More From Eric Dixon at http://www.NYBusinessCounsel.com

Twitter Rank #35 For Startup Advice May 2014 (#44 June 2014, #50 July 2014 -- now TRENDING UP at #41 for August 2014). Go to my professional site for solutions to your legal, business and strategic problems. Bitcoin Protocol Development -- Among the World's Legal Leaders in New Bitcoin Technology -- Top Strategic Judgment -- When You Need A Fixer -- Explore Information Protection and Cryptographic Security -- MUST-WIN: JUST DON'T LOSE -- SURVIVE!: Under Investigation? Being Sued? Handling Extreme Stress -- Corporate Issues -- Startup Issues -- Investor Issues -- Contracts To Meet Your Needs -- Opposition Research -- Intellectual Property, Media and Reputation Issues -- Independent, top-notch legal, strategic and personal advice -- Extensive ghostwriting, speechwriting, book writing, issue research, press and crisis management services. Listed among the American Bar Association's Law Bloggers (Blawgers). Contact EDixon@NYBusinessCounsel.com 917-696-2442.

Wednesday, July 22, 2015

Lawsuit puts focus on ties between Christie, non-profit - NJ State News - NorthJersey.com

Recent news about a good and courageous client of mine challenging a powerful state executive on its open records and public disclosure practices.

http://www.northjersey.com/mobile/news/nj-state-news/lawsuit-puts-focus-on-ties-between-christie-non-profit-1.1378337

Wednesday, July 8, 2015

Moving The Docs?: Bridgegate Report Vanishes

Are Chris Christie's lawyers running Bridgegate interference on opposition researchers and the news media, now that:
       (a) he's running for President, and
       (b) one of his appointees (David Wildstein) has pleaded guilty to a connected felony and two others (Bridget Kelly, Bill Baroni) were indicted in May of this year?

The special website established by Gibson, Dunn & Crutcher in March 2014 to contain all of its Bridgegate-related investigative reports, exhibits, appendices and updates has apparently been taken down.
Don't fear. Here's a different link to the report. (WSJ) But the updates and appendices are not there. There's a lot of stuff not there, when you really sift through everything.  The errors and omissions in the report were roundly criticized by a few legal analysts including myself
And more... Here are the firm's memoranda summarizing all the interviews of numerous Christie Administration personnel. These are not the actual notes, however. 
Gibson, Dunn, you may recall, is the major international law firm which officially represents The Office of the Governor of the State of New Jersey. The Governor, Chris Christie, is now running for President.  Gibson, Dunn has billed the State of New Jersey -- i.e., the taxpayers -- at least $6.5 million and some reports peg the accumulated amount now in excess of $8 million. This amount was largely to produce its main Bridgegate report, issued in March 2014. 







Monday, July 6, 2015

Investigating The Port Authority

Behind the scenes of the various investigations into the Port Authority of New York and New Jersey, certain appointees to the PANYNJ by Governors Cuomo of New York and Christie of New Jersey, and perhaps even cabinet officials of the Governors and the Governors themselves, is the possibility that various investigations by various agencies may be looking at a curious $2.875 million grant by the PANYNJ to a New Jersey city which has no apparent connection to the PANYNJ, its facilities or to the port (it has no access to any harbor or river).

The current investigations are reportedly looking into possible fraud -- possible criminal fraud -- in connection with sales of more than $1 billion in bonds by the PANYNJ. More than one year ago, I speculated on the extensive criminal penalties that could be in store for participants in the fraud. 

Some of my work back in 2012 for a client got the attention of the local media back then, and has been remembered by some of those reporters. That work is the genesis behind this Sunday report.

If you scroll down to the comments section you will see a reference to a different press report which has video of a press conference I did in early December 2012. 

This is the product of my investigative analyses and illustrates what I bring to the table.


Thursday, July 2, 2015

After Obergefell: Can You Be Forced To Marry?

This recent Supreme Court case may illustrate the prime characteristic of bad law: unintended consequences that can really go haywire.

The headline value of the Obergefell v. Hodges decision issued June 26th is that same sex couples may get married in any state and be recognized as a legal married unit.

But what exactly is a right to marriage?  And what is a "right"?

The classic meaning of a right is something which is inherent in one's existence and - and this is crucial - imposes no burden or duty on another.  

That means in simplest terms that anything which is a right is something which does not require a cost, obligation or action imposed on or by anyone else.

But the Supreme Court's declared right to marry is precisely that. This is so because a marriage involves more than one person. (Warning: Polygamy is coming.)  That means that marriage requires an act by another to trigger and fulfill the "right" of the first person. 

That is not a right. That is a contingent achievement, insofar as a person has successfully found another person who agrees to marry.

A marriage requires a unit. There may be a right to marry by a unit, of more than one person, but then the right is held and exercisable only by the couple. The individual cannot exercise the right without first achieving the membership in or admission to a couple. So how is there an individual right to marry when the ability to marry requires becoming a couple and finding a willing partner?

Nor can marriage be an entitlement. Not unless we wish to declare that some of us are obligated to get married.

That is because an entitlement by one person involves, and requires, an obligation to act by another. It involves a duty and a compulsion to act. 

This is how the right to marry can result in legal shotgun marriages where people are forced to couple up. This is not merely a return to the custom of arranged marriages in many societies; it is in effect a return to slavery where the owner could create and destroy familial relations through his entirely illegitimate property right.

The right to marry goes hand in hand with an imagined right to be fulfilled. We all have the right to try to achieve marriage, but we do not have the right, nor the guarantee, to achieve it.  This is what is meant by "the right of...the pursuit of happiness." You have the right to the pursuit, the chase, if you will. That requires no one else's cooperation, no compulsion, no coercion, just your own effort. 

We all want opportunities. But no one is simply entitled to have the outcome they want. Not even if we dress it up and play games with the meanings of words and call it a right. 






Sunday, June 28, 2015

Obergefell And The Supreme Court's Warning To Finance, Business Communities

The Supreme Court rulings in two cases involving statutory interpretation of the Affordable Care Act and constitutional interpretation of the Equal Protection Clause's treatment of states' recognition of same sex marriage show contradictory reasoning. By so doing, the high court has raised troubling questions about a new era of legal uncertainty about how any plain language document, from laws to regulations to contracts, can and will be interpreted and enforced.

In an era where the legal establishment is increasingly openly hostile to and contemptuous of asset holders and business owners in general, what does this mean for the average homeowner, the average small business owner and even the regular investor?

