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

Top 50 Twitter Rank of Worldwide Startup Advisors For Much of 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 BLOCKCHAIN 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 by American Bar Association's Law Bloggers (Blawgers). Contact EDixon@NYBusinessCounsel.com. European Union audiences: This site uses a third party site administrator which may use cookies but this site is intended for AMERICAN clients and prospective clients only!

Sunday, February 14, 2016

Vacant Real Estate And The Value Of Location

The vacancy rate with residential real estate correlates in the inverse with property values, which are largely dependent on three factors: location, location and location.

Some New Jersey data shows that two of the counties with the lowest numbers of vacant residences are two of its most populous: Bergen and Hudson Counties. Those two counties, with direct access to New York City, stay in demand because of the location. Even if the commute is poor. That's because getting out of Manhattan is an ordeal for everyone, no matter which direction you travel.

The lesson? The next time someone proposes a bad policy like the New Jersey Residential Foreclosure Transformation Act -- whose 2012 incarnation (passed by the New Jersey Legislature but vetoed by Governor Chris Christie) would have allowed the state to buy vacant homes and turn them into homeless shelters and so on -- just remind them that there's no cure for a bad location or a property that "just won't sell." 

Bad properties are the result of speculation. An unwanted property is a verdict on the intrinsic value of the property.

In other areas, nothing stays vacant. That is also a verdict on the demand for the location of those properties.

But that's no reason to pass a law that will allow the government to turn your deadbeat neighbor's property into a drug rehab clinic in the name of "the common good."

And it also shows the danger of the uncontrolled use of eminent domain to seize private property (and typically the ones most vulnerable will be the poor owners in low-value areas), sometimes for the benefit of "the common good" but almost always with the incidental benefit of certain neighboring properties.


Saturday, February 13, 2016

When I Questioned Antonin Scalia One on One

In honor of the man, and the judge, after his passing earlier today...

I met then-newbie Associate Supreme Court Justice Antonin Scalia personally in 1989. I was a college student (Brooklyn College); Scalia's father had been a Brooklyn College professor in prior decades. And Scalia and I were both "Sons of Xavier," fellow graduates of the renowned Jesuit high school that is still on Manhattan's West 16th Street.

I got a few minutes to question Scalia about the Constitution, with the understanding -- and his permission -- that this would be on the record. I was on the college's primary newspaper, the Kingsman. 

(Side note: Three of my colleagues back then have gone on to illustrious journalism careers -- Michael McAuliffe with Huffington Post, Rich Calder with the New York Post, and Glenn Thrush with Politico. We all have taken the long trip.)

My sharpest memory was not of constitutional theory. It was that Scalia was one hell of a chain smoker. The room was full of a haze. It was truly a smoke-filled back room. There was so much smoke, you'd think the College of Cardinals had just elected a new Pope. 

I do remember that Scalia kept talking about strict interpretation of the Constitution. He felt it was important for the judiciary to respect its own boundaries, to interpret the Constitution but only restrain the legislature (or executive) when the Constitution was clearly overstepped. 

And finally, I can add that Scalia was genial, a younger man back then (52). Very few would have taken the time he did that day to talk to a then-newbie college journalist. He had class, and his ideological detractors never understood that. 

Eric Dixon is a New York-based lawyer, strategic consultant and blockchain technology application (FinTech) developer. He can be reached at EDixon@NYBusinessCounsel.com.

Rhetoric, Politics and Successful Advocacy: Targeting Your Audience

The most successful communicators are able to say one thing, and have it deliver multiple meanings.

Just like one billiards shot can sink multiple balls.

Political campaigns get the attention that most courtroom deliveries and negotiations almost never get (until after the fact, perhaps). There are a lot of canned deliveries, repeated statements -- it's all quite boring, frankly, unless you have a strong personal interest for (or against) a certain candidate. Many observers and "people involved in politics" get emotionally twisted up obsessing over how this or that candidate could make this outrageous statement, insult or obscenity.

This is all missing the point.

The point of those utterances is to play to a specific audience.

And almost always, that audience . . . Is. Not. You.

A message targeted to a certain audience is no different than an advertisement, or a closing argument inside a largely-vacant courtroom. It is designed to hit certain emotional notes, in order to produce a desired response: Buy this product, vote for me, etc. 

