3 sentences in the final part of the series to the opposing view? Wow. $30.22 is enough to buy food for almost a week, so it's nothing to shake a stick at.
But the ATT Mobility case is the paradigmatic example of why we need class action reform. You left out that the Concepcions only had to fill out a 1-page form to have their issues heard. And you left out that their MINIMUM recovery if they were right on their $30 claim as $7500. And you left out that they had the option to pursue their $30 claim in small claims court, where there are no lawyers and the judges are very relaxed with the rules, if they didn't want arbitration.
You also left out that class action cases can very easily cost more than $100,000 before you even address whether anyone did anything wrong. The "liability" portion of a class action doesn't even really get going until a judge certifies a class. I get it, your a journalist, not a lawyer, but as I mentioned previously there are plenty of lawyers around town who would give you a more fair picture. Or, for that matter, call any in-house lawyer for any large company. Or better, call the CFO. These cases are huge sources of awards for attorneys, not so much for the little guy or woman you claim is being so wronged by class waivers.
Your article also fails to acknowledge that there is no requirement that people actually have been wronged to bring a class action suit. They just need a few plaintiffs to be willing to stand in as the named plaintiffs and then a very expensive fishing expedition can begin to attempt to find people who are actually wronged. And put all this aside for a moment. The whole reason class actions exist is to create a way to make people whole when there is no incentive for them to bring the suit on their own. Here, where the barrier to getting your rights vindicated is a one-page form and a telephone call, there is almost no fear of it not being worth someone's time to file. In fact, with a recovery of more than 1000 times their actual harm I'm surprised everyone who bought an AT&T phone didn't try to use their more than generous dispute resolution procedure. I'm not even a particular supporter of the system of arbitration, it is frequently patently unfair. But this journalism isn't even an attempt to give people enough information to make an informed decision about the topic.
MAURA LARKINS' RESPONSE TO OMAR PASSONS May 28, 2013
Omar, I found that I disagreed with a number of your statements. Here are those statements with my responses:
[Passons] "$30.22 is enough to buy food for almost a week, so it's nothing to shake a stick at."
[Maura Larkins' response] Most people, particularly the people to whom the $30.22 is most critical, do not have the time and/or skill to pursue these issues.
[Passons] But the ATT Mobility case is the paradigmatic example of why we need class action reform.
[Maura Larkins' response]"Paradigmatic"? Why didn't you just say it's a good example? And are you really sure that there is only one paradigmatic example? I doubt that very much. I'm sure many people consider other examples to be more significant in arbitration reform.
[Passons] You left out that the Concepcions only had to fill out a 1-page form to have their issues heard.
[Maura Larkins' response] That's just the start, Omar. Then they have to deal with the big corporation for heaven knows how long.
[Passons] And you left out that their MINIMUM recovery if they were right on their $30 claim as $7500.
[Maura Larkins' response] Since when did arbitration decisions depend on who was "right"? Did you look at the graphic in part 2 of this series? No matter how right the Concepcions might be, they are almost certainly going to lose.
[Passons] And you left out that they had the option to pursue their $30 claim in small claims court, where there are no lawyers and the judges are very relaxed with the rules, if they didn't want arbitration.
[Maura Larkins' response] That would require serving a subpoena on a huge corporation (AT&T) after they discover who it AT&T's agent for service. Then AT&T's lawyers would probably contest everything, including whether service was proper. Then the Concepcions would have to prepare documentation and arguments and go to court. And that still wouldn't guarantee that the judge would side with the little guys against a big corporation.
[Passons] You also left out that class action cases can very easily cost more than $100,000 before you even address whether anyone did anything wrong.
[Maura Larkins' response] That's why you need a big class of people, Omar. So that the payoff will be bigger than the cost.
[Passons] The "liability" portion of a class action doesn't even really get going until a judge certifies a class. I get it, your [sic] a journalist, not a lawyer, but as I mentioned previously there are plenty of lawyers around town who would give you a more fair picture.
[Maura Larkins' response] Don't be patronizing. I think Will got a very fair picture of the situation. And I think there are plenty of lawyers around town who would be happy to give Will an unfair picture.
[Passons] Or, for that matter, call any in-house lawyer for any large company. Or better, call the CFO.