Last week's momentous Supreme Court rulings hit many people in the finance and business communities hard in the gut, for reasons having nothing to do with partisan politics or one’s personal beliefs regarding same-sex marriage. The rulings sparked feelings, probably very hard to express, define or articulate, all owing to a sense that something is about to go very, very wrong.

That's because the decisions – King v. Burwell,[1] the ruling reaffirming the Affordable Care Act (the "ACA") released Thursday, and Obergefell v. Hodges,[2] the ruling extending same-sex marriage recognition nationally released Friday -- reaffirm the growing unpredictability of legal interpretations from the nation's highest court. That means that when the law becomes uncertain, when its enforcement becomes dependent on hope instead of the law, the power of the law diminishes and the power of its enforcers grows in inverse and perverse proportion.

The message is implied, and it is chilling.  It is, must be, that laws, and certainly the contracts that govern relations among honest people in commerce, are far more open to reinterpretation that they once would have been.

Whereas not too long ago contracts and statutes would have been interpreted, and enforced, according to the "four corners" of the document (that is, what's contained on the paper and nothing more), rulings from the Supreme Court invite a new level of sophistry from people determined to argue that words are to be accorded meanings that are something different, if not something completely opposite, from those intended by their writers.

Consider Chief Justice John Roberts’ majority opinion in King, where he criticizes the quality of the statutory drafting of the ACA.  He wrote, in relevant part:

“The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. Id., at 159–167. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation. Cf. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 545 (1947) (describing a cartoon “in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.’”).
King v. Burwell, pp. 14-15 (emphasis added in bold).

As our legal jurisprudence respects and relies on the precedential value of prior court opinions, you can just imagine the fear of the potential for abuse of the precedent this ruling, and this specific passage, carries for the future. Indeed, for Roberts further wrote:

“In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.
King v. Burwell, p. 20 (emphasis added in bold).

But then consider that the same Justice Roberts, evaluating Obergefell at the same time as King, reached the opposite conclusion. Consider from his dissent:

“Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.”
Obergefell v. Hodges, p. 2 (Roberts, C.J., dissenting)

Roberts continued:

“The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are? “It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.” Lochner v. New York,198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned with the wisdom or policy of legislation.” Id., at 69 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role.”
Obergefell v. Hodges, p. 3 (Roberts, C.J., dissenting)

Justice Roberts flips the coin, taking one side in King and another in Obergefell.  But such is the nature of decisions made arbitrarily. In so doing, he conveys the alarming implication that no lesser an authority than the Supreme Court shall decide questions of our law by first choosing the outcome, and then working backwards to reach the appropriate patina of legal legitimacy. This is the type of reason which provides ammunition to future would-be abusers of the government’s often-fearsome arsenal of powers.  

In reality, last week's decisions have implications going far beyond the “headline” subject matter of their decisions. They have far more impact on future legal jurisprudence. That is because our legal system is based on and often accords high respect to precedent, meaning prior court rulings.

So when the court rules that a law will be rewritten so it may "work," the finance community should be alarmed. Not because it agrees or doesn't agree with the Affordable Care Act. Rather, because now the confidence that one is obeying the law and can enforce legal rights has been greatly upset.

Think this is an overreaction? Consider that the legal profession is dominated -- run by -- activists who increasingly believe in "economic justice." Such phrases should alarm readers. Simple concepts require no adjectives to modify them, not unless the purpose is to convey the opposite meaning, and so it is with "economic justice." The reality is a legal establishment, now firmly ensconced in the judiciary and among regulators and prosecutors, which is not merely overtly hostile to business in general and "the rich" (read: anyone with assets) in particular, but believes it is now emboldened -- no, empowered -- to go after these sectors with an impunity borne by the delusion that their end justifies any means, and the confidence that their allies will allow them to act unimpeded and their targets have neither the will nor the power to resist. 

In such an environment where hostile actors now have the Supreme Court's green light to erase the plain language of laws, certainly those in contracts will be next.

How far are we from a legal system where the likelihood of getting a contract enforced depends, for all intents and purposes, on one's industry, political contributions or "most favored nation" status. In other words, when does your legal status depend on who you are?

The new sense of the nation being a nation of men, instead of a nation of laws, explains why the public proclamations commending Friday's ruling on same-sex marriage may be more obligatory than sincere, as it is accompanied by a new uncertainty for business. 

Indeed, it is as if the capitalist class consciousness has been raised, to recognize The Dawn Of The End Of Law. And the public celebrations on social media may well be masking a silent dread that dares not be spoken, not in these politically correct times where departure from a shifting, almost undefinable political correctness may mean being targeted with boycotts, or the loss of tenure, or one's contract, or one's job.

The questions now are how the capitalist class will respond. It -- those of us with assets, even if modest amounts -- is mobile, certainly more than the average citizen who is largely tethered to his job, his home, his community, more by immobility from fear of the loss of job, insurance and familiarity than anything else. 

Will this class simply retreat from public life, determined more than ever to make profits and showing its defiance through indifference?

Will the capitalist class publicly wink at the new trends, the new legal paradigm, while privately resolving to avoid any and all encounters with the legal system, the political system and those who would make economic threats at the slightest hint of unorthodoxy?

Legal certainty and the rule of law have always set America's economy apart from the rest of the world's. The new era of unpredictability, save for the predictable animus towards business and asset-holders, simply won't help encourage capital to come here, stay here or be invested here. 

Last week's Supreme Court ruling may make this nation more equal -- that is, more equal with the rest of the world. For Americans, that means several steps backwards. This hidden message is being felt, even if many still find it hard to believe, accept or articulate. 


[1] King v. Burwell, 576 U.S. _____ (2015), available at http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf.
[2] Obergefell v. Hodges, 576 U.S. ______ (2015), available at http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf.



Wednesday, June 24, 2015

BitLicense Now Official: New York's Bitcoin Regulation -- An Update

New York's Bitlicense is now officially effective today -- June 24, 2015 -- with the official publication of the regulation (see below) in the New York State Register's current edition just released. 

The final version has already been released, and with one change (companies won't have to run to state regulators to get approval for minor changes in their apps or code), it's the same as the second draft version released in late 2014.

I anticipate that companies seeking to comply will be engaged in quite a complex process, and quickly.


Eric Dixon, Esq. is available for consultation or comment to the news media at 917-696-2442.


