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From remarks in Kansas City, MO:

So some of the things we’re doing without Congress are making a difference, but we could do so much more if Congress would just come on and help out a little bit.  (Applause.)  Just come on.  Come on and help out a little bit.  Stop being mad all the time.  (Applause.)  Stop just hating all the time.  Come on.  (Applause.)  Let’s get some work done together.  (Applause.)

…

So there’s a bunch of stuff that needs to get done.  Unfortunately, I think the main vote — correct me if I’m wrong here, Congressman — the main vote that they’ve scheduled for today is whether or not they decide to sue me for doing my job.
AUDIENCE:  Booo —
THE PRESIDENT:  No, no, no — first of all, here’s something I always say — do not boo, vote.  Booing doesn’t help.  Voting helps.  (Applause.)
But think about this — they have announced that they’re going to sue me for taking executive actions to help people.  So they’re mad because I’m doing my job.  And, by the way, I’ve told them — I said, I’d be happy to do it with you.  So the only reason I’m doing it on my own is because you don’t do anything.  (Applause.)  But if you want, let’s work together.
I mean, everybody recognizes this is a political stunt, but it’s worse than that, because every vote they’re taking like that means a vote they’re not taking to actually help you.  When they have taken 50 votes to repeal the Affordable Care Act, that was time that could have been spent working constructively to help you on some things.  (Applause.)  And, by the way, you know who is paying for this suit they’re going to file?  You.
AUDIENCE MEMBER:  No!
THE PRESIDENT:  No, no — you’re paying for it.  And it’s estimated that by the time the thing was done, I would have already left office.  So it’s not a productive thing to do. 

Buried in there is actually an argument about mootness–the claim that if the employer mandate goes into effect in 2016 (as planned), it would moot the Boehner suit.

Tomorrow, the House will hold a hearing on the botched rollout of HealthCare.gov. Here are the key findings from the GAO’s testimony.

• The Centers for Medicare and Medicaid Services, the agency responsible for building the federally run insurance marketplaces, “issued task orders … when key technical requirements were still unknown.”
• When the process began in 2011, CMS obligated $56 million for the federally run exchanges, includingHealthCare.gov. Those costs swelled to $209 million.
• Costs for the federal data hub, which coordinates records and personal information from several state and federal agencies to help the exchanges process applications, rose from $30 million to $80 million.
• “New and changing requirements drove cost increases during the first year of development, while the complexity of the system and rework resulting from changing CMS decisions added to … costs in the second year,” GAO states.
• CMS has paid $12.5 million to CGI Federal, the primary contractor for the site. CMS officials had problems with CGI’s work throughout the process, but the agency only withheld about 2 percent of its payments to the company.
• CMS fired CGI in January and signed a new contract with Accenture. That contract has also seen major cost overruns—from an initial obligation of $95 million to more than $175 million.
• Because CMS’s oversight of the contract with CGI was so poor, CMS officials inappropriately authorized more than $30 million in expenditures. GAO found 40 separate occasions on which work was approved incorrectly.
• “CMS launched HealthCare.gov without verification that it met performance requirements,” GAO said, because the agency pushed back reviews of the site’s performance to just weeks before the Oct. 1 launch.

Basically, the web site was launched on October 1 even though it wasn’t even close to being ready:

Moreover, CMS delayed key governance reviews, moving an assessment of FFM readiness from March to September 2013—just weeks before the launch—and CMS did not receive required governance approvals. As a result, CMS launched Healthcare.gov without verification that it met performance requirements. …

As the October 1, 2013 deadline for establishing enrollment through the website neared, CMS identified significant performance issues involving the FFM contractor, but the agency took only limited steps to hold the contractor accountable.  …

In September 2013, CMS program officials became so concerned about the contractor’s performance that they moved their operations to the FFM contractor’s offices to provide on-site direction.

Some of the elements of the eligibility and enrollment module had not been provided, and the financial management module—which includes the services necessary to accomplish financial interactions with issuers—remained unfinished.

Yesterday I blogged that a website released the names and contact information of over 50,000 Houstonians who voted to signed a petition to put on the ballot an initiative to repeal a discrimination ordinance.

Chris Geidner has an excellent report on the story behind that release:

One of the people who has strongly supported the HERO measure, Houston GLBT Political Caucus treasurer Noel Freeman, told BuzzFeed that he was the person who made a public records request for the petitions — and that he did so on the day they were submitted.

“If somebody feels that they’re being publicly shamed by these petitions being online, I think that says more about them than it does about the people who are putting the petitions online,” Freeman said on Wednesday. “If you’re embarrassed that your political views are on public display, then maybe you should rethink your political views.”

Although Freeman said he isn’t behind the website, he said that he knows who is behind the site and noted that he “shared them [the petitions] with a number of people. They got into the public domain pretty quickly.”

Though in an absurd twist of irony, the creators of the website are choosing to remain anonymous, out of fear of harassment.