[Maura Larkins' response] We already know AT&T's position. It's in the case pleadings, and in the Supreme Court decision. It's the OTHER side of the story that we need, and Will did a good job on that.
[Passons] These cases are huge sources of awards for attorneys, not so much for the little guy or woman you claim is being so wronged by class waivers.
[Maura Larkins' response] [But the little guy usually can't represent himself effectively. That's why we need lawyers who will represent consumers and make sure that the powerful respect the legal rights of the powerless. Plaintiff lawyers wouldn't have to work so many hours and collect so much pay if there weren't lawyers on the other side being paid big bucks to come up with one reason after another to slow down the case.]
[Passons] Your article also fails to acknowledge that there is no requirement that people actually have been wronged to bring a class action suit. They just need a few plaintiffs to be willing to stand in as the named plaintiffs and then a very expensive fishing expedition can begin to attempt to find people who are actually wronged.
[Maura Larkins' response] [We all know what planet we're on, Omar. Yes, people make false claims all the time. Big corporations are among the worst offenders, making claims that they are owed money when they are not owed anything at all.]
[Passons] Here, where the barrier to getting your rights vindicated is a one-page form and a telephone call, there is almost no fear of it not being worth someone's time to file.
[Maura Larkins' response] [You know very well that you have to do a lot more than fill out one page and make a phone call to get your rights vindicated. And you must have a lot of time on your hands, Omar. Most people go to bed every night wishing they had had time to do things plenty more important than trying to get $30.22 back from AT&T.]
[Passons] In fact, with a recovery of more than 1000 times their actual harm I'm surprised everyone who bought an AT&T phone didn't try to use their more than generous dispute resolution procedure.
[Maura Larkins' response] [If this surprises you, Omar, then you must walk around in a continual state of shock as you observe the incomprehensible behavior of the ordinary people you meet. But I get the feeling that you rarely find the actions of corporations to be anything other than completely reasonable.]
Maura Larkins May 28, 2013
The Concepcion suit never should have been filed in the first place. ATT didn't collect the sales tax, the state did. So to suggest that ATT scammed anybody out of their money is false. It's no wonder companies want to reduce the possibilities of lawsuits when lawyers can talk simple-minded people into filing class actions based on false premises. Carless wants to paint business as the bad guy because that's what he fundamentally believes: that business is bad. Power to the people and all that nonsense. But the sad fact is that if it wasn't for lawyers of questionable moral value hooking up with simpletons, the courts wouldn't be full of bogus lawsuits and our ladders wouldn't have a dozen stickers telling us not to do stupid things. If the lawyers were so worried about the Concepcion's thirty dollars, they should work to rewrite the state law that says the state can collect sales tax on something a company is willing to give away for free.
Moving on from My Dream Job
By: Will Carless
May 2, 2013
...In July, my family and I will be packing our bags and heading off on a new adventure. My wonderful wife, Christin, has accepted a job with the Uruguayan American School in Montevideo, Uruguay. I have decided to follow a new path in my career: From a base in Montevideo, I plan to work as a foreign correspondent, reporting on current events across South America...
"And, even if they wanted to challenge the company, few lawyers would be willing to take on such small cases, he said.
“'Concepcion is being interpreted in a way that lets corporations get away with cheating people, in complicated ways, out of sums of money that aren’t that big to the individual, but add up to hundreds of millions of dollars to the company,' Bland said."
Justice for Sale, Part 3: The War on Consumer Class Actions
By: Will Carless
Voice of San Diego
May 28, 2013
See Omar Passons and Maura Larkins comments on this story HERE.
See Part 1 HERE.
See Part 2 HERE.
Hal Rosner is an attorney with the Auto Fraud Legal Center. In a case pending before the California Supreme Court, Rosner is seeking to limit the scope of mandatory arbitration clauses.
Hal Rosner was apoplectic.
The Scripps Ranch lawyer turned ever-darker shades of pink as he outlined what he called the U.S. Supreme Court’s war against consumers. He was brandishing a 28-inch, yellow automobile purchase contract and waving it like a pennant.