The candidate may not necessarily support, agree with or believe what he or she is saying, but "political realities" may compel a particular appeal, e.g., "I will go after the banks." (Note: I am speaking specifically about the Democratic Party, whose incumbent officeholders are increasingly changing their rhetoric in order to placate an increasingly rabid activist core and hopefully avoid primary challenges. I have been told this first hand. The political upheaval of our time is very much inside the Democratic Party, not the Republican Party.) This is the same calculation made by the advocate, the lawyer who may have to make an argument he finds personally distasteful, in order to represent a client. The difference is that the politician is viewed as personally benefiting from being elected, so the appeal is considered less honest.

So if you get upset at something you watch, read, or hear, I suggest just taking a few steps back, a deep breath or two, and trying to take this all a little less seriously.




Saturday, February 6, 2016

Open Primaries Are An Attack On Voting Rights

The New Hampshire presidential primaries are days away. New Hampshire has what is called an open primary. That means anyone can vote in the primary regardless of their pre-existing party affiliation, which then changes upon their voting. You could call this "instant affiliation." I suggest you call it by its real name: Instant vote dilution.

In many states, voting in a party primary is restricted to people who have chosen their party in advance, sometimes well in advance. But in New Hampshire, the laws are incredibly permissive.

  • You can register to vote in New Hampshire and vote in the primary the same day.
  • You can "move" to New Hampshire, declare your "domicile," and vote -- all on Primary Day. 
  • You can declare your party affiliation -- on Primary Day.
  • After Primary Day, you can immediately un-affiliate by declaring you want to leave the party, just by filling out a form.
New Hampshire's laws punish bonafide party members and dilute their votes. In effect, they diminish the value of the affiliation. A long-time party member's vote counts no more than the vote of the individual who may "just have moved" from any of the neighboring states, or decided to vote in the party which he opposes, in order (as the theory goes) to have the opposed party choose the weaker general-election candidate.

This very danger was recognized by the United States Supreme Court in its excellent 1970 decision in Rosario v. Rockefeller. That decision explained the practice of "party raiding" and the value of deterring such raiding by making voters choose their political party well in advance of the primary election. (That case, in which the defendant was the legendary New York Governor Nelson Rockefeller, upheld New York State's 11-month deferred enrollment practice.) 

New York, and many other states, have a "closed primary" that restricts primary voting to party members makes party affiliation meaningful. The closed primary protects the First Amendment right of association of voters. The Rosario case recognized and upheld the concept that the idea of a party primary is to have the members of that party choose its nominee. It is the basis for party affiliation and the prime reason to be in a political party (for legal, voter registration purposes). 

Closed primary election laws act like anti-virus software. They allow bonafide and committed members to associate but to keep out hostile attackers. 

The open primary, conversely, attacks the right of association. It allows hostile attackers to dilute and affect the outcome. Open laws like those in New Hampshire, and Missisippi to name another state, invite mischief and effectively denigrate party affiliation. Nothing diminishes the value of party affiliation than to allow outsiders -- non-bonafide members with no allegiance to the "party" -- to participate in and distort the outcome of its primaries. 

The open primary also arguably violates the Fourteenth Amendment's Equal Protection Clause. That's because it subordinates the First Amendment associational right of "long time" party members to the hostile attackers' right to invade. If you're thinking that closed primary or durational-registration requirements (e.g., register in the party by some deadline well in advance of the primary) are unconstitutional on a similar ground that they "keep out" others who "have a right" to participate in whatever primary they choose, the answer is that they merely erect an even deadline, applicable to all voters, in advance of the primary. A conditional requirement like a deadline is thus not a barrier, but the result of a legal presumption of legitimacy of a voter who switches or declares parties sufficiently well in advance of the primary.

In other words, party affiliation (also called "party enrollment") deadlines do not prevent party raiding or electoral mischief. They just place a premium on attackers having the foresight to organize weeks or months in advance of the targeted primary.

What do you think about open primaries? Do you think an open primary defeats the purpose of selecting a political party?

Eric Dixon is a New York lawyer. 

Monday, February 1, 2016

DeBlasio Connection To New Jersey Waterfront Murder Today

A young man arrested and charged today for manslaughter today for a homicide in Edgewater NJ this morning of a 16 year old youth from Spring Valley NY, is the son of New York City mayor Bill deBlasio's wife's chief of staff.

This blog asserts it was the first to publicly report this connection at around 7:40 pm Monday evening. The earliest press report to make the same connection hit the Internet after 8:00 pm.