Sunday, June 14, 2015

Voter Fraud Alert: New Legislation Planned In New Jersey

Democratic state legislators in New Jersey plan to introduce on Monday a new bill called the "Democracy Act" in an effort to combat falling voter turnout. But one provision for automatic voter registration upon receiving a driver's license is an absolute green light for non-citizens getting licenses to vote. 

UPDATED: If you think that fears of immigrants voting, or that same-day voter registration might lead to fraud, are the province of tin-foil-hat-wearing nuts in some Republican-neocon-tea party fantasy, just read these comments and then consider the source: New Jersey State Senator Ronald Rice, a Democrat who represents Newark.
"What I do know from my experience with voter fraud, is that when you have same-day registration, in my city and county, they bus people in," Rice said. "They bus in the dead and they bus in immigrants."
Senator Rice has a valid point. But his comments and concerns illustrate another trend. Election law changes and changes to "make it easier to vote" don't necessarily tip the balance of elections between the parties. They can tip the balance of elections within parties; that means, primary elections. And in most of the nation, where incumbents have "safe" seats in the legislatures or in Congress, the real elections are primary elections.

Moreover, voter registration affects local elections the most. That's because "packing" the rolls affects small races the most. The effect of invalid registrations gets diluted -- theoretically -- over larger areas and larger populations. In addition, these invalid voters will get to register in political parties, giving them an additional chance to affect primary elections.

Those primary elections, incidentally, include the primaries for party county committee and state committee races. Those party office elections are critical. In some states, it's those party committees which set the rules for how presidential delegates are awarded in those states' presidential primaries (winner-take-all versus proportional-awarding-based-on-popular vote).

[Earlier coverage: Here's an earlier report from the Newark Star-Ledger, following up its original story on Sunday, and some Democratic state legislative committee press release. The legislation will be posted when available.]

Returning to the issue of automatic voter registration for new drivers, note that such new drivers would be violating the oath on the voter registration form that they are citizens, but (1) no one is seriously enforcing that, and (2) having a readily-identifiable non-citizen population which can just as readily be identified and prosecuted for, say, false statements against the government (see title 18, United States Code, section 1001) means some conniving government agents can exercise quite a bit of undue power over some easily-threatened people.

After all, the power to prosecute and deprive one of liberty is perhaps the second greatest and most fearsome government power there is. (The first one? The power to send you off to war and likely to die.)

How would that power be misused? Like to "convince" people to vote a certain way, or not vote; you get the point.

In conclusion, I suspect these bills will not achieve their stated objective. (They may achieve their real objective, one no one dares speak of, which is to goose turnout towards certain candidates.) These type of bills often produce little in the way of enhanced turnout. This is because they increase the numbers of voters who are registered. As a result, what do you get?

Lower voter turnout, that's what. That's because turnout -- as a percentage of all registered voters -- will fall when you increase the number of voters who are registered (the denominator), because it's very hard to spark the interest of additional voters beyond those currently concerned citizens (the numerator). Voters who care, already vote. 

And voters who don't care, will sometimes take some money from unscrupulous campaign operatives to vote this way, vote that way, or otherwise engage in some nefarious act. So maybe you'll have a few more "straw voters," if all you care about is goosing turnout numbers.

Do you think that is a good thing for democracy?

Eric Dixon is a New York corporate lawyer who runs his own practice. He has successfully represented political campaigns for presidential candidates, and for state and local candidates in New York and New Jersey.

Friday, June 12, 2015

The Meaning of Official Documents, When Race And Gender Change On The Fly

Today we learned that the head of a Spokane, Washington NAACP chapter had a birth certificate identifying her as white, but she nonetheless identified as African-American. 

The legal issue is not what race or gender these people are. It is the meaning and purpose of the government documents issued. 

These documents are identification documents. They are issued so that the authorities -- and increasingly, any merchant performing a transaction -- can identify or verify the identity of the person. Yet other documents like birth certificates are meant to convey and report information about a person at birth -- and that means if someone was born male, the certificate should always read male even if the person undergoes gender reassignment surgery years later. Because the person was a male at birth. And because government documents are supposed to report objective facts -- even if unwanted -- instead of someone's fantasy or desire.

This is why driver's licenses report descriptive information on a person's name, date of birth, race, approximate weight, hair and eye color. It is an attempt to make it easier to identify and verify someone presenting the document, on the basis of relatively objective (although obscurable) data.

If present-day identification is the question, then matters as to current gender and race are raised. This is where Caitlyn Jenner (formerly the 1976 Summer Olympics Men's Decathlon Gold Medalist known as Bruce) presents the question of fact as to what gender she currently is. This is entirely separate from the question of what gender she would previously have wanted to be, or what gender "she" in fact was when "he" actually competed in the 1976 Montreal Summer Olympic Games.

Some people circulated a petition -- quickly rejected -- to remove Jenner's Gold Medal on the grounds of gender fraud. Interestingly, current Olympians undergo rigorous drug and genetic testing to weed out athletes who may be "more male" from the female competitors. (See this 2012 Time piece explaining the practice.)

In short, government documents are intended and must be kept intended for data reporting purposes. Self-esteem or image issues are not grounds for the alteration of objective data. 

Chaos: Ten Things To Remember When The Rule of Law Ends

No legal blog is complete without addressing what you must do, when the Rule of Law ends. Call it The End of Law. No matter the jurisdiction, no matter the cause, the question and challenge are the same: What do you do?

Assuming your loved ones are safe and secure, immediate physical survival has been achieved, but not guaranteed for long. The breakdown of civic order and The Rule of Law means that every assumption you have about civilization must go out the window. The benefits of post-modern civilization, the presence and concern of law enforcement, fire departments and paramedics, quickly vanish as those first responders tend to securing the safety of themselves and their own families. In an Anything Goes world, everything changes. So here's a quick checklist of items and issues to remember.

First, immediate physical safety must be assured in order to have both immediate and prolonged survival. I'm talking about staying alive. Whether it's shelter from life-threatening natural disaster or man-made chaos, you need a barrier between you and the danger. 

Second, depending on the situation, you'll need transport to a safer (you hope) place if your immediate location is neither secure nor tenable long-term. This requires first answering whether you can get out of your present location. Do you have a vehicle, and if so, how much fuel do you have right now? Then you have to think of your destination, and assess your chances of actually getting there at all. Fleeing a somewhat secure location in the hope of an assuredly-safe replacement carries the downside of getting exposed to mortal dangers. Now is a good time to ask: Do you have weapons? Do you know how to use them? You will have to assess your resources, and the odds of success against the risk of perishing.

