Category Archives: Laws

HobbyLobby-37_600

No Surprise in Hobby Lobby

As this blog is at least partly about the law, here’s my brief take on today’s Hobby Lobby case: although it seems strange and petty to me that it’s 2014 and we’re still having debates about contraception, it’s an unsurprising decision.

Why unsurprising?  Two reasons:  First,  if the government admits that some groups (e.g., non-profit corporations) have rights under the Religious Freedom Restoration Act, and it also admits that for-profit business owners have such rights, it’s pretty hard to make a cogent argument why for-profit corporations shouldn’t also have such rights.

Secondly, whether the RFRA precludes a particular form of regulation often comes down – as it did here – to a question of the “least restrictive means.”  As in “is this regulation set up in a way to achieve the government’s goal while interfering as minimally as possible with religious rights?”  And again, it’s really hard for the government to win this point when it has already granted exceptions to the contraceptive mandate for religious non-profits.  

Ultimately, it comes down to the fact that Congress enacted a law – in response to a Supreme Court decision that many felt was unduly dismissive of religious concerns – that offers sweeping protection for religious rights. It shouldn’t surprise anyone that the government is going to be held to task in showing that it is complying with that law.  And on these facts, in this case, the government had a steeply uphill climb to make.

Cantor’s Loss Shows Why We Don’t Need Campaign Finance Regulation

Eric Cantor, the House Majority Leader, just suffered a humiliating loss in the Virginia primary. Overnight, he goes from being one of the most powerful people in Washington to just another K Street insider.

I don’t feel sorry for him, and even will indulge in a little Schadenfreude at the idea of a politician being humbled – even if the guy who beat him has even more reprehensible politics than the soul-less Cantor.

But his loss helps bring into focus one of the key points I’ve been trying to make to those apoplectic about the Supreme Court’s perceived loosening of campaign finance regulation in the Citizens United and McCutcheon decisions: money just isn’t as important as it used to be when it comes to campaigns.

But first, I need to point out a couple of key points that many of those in favor of campaign finance regulation gloss over:

  1. Political speech of all stripes is at the core of the First Amendment; and
  2. The government carries a very high burden to show that regulation of speech that is otherwise protected by the First Amendment is both necessary and narrowly focused at a particular harm.

This is why quid pro quo, direct campaign contributions are an easy case, and why broad restrictions of the sort at play in Citizens United and McCutcheon were doomed to fail.  It’s hard to regulate speech – you’ve got to have a very real harm and a very targeted, effective means of addressing that harm.  And this is how it should be; it’s no place for “feel good” legislation.

But for those frustrated that the First Amendment prohibits the sort of government speech control they’d like to see, the Cantor result should be seen as a panacea.  Perhaps they don’t need to wail about the injustice of it all, propose ridiculous constitutional amendments, and engage in spin (“Corporations Aren’t People! “Money isn’t Speech!”) worthy of the most hackneyed campaign. For Cantor’s loss – which follows the poor ROI of campaign spending in the 2012 and 2014 national campaigns – demonstrates that it’s getting harder for money to “buy” elections.  For grass roots groups, it’s never been cheaper and easier to organize and get the word out.  If you’ve got a message that resonates, social media provides the sort of publishing platform that only the most plutocratic of plutocrats could afford a generation ago.

In Virginia tonight, a challenger with less than a quarter million in campaign funds knocked off the second-highest ranking member of the House, an incumbent with millions of dollars at his disposal.  This should be seen as very good news to those who want the “corrupting power of money” out of the process – even as it provides further evidence that attempting to regulate campaign speech may be as unnecessary as it is unconstitutional.

 

Puget Sound Bike Share

Seattle Bike Share Nears

With Seattle (finally) getting a bike share system later this year, the Puget Sound Bike Share program has put together an interactive site showing proposed bike share station locations.  You can vote up the stations you like, and propose other locations.

I expect the system will be fairly limited at first, but could expand rapidly if bike share proves popular.  The problem, of course, is Seattle’s helmet law, which our City Counsel hasn’t seen fit to eliminate (preferring to spend time on priorities like protecting the taxicab monopoly and running experiments on the continued viability of Seattle small businesses).  As a result, every station is going to need these god-forsaken “helmet vending machines,” which will add further friction to anyone’s decision to take a spin on one of the yet-to-be-named system bikes.

Of course, I will plunk down my annual membership to support the system.  Having used bike share in other cities, I love the idea of having this option here.  But I’m not optimistic about the success of the system as long it has to labor under nanny-state restrictions. 

Foggy street with leaves

Seattle’s Unclean Streets

Here’s another gripe about Seattle’s lack of bike infrastructure – or really, its lack of attention to the basic blocking and tackling of running a city.

In a city of foliage-blocked stop signs, roads laced with seams, cracks and a shameful number of potholes, and a nod to cyclists in the form of paint splashed on the road, we can add this: a near-total lack of attention to street cleaning.

When I lived in San Francisco, even the residential neighborhoods had once-weekly street cleaning – a four-hour window where parking was forbidden, on pain of being towed.

