You'd Have to be Crazy to Oppose CPSIA

I’ve been pretty critical of the Consumer Product Safety Improvement Act. But, in the face of a little logic and deductive reasoning, I have to admit I’ve been wrong.

Sure, CPSIA’s litany of problems is well documented. To name just a few: the law is forcing libraries to sequester all children’s books printed before 1985. Thrift stores are dumping their inventory into landfills, and small businesses have closed shop to avoid the crushing cost re-doing the same tests their suppliers have already done. Libraries pulling their only copy of Where the Sidewalk ends from their shelves? Heck, even the Consumer Product Safety Commission itself has deferred enforcement of key provisions while it continues to try to figure this thing out.

So, stop recycling and fill up the landfills? Unnecessarily penalize small business while passing a 700 billion dollar “stimulus” package? Sounds crazy. It would be pretty easy to allow libraries continue to lend older books to “children” as old as 12. And it would be pretty easy to exempt resale shops from testing everything on the shelf (while still prohibiting dangerous levels of lead). And it would be pretty easy to let small business rely on the testing done by their suppliers. Who could argue with that?

Well, the law's apologists, drafters and champions, like the venerable New York Times could, that’s who. Not that they’ll address any of these issues in any kind of specific way. Nope, they just keep saying, CPSIA is just fine the way it is. Crazy. Almost like… OH MY GOD. It’s so obvious, now. The people who continue to defend CPSIA must have been chewing on pre-1985 children’s books. Their minds must have been muddled by lead poisoning. If only they could have been saved by CPSIA—why didn’t we pass it sooner? How could I have been so blind?

We cannot let this kind of tragedy happen again. We need the protections of CPSIA if only to prevent the passage of another CPSIA.

Responsibility

Today's Wall Street Journal contains an editorial angrily maintaining that The Treatment of Bush has been a Disgrace. In taking this position, the WSJ commits the very same sin that like-minded conservatives have projected onto Obama supporters: putting words over substance. Citing a speech from 2004, Mr. Shapiro complains that Bush reached out in a bi-partisan manner only to be rebuked from all sides. Most of the time, when you're pointing your finger out in all directions... well, you know.

The reality is, Bush's bi-partisan "Uniter" persona existed only in speeches. In practice, the Bush Administration has pursued a firm policy of "my way or the highway." Gleefully defying the views of other world leaders, sister branches of the federal government and even members of his own party, Bush turned out to be much more a unilateralist. The Administration's single minded approaches to Guantánamo Bay, prosecution of the Iraq war, national security and fiscal discipline alarmed many at home and squandered the good will garnered by the U.S. after 9/11 abroad.

President Bush is not a poor victim of circumstance and irony of hearing a conservative make that argument shows just how much they've forgotten their own principles. The stunning rejection of Republicans in this election has to reflect on the person leading the Party and the Country for the last eight years. The buck stops at the top. Or at least it used to.

Does this Policy Make me Look Fat?

Presidential politics has reached a fever pitch with the nastiness hitting a level I don't remember ever seeing before. A lot of the really nasty talk comes from the "love it or leave it" school of thought. This place is pro-America, that guy hates our country, if you think that, you should move to Iran. That kind of stuff.

Another, related group reminds me of the old "Why ask Why" beer commercials. These people savage "elites" a euphemism for people who are educated or urban. Elites are not like you. For all their smarts, they don't live in the real world. Worse, they don't support our country because they they have negative things to say about what's going on.

The thing is, our Country was created by elites. The people who designed our government, wrote our Constitution and laid the bedrock for our civilization were smart, worldly and educated. If someone had told them to "love it or leave it," they would have laughed out loud. These people disagreed loudly and strongly with one another. But there was never any doubt they all cared passionately about the place they were making.

So, a little more than 200 years later, I think it's still OK to want leaders who are smart, educated and have seen more than their own back yards. And it's definitely OK to be critical of our government's actions. That's the very First Amendment to our Constitution. In fact, it's more than OK. It's patriotic.

American Lawyer's Litigation Daily: Spam Eggs Sausage & Spam

A while back, someone twittered about a guest blog she had posted on The American Lawyer and I wanted to read it. The site made me register. I hate that, but fine, I did it anyway. And I'm sure I checked / unchecked all of the boxes necessary to make sure I would not get any email. I'm very careful about that and I'm always skeptical. But this was the American Lawyer, they wouldn't spam me, right?

Sure enough, the next day, I received two emails from American Lawyer, the Litigation Daily and some other tidbit I can't recall. I got them the next day, and the day after that, and so on. Every morning was the same ritual. I would see them pop up on the iPhone, get annoyed, and delete them.

A few days ago, I finally decided to invest the time to "unsubscribe" these mosquitoes. It was really easy, I just clicked a link and had to say why I was unsubscribing. Amazingly, there was a choice for "I never signed up to receive emails" or something to that effect. I have to say, that kind of candor put me off guard and gave me more than a little satisfaction. I felt pretty good. Until the next day.

Like the Thing the Wouldn't Leave, the Litigation Daily poked its perky little head into my inbox. I had already invested more time into this than I wanted, but I clicked the email and found the unsubscribe link. This one was different, it asked for my email address. When I typed it in, I got an "error" message, saying I must have made a mistake and that no such email addres was registered. A few seconds later, they sent me another Litigation Daily email, my punishment for trying to check out of Hotel California. The next morning, all was forgiven. My copy of the Litigation Daily arrived, just like nothing ever happened. Guess I didn't really unsubscribe after all, I just ordered American Lawyer's spam eggs sausage & spam. That hasn't got much spam in it, right?