In the case of a total breakdown of civilization, the benefits and conveniences of location in civilization are cruelly reversed. Cities become high-risk zones from which escape may become impossible and in which access to anything else needed for long-term survival may be very difficult. While needed staples may be present, the problem is large hordes of competitors. You'll have two problems: Getting what you need, and fighting off attackers who may easily seek to kill you for a tin of sardines. Remember this if you're thinking of staying in an urban area, or leaving a safe countryside for "the city" in search of something you think you need.

Notice what I have yet to mention: food, water, medicine. Those are somewhat longer-term concerns. Your ability to do without them will vary based on environmental and personal health conditions, and indeed they will become primary concerns soon, but only after immediate safety and survival have been achieved. 

Water becomes the first non-immediate concern once your immediate safety is assured. Is the water safe? You may not have the option to boil it. Drinking non-potable water carries numerous risks, but so does the risk of dying from thirst. If you have bleach, you can use that to disinfect water. The Environmental Protection Agency recommends six drops of bleach per gallon of water. 

Once you can turn to food, when you can pursue it, and to the extent you even have a choice, prioritize food with respect to four considerations: protein, perishability, vitamins and portability. Dairy and refrigerated products will spoil very quickly if they haven't already gone bad. Fruits and vegetables can also rapidly spoil but I would take them for their nutrients. Given their bulk relative to their nutrition, I would consume them quickly rather than store them. Other items, like nuts, pack more nutrition (and protein) for their size, and are a much better bet to store and carry. 

Medicine may be the toughest item to secure. Pharmacies and doctors will not be available and it is likely that pharmacies and drugstores will be a favorite target of looters. There is sure to be a black market for these and any commodity. Just remember: In The Age Of The End of Law, there won't be any consumer watchdog to turn to for help. It will be the ultimate in caveat emptor -- buyer beware. 

Once you can worry about amassing these basic resources, the questions become where to get them, and how to get them. Can you acquire them within your safe location or must you find them outside? In The Age Of The End of Law, institutions like banks and conveniences like ATM and even electricity may be functionally obsolete. Money, credit cards and even Bitcoin may be totally worthless under such dystopian conditions. The electronic devices of the Information Era will become the newest antiques, useless except as paperweights once the power shuts off and stays off. You may be reduced quickly to bartering physical commodities to get what you need, assuming it's even offered. You may be scavenging for the basics without any assurance of their quality or safety. 

Beyond that, start thinking about getting candles, matches, batteries and clothes. Candles provide light and some minimal warmth. In a winter scenario you may be in darkness up to 15-16 hours a day even in the middle latitudes. Batteries will power flashlights and may be the last resort for power. Look for a transistor radio. Anything digital may not work. The older the product the more likely it will work (what a paradox). As for clothes, your emphasis should be on two things: mobility, and protection from the elements. You may be reduced to walking indefinitely and over rough terrain or dangerous ruins. The natural elements may be as varied as anything found on our planet.

Start looking for chemicals and substances with multiple uses. That jar of bleach may have been very inexpensive in the market a few weeks ago; now it may be an indispensable disinfectant. Iodine is similarly very useful. And salt is an excellent food preservative and solvent. 

Finally, surviving in The End of Law requires some extreme changes to your way of thinking. In fact, thinking may be a fatal flaw. You may not have time to think, only to act and react. Instinct, not necessarily intelligence, may be critical.

Understand your primary -- maybe your only -- objective is simple. Survival is simple: Just don't die. So your mindset is just as simple. Act quickly, decisively and methodically. Emotions will only impede and delay you. Either could be disastrous. Catastrophes require an enhanced emotional intelligence that not everyone has. And you know what? Many people die in emergencies, disasters, war zones and the like, because of horrible judgment or an incapacity to respond properly to mortal dangers. 

Meet the challenge, or meet your Maker.  Let go of any assumptions about the past, how things should be and anything beyond the immediate horizon.  Survival is a here and now proposition.  And the more equipped you are to make the right judgments and act on them, the better your chances.

Eric Dixon is a veteran New York lawyer who describes himself as being in the business of judgment. 


Tuesday, June 9, 2015

Is A So-Called Nonprofit Group's Documents Public Records?

A client of mine is bringing a new and potentially groundbreaking lawsuit in state court in New Jersey, seeking production of certain documents from a nonprofit organization under the state's Open Public Records Act. 

More on that lawsuit, and an ongoing effort to reform the open-government laws in New Jersey, in this article from the Record of Hackensack, NJ. 

Saturday, June 6, 2015

Low Voter Turnout As A Good Thing

The accepted and common wisdom is that voter apathy, aka low voter turnout in elections, is really bad and bad for democracy and undermines our elections. Or whatever today's claim is.

These concerns are the stated reasons behind some "voting rights" litigation supposedly being funded by George Soros reported in today's New York Times. 

But here's where almost all of the commentary and "solutions" go wrong. And the party of the people talking doesn't matter; the Republicans are as equally clueless as the Democrats.

Right now, the most concerned citizens do vote. They vote regularly and consistently, in general elections but most particularly in primary elections. They are what is called in the business the "prime" voters or the "super primes." They're the ones campaigns concentrate fundraising and literature on. 

Who doesn't vote? The unconcerned, the uninformed (that being a function of being unconcerned), the indifferent and, often, the less intelligent.

There are few to no barriers to voting, beyond those of physical maladies where voters may be too sick to get out of their houses or medical facilities to vote. Here, increasing absentee or early voting is helping bring the ballots to the voters.

But all the effort on getting more voter turnout might either be a tired mantra by people who don't know what else to say -- having identified a problem but not a solution -- or an objective that is fraught with unintended consequences.

Do we as a society really want the uninformed, callously indifferent or malicious to be exercising their constitutional voting right as much, so they -- and not the informed, super prime voters of either party -- determine the outcome of elections? 

And before you think this is partisan, consider this: The same concerns hold true for so-called "closed" party primaries in states where you must register in advance of a party primary to "enroll" in that party. With primaries, do you want the weakest, least concerned voters outweighing the votes of the less numerous but much "more committed" party members?

These are among the questions to consider, on a policy basis, before accepting as an article of faith that declining voter turnout in elections is a "problem" and that increasing voter turnout is a desirable objective. 




