On March 8, 2013, The ReInvent Law Laboratory will be hosting an amazing conference at the Computer Museum in Mountain View, California (its a few blocks away from the Googleplex). My good friends Dan Katz and Renee Knake are organizing the event. If you can make it, sign up for free tickets here.
I will be presenting, alongside a Who’s Who of today’s leaders in “technology, innovation, & entrepreneurship in the legal services industry.”
HelloSign for Gmail lets you sign a document inside of gmail, click a few buttons, and send back an annotated PDF. This saves so much time~
From the President’s remarks today, which address what happens when First Amendment rights are in conflict with Second Amendment rights:
OBAMA: This is the land of the free, and it always will be. As Americans we are endowed by our Creator with certain unalienable rights that no man or government can take away from us. But we’ve also long recognized, as our founders recognized, that with rights come responsibilities.
Along with our freedom to live our lives as we will comes an obligation to allow others to do the same. We don’t live in isolation. We live in a society, a government for and by the people. We are responsible for each other. We have the right to worship freely and safely; that right was denied to Sikhs in Oak Creek, Wisconsin. The right to assemble peacefully; that right was denied shoppers in Placimus (ph), Oregon, and moviegoers in Aurora, Colorado.
That most fundamental set of rights to life, liberty and the pursuit of happiness, fundamental rights that were denied to college students at Virginia Tech and high school students at Columbine and elementary school students in Newtown; and kids on street corners in Chicago on too frequent basis to tolerate; and all the families who never imagined they’d lose a loved one to — to a bullet, those rights are at stake. We’re responsible.
I think this is a false dichotomy, but it always interests me when the President attempts to make constitutional arguments to support his policy objectives.
Lowe, an attorney since 1985, had known the client for many years. Both are from Valley City, N.D. The woman met with Lowe in August 2011 to discuss pursuing a divorce from her husband.
He agreed to represent her. During a phone call days later, Lowe asked about her sexual relationship with her husband, commented on her appearance and asked if she was interested in sex with him.
The following month, they began an affair that lasted until March. At various points, Lowe billed the woman for legal services on the dates of their sexual encounters, coding the time as meetings or drafting memos.
So it’s true. Lawyers do it in their briefs.
In March, after several arguments with the woman about the affair and his own marriage, Lowe said he was breaking things off. Two days later, he said he was withdrawing as her attorney.
Alas, he withdrew, twice.
Unsurprisingly, this did not end well. Tragically, the client tried to kill herself.
That day, the woman, who was considered vulnerable because of past abuse and mental health treatment, tried to kill herself. While hospitalized, she disclosed the affair.
The attorney will likely be disbarred. I seem to recall that under the Rules of Profesional Conduct, if a sexual relationship exists before the attorney client relationship commences, the sex can continue. Here, it seems he started having sex with her after he started to represent her. Someone’s in trouble.
H/T David Freddoso
Update: Above The Law covered this yesterday.
One of the President’s executive actions for “gun violence reduction”:
Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes.
Remember that The Affordable Care Act also included provisions that restricts “the ability of doctors to gather data about their patients’ gun use — a largely overlooked but significant challenge to a movement in American medicine to treat firearms as a matter of public health.”
From a fact sheet:
Address unnecessary legal barriers that prevent states from reporting information about those prohibited from having guns: Some states have cited concerns about restrictions under the Health Insurance Portability and Accountability Act as a reason not to share relevant information on people prohibited from gun ownership for mental health reasons. The Administration will begin the regulatory process to remove any needless barriers, starting by gathering information about the scope and extent of the problem.
Clarify that no federal law prevents health care providers from warning law enforcement authorities about threats of violence: Doctors and other mental health professionals play an important role in protecting the safety of their patients and the broader community by reporting direct and credible threats of violence to the authorities. But there is public confusion about whether federal law prohibits such reports about threats of violence. The Department of Health and Human Services is issuing a letter to health care providers clarifying that no federal law prohibits these reports in any way.
Protect the rights of health care providers to talk to their patients about gun safety: Doctors and other health care providers also need to be able to ask about firearms in their patients’ homes and safe storage of those firearms, especially if their patients show signs of certain mental illnesses or if they have a young child or mentally ill family member at home. Some have incorrectly claimed that language in the Affordable Care Act prohibits doctors from asking their patients about guns and gun safety. Medical groups also continue to fight against state laws attempting to ban doctors from asking these questions. The Administration will issue guidance clarifying that the Affordable Care Act does not prohibit or otherwise regulate communication between doctors and patients, including about firearms.
Update: In other news, New York has passed a law that requires therapists and mental health professionals to report to the government if they think a person “is likely to engage in conduct that would result in serious harm to self or others.” On such a report, weapons can be seized. No due process applies.