In a twist, the people behind the website, HEROpetition.com, are themselves remaining anonymous. A person responding to an inquiry made to the email address provided on the website, HEROpetition.com, told BuzzFeed Tuesday night that they “aren’t identifying people associated with the website to protect our personal safety.”

The domain name was registered on July 3 through Domains By Proxy, a service whose purpose is to mask the identity of a person purchasing a web domain. The person or people making the petitions available to all defended their anonymity.

“The personal safety risks to the people who run this site are far greater than the risk to any one individual among tens of thousand who signed the petition,” the person responding to inquires made at the website’s email address wrote to BuzzFeed. “[S]ome people claim they will be the victims of harassment because of this site, but some of them have no problem coming after the folks on this side. People who have spoken out publicly in favor of HERO are already facing threats against their jobs.”

Freeman also defended the petition posters’ anonymity.

“We know who runs the website, and the people who run the website have requested to remain confidential. And we totally respect that,” he said. “I’m very much a public face of ‘the movement,’ and my own personal experience has given some people in the community pause. I’ve had people come after my job, I’ve had people do open records requests on my email because I’m a public employee. I’ve got video cameras on my house for a reason.”

In an earlier post, I noted that Erwin Chemerinsky incorrectly labelled Bush v. Gore as case by the Roberts Court. Bush v. Gore was decided in 2000 and CJ Roberts was confirmed in 2005. But maybe I was wrong.

David Cole, in his review of several recent books about the Supreme Court argues that the Roberts Court began with Bush v. Gore:

The Roberts Court, which just concluded its ninth term, was officially launched on September 29, 2005, when Justice John Paul Stevens administered the oath to the newly confirmed chief justice, John Roberts. In a more significant sense, however, the Roberts Court’s birth—or at least conception—should be dated five years earlier, to December 12, 2000. That’s the day the Supreme Court decided Bush v. Gore, ending a recount of the too-close-to-call Florida presidential vote, and ensuring that George W. Bush would become president with half a million fewer popular votes than Al Gore. The Court’s five conservatives—William Rehnquist, Anthony Kennedy, Antonin Scalia, Sandra Day O’Connor, and Clarence Thomas—relied on a wholly unprecedented theory of the Constitution’s guarantee of “equal protection of the laws,” which they announced would apply this one time only, to block the Florida recount, and President Bush took office.

Bush was reelected in 2004, this time without needing the Supreme Court’s help, and that meant that when Justice O’Connor announced her retirement and Chief Justice Rehnquist died in office in 2005, President Bush, not Al Gore or a successor, had the privilege of appointing two new justices and shaping the Court for years to come.

Cole then lists a parade of non-horribles that would have happened if President Al Gore replaced Rehnquist, with, I don’t know, Chief Justice Ruthe Bader Ginsburg, and added, why not, Associate Justice Diane Wood. And, to be sure, Justices Souter and Stevens probably would have retired sooner, giving Gore more choices. So let’s add Justices Kagan and Sotomayor for good measure. But would O’Connor have been so willing to retire early? Anyway, here’s the alternate reality:

Had a Democratic president been able to replace Rehnquist and O’Connor, constitutional law today would be dramatically different. Affirmative action would be on firm constitutional ground. The Voting Rights Act would remain in place. The Second Amendment would protect only the state’s authority to raise militias, not private individuals’ right to own guns. Women’s right to terminate a pregnancy would be robustly protected. The validity of Obamacare would never have been in doubt. Consumers and employees would be able to challenge abusive corporate action in class action lawsuits. And Citizens United v. Federal Election Commission, which struck down regulations on corporate political campaign expenditures and called into question a range of campaign spending rules, would have come out the other way.

But it was not to be.

Of course, a final recount  of all ballots would most likely given Florida to Bush, by a razor-thin margin. As the Washington Post reported in 2001:

In all likelihood, George W. Bush still would have won Florida and the presidency last year if either of two limited recounts — one requested by Al Gore, the other ordered by the Florida Supreme Court — had been completed, according to a study commissioned by The Washington Post and other news organizations.

But if Gore had found a way to trigger a statewide recount of all disputed ballots, or if the courts had required it, the result likely would have been different. An examination of uncounted ballots throughout Florida found enough where voter intent was clear to give Gore the narrowest of margins.

Interestingly, the litigation strategies of both Bush and Gore were probably counterproductive:

But an examination of the disputed ballots suggests that in hindsight the battalions of lawyers and election experts who descended on Florida pursued strategies that ended up working against the interests of their candidates.

The study indicates, for example, that Bush had less to fear from the recounts underway than he thought. Under any standard used to judge the ballots in the four counties where Gore lawyers had sought a recount — Palm Beach, Broward, Miami-Dade and Volusia — Bush still ended up with more votes than Gore, according to the study. Bush also would have had more votes if the limited statewide recount ordered by the Florida Supreme Court and then stopped by the U.S. Supreme Court had been carried through.

Had Bush not been party to short-circuiting those recounts, he might have escaped criticism that his victory hinged on legal maneuvering rather than on counting the votes.