Wednesday, June 3, 2015

Bitlicense Goes Live: Final Form Released

The Bitcoin community has experienced its first D-Day.

New York regulators just released the final version of "BitLicense" earlier today. The Bitcoin and digital currency community will be divided into two camps on this.

First, if you view Bitcoin as a technology and are limited to developing the underlying technology (what's called blockchain technology), then you do not need to apply for and receive regulatory clearance with Bitlicense. As I remarked months ago, the revised regulation adopted this change in perhaps the most material and meaningful progress made during the entire review and comment process.

Second, if you are in the business of exchanging digital currencies for one another, or with conventional government issued currency, you are probably covered and need approval.

Third, if you are in the business of holding any customer assets or funds in the form of a digital currency, you are probably covered and also need approval.

Since Bitlicense has an expansive long-arm definition of the term "New York person" anyone in a covered activity will be affected even if they do not operate in New York.

As a result, businesses in these sectors need to make immediate plans to attempt to apply and comply, or clearly withdraw from any covered activity touching New York State.

While the foregoing is not intended to be legal advice, I do provide legal and compliance advice (for a fee to paying clients) and time is already ticking.

I do believe that young companies desiring to have access to and compete for business in the lucrative New York market may find it worthwhile to apply for the Bitlicense.

Monday, June 1, 2015

The One Reason Why You Must Stop Working For Anyone Else

In this third installment of an ongoing series, I explore what people face if they don't consider going off and starting their own business.

As the stick is a far more effective (if less desired) teacher than the carrot, I'll cut to the chase. You need to realize how limited, and likely how miserable, your entire life will be if you don't consider this option.

Of course, most people don't cross this bridge, and many people have no business trying. The economy needs employees, followers, loyal consumers. I'm just saying that the opinion leaders, the movers and shakers, turned their backs on the path followed by most everyone else. It depends on what you want.

If you want to control your life, to be able to decide what to do, when to do it and with whom to do it, you have to be some sort of entrepreneur. That does not mean being fabulously wealthy, unless you define wealth in a non-monetary sense, that being measured simply as the freedom from control by someone else. 

But here is the sticking point. To become and remain an employee, you must always be willing to be controlled. And as control requires dependence, because dependence enhances control, you will quickly end up in a quicksand where your life is Groundhog Day.

And that, my friends, is most often the best case scenario! 

Things can become much worse. Your agreeability to being controlled, exploited and mistreated is no guarantee of anything! Being controlled is necessary, but it is not sufficient. You will remain vulnerable to every risk an employee takes, of being harassed, demoted or fired, of having your career growth stunted or hit a dead-end. But your upside is, well, there is no upside.

It's all at the discretion of your employer. And in an age where there are more and more highly intelligent, highly educated, underpaid and desperate workers willing to run through walls (and cut corners, sadly), that control is likely to morph into attempts to manipulate, deceive and coerce you into unethical and even illegal behavior. 

So if you dread a future of being the subservient subject of another, subject to the whims and absolute depravity of another -- your boss, your husband even -- what do you do? 

And if you otherwise don't fear the above, what about dreading looking back at your mediocre, unremarkable life, when you had all sorts of potential and wasted it?

And what do you do now?

Your options never actually decline with age. What declines is the ability to get opportunities handed to you by others. It just becomes harder to get a "job" which is the illusion of the easy way to get experience.


Becoming a small business owner is not easy. But making it work will allow you the true freedom of being able to follow your dreams, your conscience and even the law. It is the only way to have real independence and true freedom from the control by another.

Hope For Better Policy In The Age Of The End of Law

Many believe that bad policy results from bad information or a lack of information.  But what about the human dimension? What if the people making the decisions -- their values and priorities -- are the problem?

That intellectual candor and courage leads one to speculate that bad policy results not from a "lack of understanding," or poor or incomplete information, but rather from some very deliberate choices in policy, values and priorities. 

In short, many economic problems would not lie at the feet of misunderstandings. Rather, they might well be the result -- and intended as such -- of very deliberate, conscious choices.

Today, far too often, we see how cronyism affects the enforcement of laws, the enactment of regulations and the allocation of opportunities by those in positions to choose. 

When "who you know" begins to trump the rule of law, when connections trump legality, and when one's ability to survive (never mind, succeed) requires the willingness and ability to assert and defend one's rights, constitutional or contractual, then one can surmise we are in The Age of The End of Law.


Thursday, May 21, 2015

Startups: When It's Time To Start Yours

Part two of an ongoing series.

This second part of a multi-part series explores when an employee realizes he (or sometimes she) needs to explore starting a business of his own. 

The highest and most difficult hurdle is to understand that life as an employee is not the road to security that popular culture leads you -- manipulates you -- into believing.  It is the road to dependency where your entire life is subject to control by the "owners of the means of production" who are dispassionate about and indifferent to your concerns. (That's how it should be. The flip side to that indifference is that you maintain your privacy and some semblance of control over your reputation and outside-the-workplace life.)

This core reality requires you to accept the fact that life as an employee, and just surviving as an employee (keeping your job) comes with some unpleasant realities. The most unpleasant and terrifying for most people is the idea that there is no job security whatsoever. 

The idea of a secure job is a fantasy. Our information economy is rapidly commoditizing knowledge and eroding barriers to entry for newcomers. While we have more knowledge, it's never been cheaper to acquire it. Unless you have a unique skill derived from how to USE that information -- what I will colloquially call "judgment" -- your information, your degree, even your years of experience, are easily replaceable. And that's for highly skilled and highly intelligent workers. It's even worse for the white collar support staff. The supply of relatively cheap labor and a flat demand explain why today's cities are full of armies of white collar employees with falling real wages and vanishing "job security." 

Still think being an employee is a good life?

The reality is that survival as an employee requires you to have enough value to be irreplaceable. You must win the value game. And there are precious few ways to do that. 

The easiest way is to have a book of business. Revenue generators sell themselves, and there are very few of them. Without your own business, you are at the mercy of those who have it. 

In short, without business, you're dead. 

The vast majority of people never generate any business. Rest assured, if you have been in any profession for more than a few years and cannot generate any business, you are either hopelessly mediocre or in the wrong market. Many people have no business, and that's because they have no business being in that industry to begin with. What is their future, your future? 

Here's what it is. It is making a living off the revenue generated by someone else. That means that the generator is sharing his revenue with you. Are you worth it today? And what about tomorrow?