Appelbaum said the New York law could discourage the mentally ill from seeking treatment or being truthful with their therapists. “The people who arguably most need to be in treatment and most need to feel free to talk about these disturbing impulses, may be the ones we make least likely to do so,” he told AP.
Another problem, according to the Times, is that determining which patients are likely to be violent “is more art than science.” Dr. Michael Stone, a forensic psychiatrist, told the newspaper that most mass murders are committed by “working-class men who’ve been jilted, fired, or otherwise humiliated—and who then undergo a crisis of rage and get out one of the 300 million guns in our country and do their thing.”
In reading Taleb’s work, I have often wondered whether Black Swan Theory is inherently libertarian, or is it Burkean, or a little bit of both. In Antifragile, Taleb alludes to this point by describing his philosophy as Non-Naive Interventionism.
Let me warn against misinterpreting the message here. The argument is not against the notion of intervention; in fact I showed above that I am equally worried about underintervention when it is truly necessary. I am just warning against naive intervention and lack of awareness and acceptance of harm done by it. It is certain that the message will be misinterpreted, for a while. When I wrote Fooled by Randomness, which argues— a relative of this message— that we have a tendency to underestimate the role of randomness in human affairs, summarized as “it is more random than you think,” the message in the media became “it’s all random” or “it’s all dumb luck,” an illustration of the Procrustean bed that changes by reducing. During a radio interview, when I tried explaining to the journalist the nuance and the difference between the two statements I was told that I was “too complicated”; so I simply walked out of the studio, leaving them in the lurch. The depressing part is that those people who were committing such mistakes were educated journalists entrusted to represent the world to us lay persons. Here, all I am saying is that we need to avoid being blind to the natural antifragility of systems, their ability to take care of themselves, and fight our tendency to harm and fragilize them by not giving them a chance to do so. As we saw with the overzealous editor, over-intervention comes with under-intervention. Indeed, as in medicine, we tend to over-intervene in areas with minimal benefits (and large risks) while under-intervening in areas in which intervention is necessary, like emergencies. So the message here is in favor of staunch intervention in some areas, such as ecology or to limit the economic distortions and moral hazard caused by large corporations. What should we control? As a rule, intervening to limit size (of companies, airports, or sources of pollution), concentration, and speed are beneficial in reducing Black Swan risks. These actions may be devoid of iatrogenics— but it is hard to get governments to limit the size of government. For instance, it has been argued since the 1970s that limiting speed on the highway (and enforcing it) leads to an extremely effective increase in safety. This can be plausible because risks of accidents increase disproportionally (that is, nonlinearly) with speed, and humans are not ancestrally equipped with such intuition. Someone recklessly driving a huge vehicle on the highway is endangering your safety and needs to be stopped before he hits your convertible Mini— or put in a situation in which he is the one exiting the gene pool, not you. Speed is from modernity, and I am always suspicious of hidden fragilities coming from the post-natural— we will further show a technical proof in Chapters 18
But I also buy the opposite argument that regulating street signs does not seem to reduce risks; drivers become more placid. Experiments show that alertness is weakened when one relinquishes control to the system (again, lack of overcompensation). Motorists need the stressors and tension coming from the feeling of danger to feed their attention and risk controls, rather than some external regulator— fewer pedestrians die jaywalking than using regulated crossings. Some libertarians use the example of Drachten, a town in the Netherlands, in which a dream experiment was conducted. All street signs were removed. The deregulation led to an increase in safety, confirming the antifragility of attention at work, how it is whetted by a sense of danger and responsibility. As a result, many German and Dutch towns have reduced the number of street signs. We saw a version of the Drachten effect in Chapter 2 in the discussion of the automation of planes, which produces the exact opposite effect than what is intended by making pilots lose alertness. But one needs to be careful not to overgeneralize the Drachten effect, as it does not imply the effectiveness of removing all rules from society. As I said earlier, speed on the highway responds to a different dynamic and its risks are different.
Alas, it has been hard for me to fit these ideas about fragility and antifragility within the current U.S. political discourse— that beastly two-fossil system. Most of the time, the Democratic side of the U.S. spectrum favors hyper-intervention, unconditional regulation, and large government, while the Republican side loves large corporations, unconditional deregulation, and militarism— both are the same to me here. They are even more the same when it comes to debt, as both sides have tended to encourage indebtedness on the part of citizens, corporations, and government (which brings fragility and kills antifragility). I believe that both markets and governments are unintelligent when it comes to Black Swan events— though, again, not Mother Nature, thanks to her construction, or more ancient types of markets (like the souks), unlike the ones we have now. Let me simplify my take on intervention. To me it is mostly about having a systematic protocol to determine when to intervene and when to leave systems alone. And we may need to intervene to control the iatrogenics of modernity— particularly the large-scale harm to the environment and the concentration of potential (though not yet manifested) damage, the kind of thing we only notice when it is too late. The ideas advanced here are not political, but risk-management based. I do not have a political affiliation or allegiance to a specific party; rather, I am introducing the idea of harm and fragility into the vocabulary so we can formulate appropriate policies to ensure we don’t end up blowing up the planet and ourselves.