“It’s a basic, fundamental attack on the United States Constitution, and it’s why our Supreme Court should walk around with shame,” Rosner said. “Our Supreme Court violated the United States constitutional right to jury trial like a group of little whores.”
Rosner’s a trial lawyer, so it’s fair to chalk up some of his outrage down to the natural theatrics of his profession.
But he’s also got good reason to be mad. And so do consumers.
In a game-changing 2011 decision, the U.S. Supreme Court dealt a huge blow to consumer advocates. In a 5-4 ruling, the court essentially said that not only is it OK for companies to put clauses in their contracts forcing customers to settle disputes in private arbitration, but they can also bar customers from bringing class action lawsuits against them or even arbitrating their disputes as a class.
The decision in the case, AT&T Mobility v. Concepcion, a class action lawsuit that originated in San Diego, involved customers who had been charged small amounts for phones advertised as “free,” overturned years of law developed in the California Legislature and upheld by its courts to protect consumers against a seemingly unstoppable trend.
For decades, businesses across the country have increasingly been writing their way out of the judicial system. By inserting “mandatory arbitration clauses” into their contracts, companies ranging from auto dealers to cell phone companies to health care providers have cut off their customers’ access to the courts, forcing them instead to settle disputes in private arbitration.
That has long concerned consumer advocates and even some industry insiders, who say arbitration is biased in favor of big business. But, for many observers, those worries are nothing compared with the Supreme Court’s 2011 decision.
“It’s earth-shattering. It takes away your right to hold companies accountable for transactions that we all engage in every day,” said Deepak Gupta, one of the attorneys who represented the plaintiffs in the Concepcion case before the Supreme Court. “We all assume that we have a right to hold a company accountable if they’re cheating us. We assume the consumer protection laws will apply. What’s frustrating is the average person doesn’t know that when they take out a contract … they’ve given away their rights.”
The Golden State for Consumer Protection
Historically, California hasn’t been a bad place to be a consumer.
The legislature in the Golden State has spent the last few decades trying to protect the little guys, and successive big court decisions have upheld consumer rights.
In the 1990s and early 2000s, as mandatory arbitration clauses became all the rage for corporations across the country, the California Legislature pounced, passing a slew of laws in 2002 aimed at protecting consumers from the ever-growing trend toward private justice. (Though one of the key laws has since been widely ignored by much of the arbitration industry).
The activism wasn’t limited to lawmakers. Several high-profile lawsuits concerning arbitration clauses found their way to the California Supreme Court. The granddaddy of these was a case called Discover Bank v. Superior Court, in 2005.
The California Supreme Court ruled in that case that companies couldn’t put blanket bans on class action lawsuits in their contracts. To do so was “unconscionable” in legalese. It wouldn’t fly.
Over the next few years, at least 13 other states ruled that blanket class action bans by companies were illegal, according to a research paper by Myriam Gilles of the Cardozo School of Law and Gary Friedman, a New York attorney.
Then, in 2011, California’s groundbreaking rules were put to the ultimate legal test.
The Concepcion case originated in 2006, when a San Diego couple, Vincent and Liza Concepcion, signed a deal offered by AT&T to receive a “free” phone if they signed a two-year cell phone contract. The couple was later charged $30.22 in sales tax for the phone, and they sued AT&T in a class action.
But AT&T had a mandatory arbitration clause in its contract with the Concepcions and other customers barring them from suing the company in court. The clause also said that each customer had to arbitrate his or her case individually, and that groups of consumers couldn’t come together to fight their cases as a class arbitration.
AT&T asked the U.S. District Court in San Diego to dismiss the class action based on that clause. But the court refused, citing the rule that had been established in the Discover Bank case. AT&T appealed to the 9th Circuit and eventually, the Supreme Court agreed to hear the case in 2010.
The high court’s ruling — which found that the Federal Arbitration Act trumped individual states’ decisions to forbid class action bans — largely dismantled California’s years of consumer protection efforts.
The impact of the ruling was swift and far-reaching.
A 2012 report by Public Citizen, an advocacy group, and the National Association of Consumer Advocates, found that judges nationwide had struck down 76 potential class action cases since the ruling.
“These cases undoubtedly would have included the claims of thousands — if not hundreds of thousands — of consumers,” the report states.