If you're afraid about asking those questions, maybe because you have no business or just a little business and are scared about how hard it is (which is okay, that's actually a good sign you're realistic and pragmatic), then you have to think about this choice: 

You can go out on your own, and worry about getting business, or

You can stay as an employee, and worry about your boss -- that miserable prick of a boss -- thinking whether you are worth whatever it is he's paying you?

Think carefully, now, and look around at your co-workers. How many of them would you trust to generate business for you? How many would you trust to do a good job for you if it were your business?

The answer should be: very, very few.

But this is how YOU are being viewed. By your employer right now. And unless you bring in revenue, you have little to no value above an anonymous replacement.

And if you glance over the cubicle walls, you'll see lots of middle-aged professionals, who despite their credentials, their pedigrees, their family connections, really don't do a hell of a lot. Subtract the big-company name-value from their business card or LinkedIn profile and you have an empty suit most of the time. 

This reminds me of a statistic, or metric, now in vogue in some professional team sports to assess an individual player's performance. It's called "wins above replacement," or "WAR." It means a player's value is measured against the expected performance of anyone on average who is called up from the minors, from the college ranks, or even from juniors (the underage ranks for hockey players before turning pro).  The lower your WAR, the more your roster spot -- hell, your career -- is in jeopardy. 

In today's white collar information economy, if you don't have business, and otherwise don't have an office godfather who is protecting your job, your WAR is basically zero. That's because there is always someone younger, hungrier, more eager to please, more naive, more easily deceived and more willing to work longer and harder and for less. 

No business, no future. No doubt about it. 

So being an employee means always looking over your shoulder. And for....what?

Now, there are some qualified exceptions. There are exceptional employees who are indispensable because they are hard to replace. But these people are also likely to be working at one hell of a discount to their true value. Think about that: you are the irreplaceable employee because you are getting paid less than you're worth! So your job security is really nothing beyond being a function of your being undervalued, exploited, taken advantage of. 

In the legal profession, even the most brilliant lawyers, who don't have their own book of business and must work for someone else, cannot command much more than $100 to $125 an hour for their time. This is how exceptional lawyers who have argued before the United States Supreme Court have been "de-equitized" by their firms, which means they are being cashed out of their ownership stake and allowed to stay on as employees with a title of partner. Banks are even quicker to optimize the desk space. Out you go, and your "book" may already be on someone else's desktop, by the way. 

Some people do have job security of a sort because the cost to the employer of firing them, facing uncertain liabilities, and risking having to get rid of an unknown replacement are pretty high.  But where is the growth? Where is the potential for wealth creation? No, you're just marking time hoping the company's stock goes up so your stock options actually are worth something.

And should you be wrong, and be anywhere over the age of, oh, thirty-five, you might be looking at a decline in real income of two-thirds or more, if you don't have your own business.

Now you should see that you can never avoid having to confront your fears of developing your own business, your own brand.

To be sure, this advice is not for everyone.

It is actually only for very few. The leaders, the influencers, the achievers, or at the very least, the ones who dream and desire more, and who are willing to work and give it a shot.

Rest assured, the losers, fakers and frauds aren't reading this, so you're already ahead of some of your "competition."

Next in this series, we'll look at some pragmatic steps for getting started.


Monday, May 18, 2015

Startups: When To Start Your Own Business

One key to effective advocacy is an openness to new avenues to the truth. Some great legal victories have come from simply having winning facts. 

In that light, it helps to be willing to challenge the existing economic and cultural paradigms that push, compel and coerce people into corporate conformity while deterring, discouraging and even punishing innovation, risk-taking and individuality.

In the first of an ongoing series, we will explore the clues that will help you realize you must go off on your own if you ever want to be in true control of your life, your career and your reputation, realize your potential and have a sense of fulfillment that does not require that you chase the affirmation, approval or permission of others.

People are going to call you selfish, self-centered and greedy. You will learn to call yourself...a success.

The easiest barrier you'll have to overcome is presented in the form of the question: When MUST you go off on your own?

The simplest and shortest answer is that working for someone else is not the road to success, to financial security, to happiness or even to preserving your own reputation. It is the road to surrendering control over your future to a greater force, one more powerful and one entirely unconcerned with your welfare. It is essentially a "road to serfdom" on which you will perpetually be at the mercy of someone else who stands to gain through your pain.

Now, wait a minute, you're thinking, isn't employee life, working for a big and stable company, that's all I've ever heard, that's what my classmates and neighbors are doing, they seem to be doing well.

My counter: Yes, they seem to be doing well. But look deeper.

Popular culture glorifies life as an employee. That's because the lifestyle helps provide and placate an easily controllable work force and source of "consumers." It also reduces ambition, so the successful have less competition. (That, my friends, is just part of making it to the top: Take the path of least resistance.)  But most employees are terribly mediocre. Even worse, most are bored in life, and wake up on Monday in a can't-wait-for-Friday mode, in an even wider circle-of-hell known as can't-wait-for-retirement mode.

Imagine that, spending 80% of your life hoping it goes by quicker!

So the best way to explain why you always must plan to become an entrepreneur, a sole proprietor, a small business owner, is to understand that being an employee provides you with very little upside, but all the downsides that one can have in this economy.

What's the upside? There is job security, provided you define it properly. Yes, odds are you'll have your job tomorrow, and the next week, and so on. The odds are also true that a certain meteorite will miss Earth next year. We think. You get the point. 

But that job security is an illusion. There is no guaranteed future employment. (Not in the United States. Maybe in certain European countries where labor laws make it tough to fire anyone, but the flip side is that companies are scared to hire anyone they can't fire, so the youth unemployment rate is often 25%!) Worse, it is an illusion based entirely on your trust in the benevolence of the employer, and hope that the employer won't break the law, or go out of business, or relocate your job to an emerging Third World market.

As an employee you are feeding only off the plate set out for you by an employer. You're just a puppy in Corporate World. And guess what? There are many puppies. Some are bigger than others. Very few are special. Most will sell their own mothers to a new owner to get an inside track at the next plate. What do you think they'd do to you? These other puppies are your competition, and there are more puppies every day. 

Oh, but I'm doing well, I'm liked, I'm getting promoted, you say. True, and good for you. For now. For you are always at risk of having someone undermine you, kneecap you, rifle through your files, steal your ideas and badmouth you. 