UPDATE: However, a recent press report indicates the stabbing may have been done in self-defense.

Khari Noerdlinger is the 19 year old son of the former chief of staff, Rachel Noerdlinger. She is the chief of staff of Chirlane McCray, the wife of New York City Mayor Bill deBlasio.

Rachel Noerdlinger was revealed by the New York Post last year to have a live in boyfriend names Hassaun McFarland, a convicted killer. The elder Noerdlinger was criticized for holding her position while living outside New York City and was reportedly granted a residency waiver.

More details may be provided later as more information is obtained. This report has relied on information reported since 2014 by various news sources.

UPDATE 2: From NJ Advance Media Monday night, 9 PM.

Saturday, January 30, 2016

First Amendment Not A Shield Against Criticism For Cuba Trip

Ten New Jersey State Assemblymembers traveled briefly to Cuba this past week and are getting blasted for it. But one of the targets thinks the Bill of Rights provides him with a "safe space" from criticism.

One of the members, Assemblyman Reed Gusciora, denounced his critics by saying, "It's disappointing some people in the Cuban-American community want to stifle our rights of free speech and free association." 

It is disappointing, to put it mildly, to have any elected official impute dark motives to anyone questioning his positions, statements or actions. The claim that one's critics want to "deny me my rights" is as insidious as it is flatly overused. 

There is no right to be insulated or immunized against criticism. That would actually require the type of law expressly prohibited by the Framers of the Constitution when they enacted the First Amendment.

Assemblyman Gusciora needs a brief constitutional law primer. The First Amendment prohibits government interference with the rights of free speech and free association. This is what it says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (Emphasis added)

It says nothing about protecting people from unwanted criticism. In fact, invoking the First Amendment when one is criticized is a backdoor way of asserting a privilege to speak and act with immunity from criticism. That position, incidentally, requires prohibiting the freedom of speech of one's critics.

If one is to serve the public, one should be strong enough to withstand criticism (fairly or unfairly) without resorting to unconstitutional remedies.




Sunday, January 24, 2016

Blizzard Jonas, Disaster Prep And When Businesses Shut Down



As of the time of this writing, the Blizzard Jonas* has deposited more than two feet on much of the urban Interstate 95 corridor from Washington DC to Philadelphia to New York City and points northeast.

(* - the unofficial name given to major winter storms by The Weather Channel, similar to the official name designations used by the National Hurricane Center)

Plenty of elected officials have warned people to get home and stay home in advance of the storm. Not unusual for truly "major" storms. New York City Mayor Bill DeBlasio urged businesses to close so that their employees could get home and not risk being stranded when that city began shutting down escape routes like parts of its transit system, and bridges and tunnels leading out of the city towards New Jersey. (Note: When government does that, it essentially uses its own force majeure to compel a business to shut down. There is such a thing as business interruption insurance, for precisely this type of situation; whether that is worthwhile is a different question.)

How a business reacts to a crisis is critical to its future. Certainly, a business which stays open in these conditions may get a revenue windfall because all its competitors may be closed. The business may also get positive public relations by noy gouging its customers by charging $20 for a liter of water or some other idiocy by "having been there" for its customers in their time of desperation need. But I consider these positive crisis moments for a business because they are opportunities for the business to distinguish itself from its competitors.

These opportunities are rare, they often occur by surprise and they offer free publicity. That is a perfect storm for taking advantage.

This is when a young business can make a name for itself. Consider these situations as challenges and opportunities to market yourself.

Eric Dixon is a New York lawyer, business consultant, advisor to several young privately-held companies, and advisor to and part-owner in several blockchain technology companies. Contact him at EDixon@NYBusinessCounsel.com if you think you need help with your business or potential enterprise. 


Monday, January 18, 2016

Candidate Immunity? When the Justice Department Targets Candidates

Your status as a candidate might delay official action by the Department of Justice against you, according to this 2007 publication from the Department's Public Integrity section.

That's because DOJ has long aimed to "ensure that an investigation is timed in a manner that does not interfere with the adjudication of the election itself." (See page 87). The DOJ guidelines also caution prosecutors to consider "whether an investigative step under consideration has the potential to affect the election itself." (Page 91) Similarly, the guidelines state an exception to this approach "may" apply where "it is possible" to both complete an investigation and file charges "prior to the period immediately before an election." (See pages 92-93) 

As such, one may infer an unofficial 'safe harbor' from prosecution for candidates who are or may be under federal criminal investigation, which might delay -- but not preclude or prevent -- the timing of an indictment, in order to avoid affecting the outcome of an election.