F. Paul Bland, a senior attorney at Public Justice, a public interest law firm in Washington, D.C., and one of the country’s leading consumer advocates, said the Supreme Court took away the only method by which consumers can get justice when they’ve been bilked out of small amounts of money.
Companies are now free to scam their customers out of small amounts, Bland said, and even if the customers realize they’re being scammed, they’re almost certainly not going to bother fighting the company in an individual arbitration.
And, even if they wanted to challenge the company, few lawyers would be willing to take on such small cases, he said.
“Concepcion is being interpreted in a way that lets corporations get away with cheating people, in complicated ways, out of sums of money that aren’t that big to the individual, but add up to hundreds of millions of dollars to the company,” Bland said.
Creating a Better System
Andrew Pincus, the attorney who argued the Concepcion case on AT&T’s behalf, said the shift away from class actions is actually good for consumers.
Pincus said AT&T’s mandatory arbitration clause provides excellent remedies for consumers who have been legitimately wronged. Consumers can recoup bonuses from the company worth thousands of dollars more than their claim, he said, and lawyers have impetus to fight arbitrations, since they’re entitled to double their fees if they win.
Mandatory arbitration clauses like AT&T’s are a much better way to filter out frivolous claims against companies, Pincus said.
Pincus’ arguments would have more merit in a world where every business has an arbitration clause that provides legitimate, generous bonuses to successful plaintiffs, Gupta countered. But many arbitration clauses don’t, and only allow wronged consumers to recoup the small amounts of money they have lost, he said.
And Gupta argued there’s no incentive for companies to provide such bonuses in their contracts.
The End for Consumer Class Actions?
Jeremy Robinson, a class action attorney at San Diego firm Casey Gerry, said the Concepcion decision has undoubtedly had a dampening effect on his firm’s class action business.
But that doesn’t mean consumer class actions are dead, Robinson said. His firm’s lawyers still look closely at all potential class actions brought to them, even if the consumers have signed a contract that bars class actions.
That’s because the Supreme Court left another door for consumers open just a crack.
At its core, the Concepcion case was all about the legal concept of “unconscionability.” The key question was whether it was unconscionable for companies to flat-out bar class actions in their contracts. The Supreme Court said no, it wasn’t.
But in the same decision, the court left open the possibility that mandatory arbitration clauses in consumer contracts can be found unconscionable for other reasons.
There are all sorts of ways that mandatory arbitration clauses can, and are, struck down by the courts. A company is unlikely, for example, to get away with a mandatory arbitration clause that includes a $10,000 bill to consumers for arbitrating the case.
That’s where Rosner, in Scripps Ranch, comes in.v Rosner currently has a big case pending before the California Supreme Court. The lawsuit hinges on that long, yellow contract that Rosner is fond of waving about.
Rosner’s case, Sanchez v. Valencia Holding Co. LLC, argues that the standard-issue contract long used by California car dealerships is unconscionable for a number of reasons, including the fact that the mandatory arbitration clause is printed on the back of the form.
The lawsuit is significant because it’s an opportunity for the California Supreme Court to further define what is allowable in a contract, Bland said.
But it’s also limited — if the court finds that the specific form of contract the car dealers were using was not allowed, they can simply rewrite the contract, he said.
To avoid class action lawsuits, then, all big companies need to do is to bar customers from bringing such lawsuits in their contracts, and make sure the contracts are otherwise legally airtight, Bland said.
Rosner’s case illustrates the remarkable sea change that’s taken place in consumer laws in California: Not long ago, California was pioneering measures that enshrined consumers’ rights. Now consumer attorneys must pore through corporate contracts, picking apart clauses or insertions that might be unfair and asking courts to toss them out in a piecemeal attempt to regain some of those rights.
All Eyes on Washington
For consumer advocates, this issue has pretty much hit a dead end in the judicial branch of the American political system.
Unless the U.S. Supreme Court makes a U-turn on arbitration clauses, advocates like Bland are only going to get incremental help from the court system.
That leaves the legislative branch and executive branches.
“Until something comes out of Washington, D.C., consumers, workers, patients, investors, are in a lot of trouble,” said San Francisco attorney Cliff Palefsky, a longtime opponent of mandatory arbitration.