Instead, he only seeks non-naive interventionism.
Also, Taleb writes about the urge of “not doing nothing.”
A ginger tabby named Orlando beat a team of investment professionals and a group of students in a year-long stock-picking experiment conducted by the British paper The Observer. Orlando picked his stocks by throwing a toy mouse at a grid of companies, while his human opponents possibly used methods involving “research” and “thinking.”
At the end of the year, Orlando’s picks had returned nearly 11 percent, while the pros had gained just 3.5 percent. The students lost money on the year. (In comparison, the Standard & Poor’s 500-stock index rose 13 percent last year; they all would have been better off just buying an index fund.)
Orlando joins a long list of famous stock-picking animals that have made stock-picking humans look ridiculous through the years. They include Adam Monk, the cinnamon-ringtail monkey who successfully picked stocks by circling their ticker symbols in the newspaper, beating the market and shouty CNBC personality Jim Cramer.
Then there’s Lusha the Russian circus chimpanzee, who reportedly beat 94 percent of Russian investment managers one year by picking cubes with company names.
I just started reading Nate Silver’s book, The Signal and Noise. So far it is interesting, but it seems to rehash many of the points Future Babble made about the fallacy of predictions. And I’m pretty sure that at least every other book I read cites Philip Tetlock and/or Danny Kahneman. This topic seems to be amply discussed.
Justice Breyer is renowned for his long-winded hypothetical questions that seem to meander aimlessly in the pursuit of who knows watch–but this is not so. After studying way too many oral arguments, certain trends and patterns emerge from Justice Breyer’s hypos. They are indeed traps. I call them Justice Breyer’s Patch.
Here is the first installment: “Tell me if I’m wrong.”
Very often Justice Breyer will play stupid (he’s not) and ask the advocate to tell him that he is wrong about something. Usually, it is something to the effect of, “I could not find a single case that supports X” Or, “could you find anything in the statute that said X?” Breyer follows this confusion by saying something to the effect of, “Please tell me I’m wrong.” (Often Justice Scalia will seize this moment to take a shot at SGB). By this time, the advocate knows, or should know, that Breyer is not wrong. There is no case or statute that answers his question. That’s why Breyer asks it. Often the advocate will try to hedge the question, and Breyer will answer it for him, and say something like, “Well I looked and I couldn’t find anything.” Sometimes he’ll say, “My clerks searched, and they were unable to find anything!” At this point, the advocate has been thrown, head-first, into the Breyer patch.
This trap Justice Breyer set for Paul Clement during the Medicaid arguments in NFIB was lethal.
Breyer asked, “So I want to know where this idea came from that should State X say I don’t want the new money, that the Secretary would or could cut off the old money?”
Clement replied, “Now, in light of that separation by Congress itself of the newly eligible individuals from the rest of the program, it’s very hard to understand Congress’s decision to say, look, if you don’t want to cover these newly eligible individuals, you don’t just not get the new money, you don’t get any of the money under the –”
Breyer was waiting for just that question, and pounced. “Where does it say that?”
In one of the few occasions where Clement seemed surprised by the question, “It says it at.” Clement sutters, perhaps realizing he did not have the answer to that question–or did not want to give it. “well, it—where does it say what, Justice Breyer?” This was the only time during the entire argument that Clement asked a Justice to repeat a question–and he handled some very obtuse questions.
JUSTICE BREYER: What you just said. You said Congress said, if you don’t take the new money to cover the new individuals, you don’t get any of the old money that covers the old individuals. That’s what I heard you say.
MR. CLEMENT: Right. And then —
JUSTICE BREYER: And where does it say that?
After Clement offered several citations to his briefs. You can hear Justice Breyer coyly flipping through the pages of the “blue brief,” knowing full well that the answer was not there.
JUSTICE BREYER: I want the part about the funding cutoff.
MR. CLEMENT: Right. And there, Justice Breyer —
Interrupting him almost immediately, Justice Breyer interjected “And that cite section is what?”
Clement answered, “I don’t have that with me –”
Again interrupting Clement–he wasn’t really interested in the answer–Justice Breyer breamed, “Well, I have it in front of me.”
Clement mused, “Great. Perfect. Thank you.”
JUSTICE BREYER: And I’ll tell you what I have, what I have in front of me, what it says.
MR. CLEMENT: Right.
JUSTICE BREYER: And it’s been in the statute since 1965.
MR. CLEMENT: Exactly.
JUSTICE BREYER: And the cite I have is 42 U.S.C. Section 1396(c). So are we talking about the same thing?