There are campaign or candidate partisans who fervently hope that legal action, e.g., an indictment, will accomplish for them what an election might not. However, these DOJ guidelines suggest (but do not mandate) that official discretion should be exercised to avoid interfering with the outcome of an election.

The Justice Department publication makes for a fascinating read for those of you with the patience to read through hundreds of pages of analyses as to the commonality of broader types of corruption extending beyond crimes touching on the right or process of voting. However, readers are cautioned that the publication, released in 2007, predates the dawn of modern social media which has created new avenues for opportunities for mischief, e.g., new media.


Sunday, January 17, 2016

The File: The Trump New York Values

Upon request, here is the first report on the voluminous history of political contributions by Donald Trump.
CHECK BACK FOR UPDATES AS MORE DATA IS POSTED.

Investigators look for the facts. So, on the issue of "New York values," what are the facts regarding Donald Trump, the subject of the phrase?

Until just a few years ago, Donald Trump gave, and gave lavishly, to leading liberal Democrats in New York City, New York State and across the nation.
  • Helping Obama Get Out The Vote?:  In 2008, Trump was helping Barack Obama where it counted: with money. Leading up to the general election, Donald Trump gave Democratic Party organizations at least $61,000 to help Barack Obama win, including $5,000 to the Democratic Senatorial Campaign Committee, and one $50,000 check to the New York State Democratic Party in July 2008
    when Obama's nomination was assured and there were no major contested races for Democrats in New York that year -- so it's reasonable to assume the money had to go for get out the vote and other support operations for the general election ticket with Obama at the top of the ballot!
  • NEW! You can infer Donald Trump's indirect support for Barack Obama continued after his election to the White House in 2008. This is not a typo -- Trump personally gave $50,000 to former Obama chief of staff Rahm Emanuel's Chicago mayoral campaign in December 2010. 
  • NEW! $5,000 in 2002 to former Illinois Governor Rod Blagojevich, who was sentenced to 14 years by a federal judge after being convicted on 18 federal felony corruption charges arising from actions he took as Governor. Also note in the same photo the two contributions to the Cook County Democratic Party. These are not one-off, isolated contributions. 
  • Another big-city Democrat also got a contribution from Donald Trump. In November 2008, Trump gave $1,000 to longtime Los Angeles Mayor Antonio Villaraigoisa. 
  • Dinkins over Rudy: The trend line of supporting liberal, big-government, destroy-the-middle-class mayors goes back a long time. When Rudolph Giuliani ran for Mayor of New York City in 1993, Donald Trump gave to his opponent, Democrat incumbent David Dinkins, a total of $5,500.
  • After 9/11 and when Rudolph Giuliani was term-limited, Donald Trump gave to the far-left Mark Green (who was the co-founder of the ultra-progressive Air America Radio Network, now defunct), running against Michael Bloomberg,
    $4,500 in October 2001.
  • In the years after 9/11, Donald Trump gave $10,200 to former Sen. Hillary Clinton (D-NY) and at least $11,000 to Rep. Charles Rangel (D-NY)(including this $2,400 contribution in 2007), and $6,000 more to Senator Charles Schumer (D-NY) as recently as 2010
  • Scandal? No Big Deal. Trump has given thousands to two elected New York officials whose scandals drove them from office, thousands to former Governor Eliot Spitzer (aka "Client 9")
  • There were thousands more to former House Representative Anthony Weiner (aka "Carlos Danger" from the sexting scandals, and current husband of former Hillary Clinton aide Huma Abedin).
  • Trump also gave thousands to a campaign committee for now-convicted former New York State Assembly Speaker Sheldon Silver. 
  • Between 2001-09, Trump gave at least $64,000 to current New York State Governor Andrew Cuomo including this big $25,000 donation; 
  • Trump gave congressional Democrats, leading up to the 2006 midterms, at least $28,500 including this big $20,000 donation to the Democratic Congressional Campaign Committee in June 2006;
  • Trump gave $2,400 to Senate Majority Leader Harry Reid (D-NV) as recently as March 2009. 
  • As recently as October 2010, Trump gave ultra-liberal New York State Attorney General candidate Eric Schneiderman $12,500.
    Schneiderman is considered to be an overregulator of business (see how his office has tried to regulate bitcoin), believing that in New York the anti-business sentiment helps you win elections. 
Eric Dixon is a New York based business and investigative lawyer.