In Gore’s case, the decision to ask for recounts in four counties rather than seek a statewide recount ultimately had far greater impact. But in the chaos of the early days of the recount battle, when Gore needed additional votes as quickly as possible and recounts in the four heavily Democratic counties offered him that possibility, that was not so obvious.

Bob Ambrogi has a feature piece in the ABA Journal on Legal Zoom, and the move towards legal deregulation. Here is the intro:

In recent years, LegalZoom has faced lawsuits in eight states seeking to shut it down for violating state laws barring the unauthorized practice of law. But with a notable recent victory in South Carolina, and having fended off all but one of the other lawsuits, LegalZoom is anything but shutting down.

To the contrary, LegalZoom, which began offering legal forms online in 2001, is poised to significantly broaden the range of services it offers consumers and small businesses. Already it has expanded into prepaid legal services, operating plans in 41 states and the District of Columbia. Now it is looking ahead to offering a continuum of products and services, from simple forms to full-fledged legal advice, with both lawyers and nonlawyers in the mix.

“We need to continue to evolve, continue to innovate and continue to connect consumers with the services that are right for them at a price they can afford to pay,” says Chas Rampenthal, LegalZoom’s general counsel.

Meanwhile, legal ethicists such as Deborah L. Rhode, director of the Center on the Legal Profession at Stanford Law School, say it is time for the legal profession to drop efforts to shut down such companies for UPL and instead focus on how best to regulate them to protect their customers.

“With respect to LegalZoom, the train has left the station,” Rhode says. “They’ve got a couple million satisfied customers and it’s going to be really hard for anyone to shut them down.”

In a May Fordham Law Review article, Rhode and co-author Lucy Buford Ricca, executive director of the Center on the Legal Profession, argue that the legal market is primed for a total transformation driven by innovative companies such as LegalZoom. “From a regulatory perspective,” they write, “the key focus should not be blocking these innovations from the market, but rather using regulation to ensure that the public’s interests are met.”

Bob offers a useful summary of the North Carolina, South Carolina and other litigation:

In 2008 the North Carolina bar issued LegalZoom a cease-and-desist letter. The matter made its way to North Carolina business court where, last March, a judge put off deciding the UPL issue, saying he required additional evidence to fully understand LegalZoom’s process for preparing complex documents.

Two weeks earlier, the high court in neighboring South Carolina gave LegalZoom a green light to operate.

Adopting the findings of a special referee it appointed to investigate the company, the court held that LegalZoom’s practices “do not constitute the unauthorized practice of law.”

The referee compared the functionality of LegalZoom’s software to a scrivener who transcribes information without giving advice or consultation: “LegalZoom’s software acts at the specific instruction of the customer and records the customer’s original information verbatim, exactly as it is provided by the customer. The software does not exercise any judgment or discretion, but operates automatically in the same fashion as a ‘mail merge’ program.”

Previously, LegalZoom settled UPL suits in California, Missouri and Washington. Lawsuits in Alabama and Ohio were dismissed. Besides North Carolina, the company still faces a challenge in Arkansas, where the matter is in arbitration.

The South Carolina judgment isn’t as good as it may seem. As I noted in a previous post, the ruling was really, really narrow.  It’s “scrivener” analysis was limited to merely ministerial tasks. Not the types of legal services that border on offering advice.

“LegalZoom’s software acts at the specific instruction of the customer and records the customer’s original information verbatim, exactly as it is provided by the customer,” Newman wrote in the report, adding that its “does not exercise any judgment or discretion, but operates automatically in the same fashion as a ‘mail merge’ program.”

The key is that no “judgment or discretion” was used. Scott Greenfield jumped on that. These are the hallmarks of any meaningful legal service.

In any event, Bob says the UPL debate may “no longer [be] relevant.”

With LegalZoom’s train steaming along at full throttle, and given other changes in the legal industry, the unauthorized practice debate is no longer relevant, many say.

“The best approach is to recognize that these new players are providing a kind of legal service,” says Andrew M. Perlman, director of the Institute on Law Practice Technology and Innovation at Suffolk University Law School. “What we call it is less important than what we do with them. We need to find a way to appropriately regulate what they do so that the public is protected.”

Regulation, Perlman believes, would encourage innovation in the delivery of legal services by eliminating the legal uncertainties faced by companies such as LegalZoom. “The more we resolve these questions through regulation, the more we’ll free up innovation.”

This is kind of like the Uber strategy. Get enough people to love your product that does not comply with regulations, and the government will have to change the rule. In fact, this has worked in places like Virginia and elsewhere.

I’m not persuaded that lawyers will see it this way. A single UPL suit could shut down their entire business. One injunction will do the trick. Bob makes the observation that I made a year ago:

No one can say whether LegalZoom has seen the last of these UPL suits. But in its 2012 SEC filing, it noted the lawsuits then pending and added: “We anticipate that we will continue to be the target for such lawsuits in the future.”

I’ve had this friendly conversation with several legal-tech startups. Most have decided to go the Uber way.