Clement knew that was the exact statute at issue. He mentioned it once in his brief in a footnote.
MR. CLEMENT: I — if that’s the — if that is the provision that gives the Secretary among other things the authority to cut off participation in the program, yes.
Breyer spoke over Clement, eager to make his point, and began, “Yes. Okay. And here’s what it says at the end.”
JUSTICE BREYER: It says, “The Secretary shall notify the State agency” — this is if they don’t comply — “that further payments will not be made to the State, or in his discretion, that payments will be limited to categories under or parts of the State plan not affected by such failure, which it repeats until the Secretary is satisfied that he shall limit payments to categories under or parts of the State plan not affected by such failure.”
So reading that in your favor, I read that to say it’s up to the Secretary whether, should a State 2 refuse to fund the new people, the Secretary will cut 3 off funding for the new people, as it’s obvious the 4 State doesn’t want it, and whether the Secretary can go 5 further. I also should think — I could not find one 6 case where the Secretary ever did go further, but I also 7 would think that the Secretary could not go further 8 where going further would be an unreasonable thing to 9 do — since government action is governed by the 10 Administrative Procedure Act, since it’s governed by the 11 general principle, it must always be reasonable. 12 So I want to know where this idea came from 13 that should State X say I don’t want the new money, that 14 the Secretary would or could cut off the old money?
Clement countered, “what’s coercive is not the absolute guarnatee that the Secretary could cut off every penny, but the fact that she could.” This very discretion is what made the law coercive. But this discretion had been on the books since 1965. Thus, Roberts, joined by Breyer and Kagan, held that it was constitutional as applied to the “old” medicaid, but unconstitutional as applied to the “new” medicaid for states that decided to opt out. Boom.
Breyer jumped right in. “All right. Now, let me relieve you of that concern.” “And should a Secretary cut off more money than the Secretary could show was justified by being causally related to the States’ refusal to take the new money, you could march into court with your clients and say, Judge, the Secretary here is acting unreasonably.”
Breyer quipped, “Now, does that relieve you of your fear?”
MR. CLEMENT: It doesn’t for this reason, Justice —
JUSTICE BREYER: I didn’t think it would, but I– (Laughter.)
This colloquy, by the way, helps to explain, in my mind at least, how Breyer joined the Chief’s opinion. I’ll comment later on Kagan’s vote.
A few other examples.
All right. Now, you will tell me that I’m wrong by citing some cases that show I’m wrong. And that’s what I’m asking. I want to be told I’m wrong, sort of.
MR. WALL: And I guess what I want to tell you is there aren’t cases out there one way or the other. There aren’t cases endorsing or declining to adopt the discovery rule in the context of fraud or concealment with civil penalty actions —
JUSTICE SCALIA: You’d expect that – you’d expect there to be some cases in a couple of hundred years.
JUSTICE BREYER: No, I haven’t found one.
Chafin v. Chafin (2012):
JUSTICE BREYER: Am I right or wrong? I want to know if I’m right or wrong.
Kirtsaeng v. Wiley and Sons (2012):
JUSTICE BREYER: Am I right; or, if I am wrong, why did they change it?
DePierre v. United States (2011):
JUSTICE BREYER: It’s my understanding here that — that the problem in this case — tell me if I’m wrong — is because cocaine can become — can be a salt. People sniff it often, I guess, if it’s a salt. And *35 that’s bad. And then there’s a kind that’s worse, that’s freebase or crack, and that isn’t a salt and it isn’t a poodle and it isn’t an acid. It takes a base form, right?
Ortiz v. Jordan (2010):
JUSTICE BREYER: Am I wrong?
MR. MIZER: Partly, yes, Your Honor. To the extent the argument is that there needed to be a 50(b) motion
Premo v. Moore (2010):
JUSTICE BREYER: Now I haven’t read this very thoroughly, so — so you — yet — so you tell me if I’m wrong about that.
Andersen v. Carlisle (2009):
JUSTICE BREYER: So is that — is that right, or is it wrong? What’s your insight or guess on that?
Nken v. Flip (later Holder) (2009):
JUSTICE BREYER: Was I right or wrong?
Klein v. Board of Trade of the City of New York
JUSTICE BREYER: Correct me if I’m wrong, but you’re going to be more favorable to this than I expect your opponent. I mean, there is nothing really linguistically or otherwise wrong if you had a statute that said people in the badminton court have to play carefully. And if they hurt somebody on the merry-go-round, they are liable.
Sole v. Wyner:
JUSTICE BREYER: I thought that it — am I wrong about that?
Untied Haulers Assoc. v. Oneida-Herkimer Solid Waste Management Authority
JUSTICE BREYER: Well, I used to teach the subject and I can’t say you’re wrong.
Well the last one didn’t fit the pattern, but it was too good to pass up.
In future research, I’ll dig up some more of the Breyer patches.