On the legislative side, Sen. Al Franken (D-Minn.) re-introduced legislation he wrote in response to the Concepcion ruling. But several consumer advocates said the Arbitration Fairness Act is dead in the water, given that the Republican House majority is unlikely to even consider the bill.
That leaves the executive branch.
Last year, President Obama’s newly minted Consumer Financial Protection Bureau launched a public inquiry into arbitration clauses.
That was more than a year ago, and there’s been little movement from the agency since.
Without action from the very top, Californians will just have to live with the fact that a longtime remedy against the companies they spend their money on is rapidly disappearing.
Chris Brewster comment
...If arbitration is better for the consumer and the merchant, why not make it an OPTION? If they both prefer it, fine.
See Omar Passons and Maura Larkins comments on this story HERE.
COMMENTS BY OMAR PASSONS AND MAURA LARKINS
"Most people, particularly the people to whom the $30.22 is most critical, do not have the time and/or skill to pursue these issues."--Maura Larkins
Omar Passons May 28, 2013
I almost don't know where to begin. A 3-part series and you dedicate 3 sentences in the final part of the series to the opposing view? Wow. $30.22 is enough to buy food for almost a week, so it's nothing to shake a stick at.
But the ATT Mobility case is the paradigmatic example of why we need class action reform. You left out that the Concepcions only had to fill out a 1-page form to have their issues heard. And you left out that their MINIMUM recovery if they were right on their $30 claim as $7500. And you left out that they had the option to pursue their $30 claim in small claims court, where there are no lawyers and the judges are very relaxed with the rules, if they didn't want arbitration.
You also left out that class action cases can very easily cost more than $100,000 before you even address whether anyone did anything wrong. The "liability" portion of a class action doesn't even really get going until a judge certifies a class. I get it, your a journalist, not a lawyer, but as I mentioned previously there are plenty of lawyers around town who would give you a more fair picture. Or, for that matter, call any in-house lawyer for any large company. Or better, call the CFO. These cases are huge sources of awards for attorneys, not so much for the little guy or woman you claim is being so wronged by class waivers.
Your article also fails to acknowledge that there is no requirement that people actually have been wronged to bring a class action suit. They just need a few plaintiffs to be willing to stand in as the named plaintiffs and then a very expensive fishing expedition can begin to attempt to find people who are actually wronged. And put all this aside for a moment. The whole reason class actions exist is to create a way to make people whole when there is no incentive for them to bring the suit on their own. Here, where the barrier to getting your rights vindicated is a one-page form and a telephone call, there is almost no fear of it not being worth someone's time to file. In fact, with a recovery of more than 1000 times their actual harm I'm surprised everyone who bought an AT&T phone didn't try to use their more than generous dispute resolution procedure. I'm not even a particular supporter of the system of arbitration, it is frequently patently unfair. But this journalism isn't even an attempt to give people enough information to make an informed decision about the topic.
MAURA LARKINS' RESPONSE TO OMAR PASSONS May 28, 2013
Omar, I found that I disagreed with a number of your statements. Here are those statements with my responses:
[Passons] "$30.22 is enough to buy food for almost a week, so it's nothing to shake a stick at."
[Maura Larkins' response] Most people, particularly the people to whom the $30.22 is most critical, do not have the time and/or skill to pursue these issues.
[Passons] But the ATT Mobility case is the paradigmatic example of why we need class action reform.
[Maura Larkins' response]"Paradigmatic"? Why didn't you just say it's a good example? And are you really sure that there is only one paradigmatic example? I doubt that very much. I'm sure many people consider other examples to be more significant in arbitration reform.
[Passons] You left out that the Concepcions only had to fill out a 1-page form to have their issues heard.
[Maura Larkins' response] That's just the start, Omar. Then they have to deal with the big corporation for heaven knows how long.
[Passons] And you left out that their MINIMUM recovery if they were right on their $30 claim as $7500.
[Maura Larkins' response] Since when did arbitration decisions depend on who was "right"? Did you look at the graphic in part 2 of this series? No matter how right the Concepcions might be, they are almost certainly going to lose.
[Passons] And you left out that they had the option to pursue their $30 claim in small claims court, where there are no lawyers and the judges are very relaxed with the rules, if they didn't want arbitration.