And the city meant it, as I found out more than once when I forgot to move my car.

Here?  While it’s big news that we’re getting a fancy cycle track cleaner for Broadway, it’s more telling that it never occurred to the city that they’d need the thing.  And in Seattle’s leafier neighborhoods?  Forget about it.  Those leaves fall, and absent conscientious property owners cleaning the streets in front of their places, those leaves remain to moulder and create giant slick patches all along our residential streets.

I get that there are city budget priorities, and tax dollars only go so far.  But I bet we could cover a fair bit of the cost with all of the impound fees.

And until then?  Yet another reason to just take the lane.

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Cyclist Obey!

Bike Snob (of course) nails it far better than I could in addressing the “you cyclists should just follow the rules and send the right message” crowd:

It’s impossible, and in fact downright stupid, to “obey the letter of the law” on your bicycle when you find yourself in a situation where the streets and the laws are designed specifically for cars, which describes most of the United States.  Moreover, it’s gone way, way past the point where cyclists should need to prove to the very people who are fucking us (that’s drivers and police officers) that we “deserve respect.”  We deserve respect for being human, and it ends there.  Yet we’re supposed to be good little boy scouts and girl scouts–even when it’s more dangerous for us to do so–to prove we’re deserving of not being killed?  That’s just stupid and insulting.

Seriously, read the whole thing.  Hilarious, and right on.

cocktain napkin agreement

Sign on the Line that is Dotted?

So the other day I was at work, reviewing a contract. It was no big deal; a standard form agreement for a venue were renting to host an event in. I wouldn’t ordinarily spend more than a few minutes on such a thing – it’s a one-off deal, less than $20k in value, etc. Not worthy of anything more than a cursory legal review.

But it had a quirky clause that basically said that if anything happened to prevent our event from happening (including things in the venue’s control, or due to their systems, labor relations, etc) our only recourse was to reschedule. That doesn’t work very well you’re setting up an event with out-of-town visitors that must happen on a specific date.

No biggie; I sent the venue an email telling them to cross it out and replace it with a few sentences I quickly ginned up that gave us the right to find alternate arrangements if they couldn’t come through.

OK, they said.  But we need a legal addendum.

Fine, I said – just attach my email to the contract.  Done.

Oh, no, read the indigent email I got back.  We need a LEGAL DOCUMENT.

So I put my email into a document titled “Contract Addendum” and sent it back to them.

What a freaking waste of time and effort.

Because here’s the dirty little lawyerly secret (and in fact it’s so secret many lawyers don’t get it): almost anything can be a “legal document.” Outside of a handful of areas where written documentation is required by law (chiefly real estate transactions and estate planning documents), the relative levels of “legalese” and formality that go into a contract are driven entirely by evidentiary concerns, inertia and ass-covering.

Here’s what I mean: for most transactions, you could rely on a verbal agreement – the quintessential”handshake” deal. Why? Because many deals are simple and straightforward, and most of the time both parties will do what they said they were going to do.

The problem, of course, is that if any question arises about the terms of the deal, you haven’t got anything written down.

So you write it down. This is a critical step. In fact, I’d say that 80-90% of the value of a written contract is obtained by the simple step of writing down the basic terms of the deal. It could be on a cocktail napkin, in an email exchange, or via a simple document. Just having the basic terms on paper, clearly laid out, so anyone can refer to them if they have questions about the parameters of the deal.

Beyond this point is where the legal surplussage starts to kick in. Terms to address incredibly remote contingencies. Ritualistic signature requirements. All things to button up problems that could arise – but doing so in advance extracts a cost.

Like the inanity of asking for “wet” signatures. Requiring a signature at all is simply a method of creating evidence (which will most likely never be used) to prove that your counterparties actually agreed to the terms of the deal.  The bigger or more complex the deal (or the less you trust the other side), the more you want actual signatures.  But do you really need 4 original signatures?  Will a copied version not suffice?

If you don’t have a good answer to this question – and indeed, to the need for any provision in your contracts that may create friction, slow things down, or prevent a deal from being done – you need to ask whether that provision can be excised from the contract.

Too much legal process around routine deals is a bad business practice. Yes, having that belt and those suspenders may buy you some clarity in the once-in-a-blue-moon case where someone claims they didn’t agree to your deal, or where your double-secret indemnity provision comes into play. But this contingent benefit is bought, every time, at a very real cost: it erodes trust with your business partners.  It can crater deals.  And it can make it harder to win follow-on business.

Because after all, the relationship and the deal are what’s most important. And sometimes – hell, most times – a cocktail napkin approach is really all you need.

 

A Bird on a Dead Wolf

The Getty Open-Accesses Images

As an (occasional) blogger and avid reader of blogs, I love the use of images.  You may have noticed that I’ve started using various images I’ve taken via Instagram to illustrate my blog.

I also regularly do seminars for lawyers on the law of blogging.  And I always, always get someone who thinks it’s OK to just clip images off the web without thinking about copyright.