There is a huge cost to living and working in this environment. While working at your primary, "stated" job may be exhausting, having to work at your "real" job of keeping your stated job is no less exhausting, plus it is just as essential. The office is not the frat house, it is not your home away from home. It is where you go to make money, nothing more, nothing less, and nothing past the length of your nose. 

Information and relationships are critical to your survival. You must keep them as yours. 
While you work for someone else, your developed creations are "works made for hire" and are the legal property of someone else. Ditto with your rolodex. Keep your thoughts, ideas and dreams -- and your private life -- at home and in your head. Your "book of business" can be -- and trust me, it is -- seized without even a moment's notice. You are always at risk of being fired. In fact, the more you have produced, the more someone might want to steal it. After all, the quickest way to build that book of business is not to develop it organically, but to take it from a former colleague. Unless you have strong relationships outside your employer, your career and lifestyle are in permanent, imminent danger of catastrophic change from a voracious office competitor.

Even if you manage to survive and keep your job for the time being, in a hostile work environment you are subject to all sorts of harassment. Some is obvious. The worst kinds are the ones you cannot see, hear or feel. This clandestine harassment originates not with an "animus" against a particular "protected class," but rather out of a desire by someone to eliminate their competition. It increases as you become more successful, because your success (personally as well as professionally) breeds envy and makes you an ever-growing target. Watch. Your. Back.

Oh, but there are labor laws, anti-discrimination laws, and human resources. They'll protect me, you think. Oh, sure they will. Human resources? Ever wonder why those departments are called that? It's because you are a resource...like fossil fuel. You are exhaustible, fungible...and non-renewable. And HR is always keeping tabs on you in order to have a better case for firing you "for cause." You didn't think those magnetic pass cards tracking your movements, those passwords on your office computers and Blackberry, all were for your protection, did you?

But being an employee means I have benefits, you think. Yes, you have benefits. But those benefits are only as good as the intent of the insurer or custodian to abide by their contracts. Wait until you hear the words, "coverage denied." Or worse, when your custodian dips into your retirement account, and funds deducted from your paycheck take six months to appear in a supposedly-sacrosanct retirement account. 

Being a puppy employee means you're in a stinking kennel, immersed in filth, and surrounded by co-workers barking, annoying co-workers, many infected with tapeworm or other psychological disorders. And unless you become an owner...That. Is. Your. Future. 

The very worst thing about this reality of being an employee, as long as you are a Human Resource, a Means of Production, is not that I have described your worst-case scenario.

No, the worst thing is that if you remain employed and have present income, I have described your best case scenario.

Now do you get the picture?

In the next installment of this series, I will describe the eternal hell of so-called high-achieving employees and what they must constantly do just to keep their jobs. 






Friday, May 15, 2015

Mob Rule: Rethinking The Problem With Our Elected Officials

A lot of people make a good living asking for money for their nonprofits to use supposedly fighting for a better and more ethical culture in our nation's and state capitals.

Blah blah blah.

Everyone seems to blame our elected officials, our political class, for the dysfunction. People "don't work together," everything is "partisan," and so on.

Blah blah blah.

Everyone is a crook, say some.

Blah blah blah.

But over the years, as the voices decrying these conditions seem to get louder (in some quarters), guess what? Popular participation in politics -- that is, through actually voting -- is on the decline. 

This brings me to the issue of the level of voting. This is a favorite target of the so-called, self-styled good-government groups, which exist -- make no mistake about this -- to provide a good living for their founders.

What if the problem in "politics" is the same as in "popular culture," where success is defined by sheer numbers and the ability to "sell" or "pander" to the greatest number of people sharing the lowest-common-denominator?

Unlike every other economic, academic or athletic endeavor where merit is the preeminent if not the sole criterion for success, and where achievement is recognized, the political world rewards the precise opposite.

In the political world where everyone has one vote and one voice, regardless -- or in some cases, in spite of -- their achievement, actual achievement is punished because achievers, by their nature, are a numerical minority and politics rewards the popularity contest which must cater to the lowest common denominator.

(Quick note: Read The Federalist Papers. Early American elections restricted the right to vote. Just consider whether there has been a correlation between greater enfranchisement and a debasement of the political and campaign culture.)

The "race to the bottom" in the political world is not a problem of the "political culture" or even of "ethics." It may simply be structural, a function of the fact that the electoral system rewards the basest, lowest qualifications for participation, namely, the ability to fog up a mirror, and levels the playing field to reduce those with the most "skin in the game" to numerical irrelevance.

So why would you be surprised when political campaigns and elected officials pander to this lowest-common-denominator (LCD), when the electoral structure -- and their very survival in politics -- require giving greater attention to this LCD?


Saturday, May 9, 2015

New York BitLicense: Why You Should Comply

See my recent discussion on the topic here

Saturday, May 2, 2015

Politicians Are NOT More Corrupt Than The Average Bear

Politics and indictments seem to go hand in hand. Why?

The headline gives it away -- but the answer will surprise you

It's not because politicians are naturally more corrupt. There are two reasons. 

First, elected and appointed officials -- and prominent business leaders and entertainers -- are "name" targets whose prosecution can make legal careers for the often-young-and-green prosecutors worried about ever getting a private-sector job which pays well. A prosecution of a faceless "nobody" does little or nothing for an ambitious prosecutor going on interviews. But a "name" scalp, a takedown of a big shot, can have a slingshot effect on a young lawyer's career and make him that much more appealing to employers and to their clients who will also be impressed. ("Hey, I just hired as my defense lawyer the guy who brought down Bernie Madoff!")

Second, elected and appointed officials are often subject to various freedom of information or "sunshine" laws which allow inquiring citizens access to all sorts of documents. The same type of access from private citizens is much tougher to get because you need a warrant or subpoena. 

Without the "open government" and sunshine/transparency laws, many questionable public-sector practices would go unnoticed.

Monday, April 27, 2015

Boycotts: Effective...And Legal

The economic weapon of the boycott has perhaps never, ever been as used nor as feared as it is today. Yet the boycott may remain a largely undiscovered, and definitely underutilized, cost-effective tool for social justice and economic warfare. Why more people don't engage in boycotts, either on their own or with groups, is puzzling.

Boycotts are effective tools to amass and deploy collective economic purchasing power to make statements and change corporate behavior. Best of all, boycotts are cheap: it costs virtually nothing to do a boycott!