Sorry to Burst Your Bubble

Seems this economy is all about bursting bubbles. The recent failures of two Wall Street stalwarts and the federal bailout of AIG are just part of the fall out. Belts are tightening all over as companies and law firms alike look for ways to trim costs. Even so, one area has held firm through these economic doldrums: the $160,000 first year starting salary paid by the biggest law firms. Will this be the next economic bubble to burst?

There seems to be little justification for these kind of numbers. Loyalty? These salaries don’t inspire lifers. A majority, as much as 75% of all first year associates will take a different job within five years. Markets? The median starting salary for lawyers remains much lower, around 60,000 to 70,000. Admittedly, a pure median oversimplifies the issue, failing to account for differences in geography and practice. Moreover, some point out that the $160,000 is historically low compared with what the partners are making. Still, a median number that far afield ought to raise eyebrows.

This brings me to the real people controlling these numbers: clients. In an economy where every penny counts, clients are likely push back on billable rates. They may wonder why they’re paying so much for lawyers with such little experience. They may be less willing to stay with a firm based on history alone. Fewer clients will assume that the highest rates necessarily mean the best representation. Lawyers and their firms will have to justify the relationship between their quality, expertise and billing rates. If clients tighten their belts enough, there may be enough strain to burst the first year bubble. Especially if young lawyers continue to resist their pressure valve in this equation: more hours of dead-end work.

Take a Stand and Send a Message

Litigation’s a funny business. Everyone gives lip service to making “business decisions,” but a lot of clients (and too many lawyers) litigate by gut. Legal analysis and practical realities take a backseat to a general, but powerful feeling of being “right.” Most of the time, both sides suffer from the same sense of righteousness and make decisions aimed at “taking a stand,” “sending a message” or some other clichéd movie line. Problem is, movie endings almost never happen. A lot of cases grind into stalemates, and some take costly, unexpected turns.

The only real constant: litigation is always an expensive form of entertainment.

A typical story runs like this. I’ll be defending a client in a “bogus lawsuit.” It’s not bogus in the sense it’s legally frivolous. It could be a case where liability is questionable, damages are small or both. The client definitely feels like he’s done nothing wrong, or, has karma on his side for all the times he let things slide with the plaintiff. That’s when it’s time to take a stand and send a message. Buying either cliché can easily cost tens of thousands of dollars in legal fees. In a bogus case, those fees usually bring about the right settlement, sometimes a complete surrender. But most of the time, the client could have settled for less at the outset and maybe even avoided that home equity loan.

Defendants aren’t the only ones buying trouble. Some time ago, a company brought a simple breach of contract action against one of my clients. They were looking for a few thousand dollars and some attorney’s fees. The trouble was, my client had a litany of counterclaims to bring against them. While those counterclaims weren’t simple, they had the potential to be a lot bigger. But there was bad blood between these guys and the company wanted to take a stand and send a message. After spending a few years and a small fortune litigating, the company finally settled, giving my client property worth many times more than the few thousand they set out to recover.

But hey, sometimes you gotta take a stand and send a message.

Seven Years and One Day Ago

I kept welling up thinking about it, yesterday. It was a beautiful morning, my favorite kind of morning. Sunny, cool, clear and bone dry. Two working parents with a place in the suburbs, we got going early. I was in the office by about 7:30, a quiet peaceful time when I could get things done.

I always had a browser or two open to the news. Plane crash in New York. That might have been the first thing I saw that morning, I don't know, a lot of the details are gone, too. I tried searching for more for more information but the Internet was jammed with traffic, a preview for my commute to come.

Someone pulled a TV from a conference room and unhooked the VCR. A bunch of us watched the grainy picture captured by the perfunctory antenna. By now, both towers had been struck and watching the live feed, I saw the first one go down. I heard somebody say "better start writing that war exclusion denial." I needed to leave, right then.

I called my wife. "Did you hear the news," she asked. Yes, we needed to leave, now. Trains and roads will be jammed, another plane crashed in Pennsylvania, rumors swirled about the Sears Tower. "But I have Court, I can't leave." I told her there wasn't going to be court today. Ten minutes later she called me back. Court was closed. We were on our way.

In the throng of people on LaSalle we ran into a woman who would someday be god parent to our son, not yet conceived. We knew her a little, her boy was in daycare with my baby girl and the two were buddies. She was heading straight to the center so we all rode together.

Seemed like 1/2 an hour to clear the parking garage. I remember thinking "don't they know this is an emergency, why don't they just open the gate?” I wished somebody would just crash it. Once out, I looked warily up at the Sears Tower. We cleared it. Traffic was crazy. People were blowing stop signs, we were blowing stop signs and narrowly missed at least one accident. I later learned this was not too far out of the ordinary for our driver.

Away from the freeway, the suburbs were bizarre. So quiet, so normal. I found our not yet one year old daughter, picked her up and let the tears come down.

The next few days were noticeably quiet. The constant background of O’Hare jet traffic was gone and the absence was striking. When the planes came back, I couldn’t help watching them for signs of trouble. People were nicer to one another and there was no normal. That gradually changed. The first lawsuit was filed within days.

Months later, someone asked if I had time to work on a new case. Big deal, high profile. Okay. We would not be writing war risk denials. We would be defending one of the security companies who did screening on September 11. Okay. First task, fly to the East Coast. On the return flight, I passed through the same screening checkpoint as some of the hijackers, my clients manning the operations.