And these are lawyers.

So I was delighted to see that the Getty Museum has freed up some 4600 images of works from its collection for nearly-unfettered use.  Delighted because it gives bloggers an easy source of images, and delighted because the images include many wonderful pieces from the classical and medieval eras.

Expect to see them start getting sprinkled in here.  Many ancient themes are timeless, capable of expressing both existential angst AND frustration over potholes in Seattle’s shitty bike lanes.

Or something like that.  Anyway, above is A Bird on A Dead Wolf (page from an illuminated manuscript, about 1270), from the J. Paul Getty Museum.

 

palm trees

George Zimmerman Verdict Follies

The George Zimmerman murder trial out of Florida hadn’t been big on my list of news stories to follow, but I’ve found the fallout from the verdict pretty darn strange (or maybe I’m just easily amused):

  • The crybaby prosecutor: it should be obvious to most prosecutors that the professional response to a trial loss is to say that you respect the process and move on with life.  That is, unless you’re Zimmerman prosecutor Angela Corey, who apparently has a record for being a mite thin-skinned.
  • The passive-aggressive defense counsel:  Zimmerman’s attorney, Don West, when asked after the verdict for his thoughts on the trial judge, declined comment stating “I’d like to keep my bar license for a few more years.”  Dick move; in one step he communicates both his low regard for the judge and his lack of understanding of the first amendment rights of attorneys.  Yes, Mr. West, you are free to criticize the judiciary – and specific judges – without worrying about losing your law license.  Of course, it’s best to follow the counter-example of Angela Corey and do so professionally.  Which is not, incidentally, something anyone would confuse your snide comment with.  
  • The strange bedfellows: Right-wingers celebrating a defense victory over the state!  Left wingers bemoaning a criminal defendant going free!  This was very much a stand-sit moment, and it’s offered great moments in squirm-itude watching those on both the right and the left try to justify their positions.
  • Support the State!:  For me, the ironic topper was my beloved local anarchists calling for protests against the verdict.  I didn’t know that anarchists thought the police and prosecutors should have more power!

And despite the unfortunate, avoidable circumstances, despite the bumbling of law enforcement and prosecutors, despite the crappy laws and attitudes in Florida, despite the built-in biases and suspicions that leads to events like this, I’m left with this thought:

I still prefer to live in a society where the state is held to its burden, where the accused has a full opportunity for defense, and where it’s at hard for people to be locked away.  We may fall far from the mark on these fronts – look no further than our woefully underfunded public defender programs.  But if there’s one lesson the Zimmerman case offers, it isn’t that we need to walk back the rights of defendants.

Train station

A Nation of Compliance Officers

I have conflicting feelings about Edward Snowden, the shrinking-violet-of-a-spy who leaked the info on the PRISM program being run by the NSA.

– He violated every term of his employment contract and who knows how many oaths he took.

– He knew exactly what he was signing up for in working (even as a contractor) with the NSA.

– The programs involved all appear to have been lawful.

But even with all that, there’s the fact that Snowden’s act of civil disobedience also brought renewed focus to the runaway nature of our modern surveillance state. And that’s a necessary thing, even if Snowden’s methods and motives in getting us there are less-than-pure.

I’m reminded of this recent piece from Reason.com on the failings of the “compliance mindset.” For too many, all questions are answered by just following the rules. But that doesn’t cut it. There are too many times when circumstance, opportunity or risk demand that the rules be broken.

Of course, inherent in civil disobedience – but not always well-understood – is that there are consequences for breaking the rules. Snowden may be naive, he may be narcissistic, he may be a coward. His running to the largest surveillance state in the world suggests some combination of all three.

But he WILL suffer the consequences for his choice. While I question his underlying motivation and methods, I don’t condemn him for breaking the rules. He’s provided the spark for a much-needed discussion, one that will hopefully yield better protections from intrusive government surveillance. And that’s not a discussion we get to have if we become, as Reason’s Ira Stoll put it, a “nation of compliance officers.”

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Lukewarm on Seattle Bike Share

Hub and Bespoke blog wrote the other day about Seattle bike share, with some nice links to posts about how great these systems are in other cities. And they are great; I love the systems I’ve used when traveling (like Capitol Bike Share in DC). When done right, urban bike share is a revelation: easy to use, super convenient, a whole new and freeing way to move about and experience a city, whether you are a resident or a tourist.

But I’m worried that Seattle’s system will turn out more like Melbourne’s – tepid and underused due to the requirement that all riders wear helmets. And it’s our own fault, for not seriously entertaining the possibility, that maybe – just maybe – we could get out of our nanny-state mentality and question whether Seattle really needs a mandatory bike helmet law.

Or whether the bike share system could have an exemption from the law.

Instead, we’re going to “solve” the problem with helmet vending machines.

Much as I’d like this to work, and as much as helmet vending machines are great for those choosing to wear a helmet, I fully expect that Seattle’s system is going to be a pale shadow of what it could be until and unless the mandatory helmet law is lifted.