Boycotts are similar in philosophy to another collective action, the use of group affinity -- ethnic, geographic, ideological -- to attract, retain and reward customers and the merchants who serve them. The major difference is that boycotts use coordinated group action, not to reward, but to punish merchants.

The philosophy of "bite the hand that hits you" was best executed, covertly and with devastating consequences, by a major insurance company about 20 years ago. The insurer gave millions in annual business to a particular New York law firm, and was hurt by new state legislation just enacted. But when that firm turned around and hired the very Governor who refused to veto that very same legislation, the insurer decided to take its very large book of business elsewhere. 

The law firm, the once-venerable Mudge Rose, closed shop soon afterwards. Later on, one of the partners of the dissolved firm tried to sue the client. Amazing. (Source: Wall Street Journal archives, http://www.wsj.com/articles/SB86313633544372500). 

Boycotts can also spur counter-measures, and sometimes the counter-reaction can be even more effective than the original boycott. The 2012 controversy over support by the family founders of the Chick-fil-A chicken sandwich chain restaurant for a nonprofit supporting traditional marriage spurred a boycott by same-sex-marriage activists, followed by a counter-boycott in which customers and certain groups apparently ramped up their patronage of the chain. It was reported that the chain's sales grew 12% in the year of the controversy, despite -- or is it because of -- the boycott. (Source: Huffington Post Online, available at http://www.huffingtonpost.com/2013/01/31/chick-fil-a-sales-2012_n_2590612.html)

Both examples show the potency of domestic, individual, granular citizen action as well as the consequences for businesses which offend or attack their clients and customers. So in a society where the "e-mob" can threaten more and more reputational (if not purely economic) terror proportionately with the greater and greater size of its target, why don't we see even more boycotts, as well as affinity counter-responses?

One possible explanation is that the term 'boycott' has negative connotations because its use by industry participants to act in concert, to collude or conspire to punish or exclude others in an industry is considered anti-competitive and illegal. Such practices are considered actions "in restraint of trade" and violate federal antitrust law (Sherman Act). They may even violate state antitrust laws and both federal and state civil rights laws. 

But did you know that boycotts by individuals are actually quite legal?  In fact, the federal government approves and encourages the boycott as an activist weapon of choice.

Skeptical? Just read the transcript of remarks at the May 6, 2014 State Department Daily Press Briefing by spokeswoman Jen Psaki, which includes the following passage:
QUESTION: The second question was whether State officials stay at hotels owned by the sultan of Brunei or other Brunei entities when they travel, and what your, I guess, broader take would be on the boycotts that have been happening of such hotels in Los Angeles.

MS. PSAKI: Well, a boycott is an acceptable way, of course, for private citizens to express themselves. We don’t take a position on this specific effort. It’s our understanding that the boycott specifically targets the Dorchester Collection of hotels, which has issued a statement that it does not tolerate any forms of discrimination of any kind. As such, the State Department has no specific restrictions prohibiting an employee from staying in a Dorchester hotel.
(Emphasis added.)(Full transcript available at http://www.state.gov/r/pa/prs/dpb/2014/05/225687.htm#BRUNEI)

The Federal Trade Commission also clearly states that individual businesses can engage in boycotts as well. The following passage comes right from the FTC's own website:

Any company may, on its own, refuse to do business with another firm, but an agreement among competitors not to do business with targeted individuals or businesses may be an illegal boycott, especially if the group of competitors working together has market power.


The FTC further clarified:

A business can always unilaterally choose its business partners.


It should be clear: People have the right to take their business away from -- in short, to punish --  merchants with whom they may disagree, and reward other merchants with whom they have an affinity (e.g., ideological, religious, ethnic). By extension, so do individual businesses acting alone in choosing with whom to transact. Individual choices are not the same as group action among businesses in refusing to transact with other targeted merchants unless certain actions or conditions are met, or at all, which actions are likely to attract the scrutiny of regulators and prosecutors looking for violations of either the Sherman Antitrust Act or any of a variety of civil rights and anti-discrimination laws.  Furthermore, any individual business should be aware as a practical matter that the greater its market power, the greater the likelihood that its behavior may be challenged legally by other market players or regulators. 

Nevertheless, choice in trade by customers is clearly a form of expressive speech, political speech even, and falls under the protections of the First Amendment. These actions should not be confused with the anti-competitive objectives of collusion among businesses to exclude competitors or attempted new entrants to a market. Individual economic choice should be seen as nothing less than Constitutionally-protected free speech.

Thursday, April 9, 2015

Overcriminalization, Not Overinvestigation

There is a good column on "overcriminalization" by the noted syndicated columnist George Will this morning. But Will misses the mark on some very relevant points.

He points out -- so does Harvey Silverglate whose seminal 2008 book "Three Felonies A Day" is cited -- that prosecutors often overcharge as a strategy to win cases (and induce defendants to take plea deals often requiring them to agree to a prosecutor's recommendation for a prison sentence of some sort) through what I will term a war of attrition.

However, Will totally ignores some major points. First, the problem with abusive prosecutorial over-zealotry is that it threatens to ruin its victims. A defendant who successfully argues his or her innocence likely does so at the cost of financial ruin, never mind emotional ruin.

Secondly, it seems that the zeal to prosecute is not the same as, and does not involve, the zeal to actually investigate. It would be good to see this investigative determination when it comes to complex financial and terrorism cases, wouldn't it?

Finally, no analysis of legal and prosecutorial behavior is complete without recognizing the much tighter legal labor market at all levels. The oversupply of lawyers from years and years of too many law schools with little to no distinction and equally undistinguished law graduates entering the legal job market 400 to 500 per year per school, each year, finally had its predictable consequence when the 2008-09 recession hit. Demand by paying clients for legal services has been flat by many accounts since then, leading to some amazing downward pressure on salaries from a gross oversupply of lawyers (although arguably, top legal talent is still hard to find - or harder to motivate) in the face of flat (at best) customer demand.

How does this impact overcriminalization? One result of this is that government lawyers -- and particularly prosecutors at all levels -- have to have become increasingly worried about their ability to get and keep private sector jobs. It is foreseeable that prosecutors would seek to become increasingly marketable, and to win the prosecutor-recruiting beauty contests by firms. In other words, prosecutorial decisions may have become increasingly driven not by justice, but by prosecutors' zeal to compete for private sector (i.e., defense lawyer) job openings.

In such a market, justice, never mind diligence in making charging decisions, is unlikely to get much consideration at all.