[Maura Larkins' response] That would require serving a subpoena on a huge corporation (AT&T) after they discover who it AT&T's agent for service. Then AT&T's lawyers would probably contest everything, including whether service was proper. Then the Concepcions would have to prepare documentation and arguments and go to court. And that still wouldn't guarantee that the judge would side with the little guys against a big corporation.
[Passons] You also left out that class action cases can very easily cost more than $100,000 before you even address whether anyone did anything wrong.
[Maura Larkins' response] That's why you need a big class of people, Omar. So that the payoff will be bigger than the cost.
[Passons] The "liability" portion of a class action doesn't even really get going until a judge certifies a class. I get it, your [sic] a journalist, not a lawyer, but as I mentioned previously there are plenty of lawyers around town who would give you a more fair picture.
[Maura Larkins' response] Don't be patronizing. I think Will got a very fair picture of the situation. And I think there are plenty of lawyers around town who would be happy to give Will an unfair picture.
[Passons] Or, for that matter, call any in-house lawyer for any large company. Or better, call the CFO.
[Maura Larkins' response] We already know AT&T's position. It's in the case pleadings, and in the Supreme Court decision. It's the OTHER side of the story that we need, and Will did a good job on that.
[Passons] These cases are huge sources of awards for attorneys, not so much for the little guy or woman you claim is being so wronged by class waivers.
[Maura Larkins' response] [But the little guy usually can't represent himself effectively. That's why we need lawyers who will represent consumers and make sure that the powerful respect the legal rights of the powerless. Plaintiff lawyers wouldn't have to work so many hours and collect so much pay if there weren't lawyers on the other side being paid big bucks to come up with one reason after another to slow down the case.]
[Passons] Your article also fails to acknowledge that there is no requirement that people actually have been wronged to bring a class action suit. They just need a few plaintiffs to be willing to stand in as the named plaintiffs and then a very expensive fishing expedition can begin to attempt to find people who are actually wronged.
[Maura Larkins' response] [We all know what planet we're on, Omar. Yes, people make false claims all the time. Big corporations are among the worst offenders, making claims that they are owed money when they are not owed anything at all.]
[Passons] Here, where the barrier to getting your rights vindicated is a one-page form and a telephone call, there is almost no fear of it not being worth someone's time to file.
[Maura Larkins' response] [You know very well that you have to do a lot more than fill out one page and make a phone call to get your rights vindicated. And you must have a lot of time on your hands, Omar. Most people go to bed every night wishing they had had time to do things plenty more important than trying to get $30.22 back from AT&T.]
[Passons] In fact, with a recovery of more than 1000 times their actual harm I'm surprised everyone who bought an AT&T phone didn't try to use their more than generous dispute resolution procedure.
[Maura Larkins' response] [If this surprises you, Omar, then you must walk around in a continual state of shock as you observe the incomprehensible behavior of the ordinary people you meet. But I get the feeling that you rarely find the actions of corporations to be anything other than completely reasonable.]
Maura Larkins May 28, 2013
The Concepcion suit never should have been filed in the first place. ATT didn't collect the sales tax, the state did. So to suggest that ATT scammed anybody out of their money is false. It's no wonder companies want to reduce the possibilities of lawsuits when lawyers can talk simple-minded people into filing class actions based on false premises. Carless wants to paint business as the bad guy because that's what he fundamentally believes: that business is bad. Power to the people and all that nonsense. But the sad fact is that if it wasn't for lawyers of questionable moral value hooking up with simpletons, the courts wouldn't be full of bogus lawsuits and our ladders wouldn't have a dozen stickers telling us not to do stupid things. If the lawyers were so worried about the Concepcion's thirty dollars, they should work to rewrite the state law that says the state can collect sales tax on something a company is willing to give away for free.
Moving on from My Dream Job
By: Will Carless
May 2, 2013
...In July, my family and I will be packing our bags and heading off on a new adventure. My wonderful wife, Christin, has accepted a job with the Uruguayan American School in Montevideo, Uruguay. I have decided to follow a new path in my career: From a base in Montevideo, I plan to work as a foreign correspondent, reporting on current events across South America...
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