Wednesday, January 13, 2016

Crashing Real Estate: Feds To Target Secret Condo Buyers

The value of high-end residential real estate faces an imminent new threat: A curious federal initiative to investigate certain all-cash purchases of condos and other properties by entities which shield the individuals behind them from public disclosure. (Here is a link to the article which will run in Thursday's New York Times.)

Most real estate records do reveal information about property owners. It isn't easy to track down the individuals behind them. Government authorities, though, have access to entity records (e.g., corporations, partnerships, limited liability partnerships and so on), tax records and so on. The information is not easily unraveled, but the idea behind these entities is often anonymity which is important to those in the public eye. A second common motive is asset protection -- which is not illegal, although definitely frustrating to creditors and, sometimes, the government authorities. 

This action, however, threatens to have a serious and unintended consequence, one which I suspect will dwarf the government's reasons (whatever they are) for this initiative.

Not everyone who wants anonymity has a nefarious reason for it. The number of "bad actors" who buy real estate is certainly low compared to the overall universe of all-cash buyers.

The main reason buyers will pay in cash is that, when you have the wealth to buy a high-end property, you generally don't need to finance it, nor do you want to disclose personal information to strangers working in various levels of the banks. Sellers also prefer all-cash buyers because they want the comfort of a buyer who can close whenever they bring the cash. Sellers don't want the uncertainty of a mortgage contingency which can delay a deal for months or scuttle it altogether.

But why would our government be overly concerned with what I'll call "bad actors" (whatever the reason for that label)? 

After all, real estate is perhaps the least portable valuable asset. It is also probably one of the easiest to seize, encumber or control. As such, one would think that the government would want bad actors to put their money into precisely this type of asset class, and precisely in the United States. 

The unintended consequence? This will not increase demand for American real estate. It will reduce the demand pool for real estate. That will hurt current owners. 

So, exactly who wins here? That's my question.

What's yours?

Eric Dixon is a New York lawyer who handles business and investigative matters for a variety of clients, but none in this field. 

Tuesday, January 12, 2016

What The State Of The Union Teaches About Advocacy

Great lawyers and politicians have much in common.

When a politician is also a lawyer -- and current President Obama is one, and a former law professor to boot -- then, watch out! (Among the lawyers running for President in 2016: Former Senator Hillary Clinton, former U.S. Attorney and current New Jersey Governor Chris Christie, and Senator Ted Cruz of Texas.)

That's because such skilled orators are great advocates.

And what makes a great advocate is (1) knowing your target audience, (2) delivering the message you need to, to your target audience, and (3) knowing whom you can ignore.

That third point is shocking and dismaying to many -- but it is a critical point in business. It is from that truth that the success in lawyering, whether in a negotiation, mediation or to a lesser extent, before the (increasinglyy rare) jury at trial, flows. 

You need to know who matters, and who doesn't.

While the words spoken are meant for a certain audience, and sometimes are targeted precisely for a certain group or constituency (the phrase you'll hear is "interest group"), it is just as important to listen to who doesn't get mentioned, whose interests don't get mentioned. The absence of those mentions sends two crucial messages. Understanding those silent messages is key to knowing how certain "buttons get pushed."

One message is to the favored group, allies or a target whom you need to persuade. The message consists of emphasizing their interests, needs or priority status. Appealing to ego is a great move when you need just one or two people to see things your way, but it also works in the broader-public-appeal arena of politics. The best thing is that silence towards others is easily used to imply "most favored nation" status towards your favored audience, and allows you to avoid ever having to explain what you never said.

The second message is targeted at the disfavored. It conveys the recognition of who is in control, whose opinion matters, and who doesn't matter at all. 

Often in legal situations, there are very few people whose opinions really matter. 

There may be eight people around the table, but there is so often just one opinion leader and perhaps one trusted adviser. That's it. Everyone else? They're often just there to bill hours, look good and do enough to justify keeping their job before someone notices they're really superfluous.

In court, it's really just the judge and, in a jury trial, a few people at most in that jury. There are always leaders (whose statements carry great weight) and dominators (who take up much of the space but do not necessarily add much value). Again, most of the rest are sheep. Followers. They don't count.

So...tonight's lesson is: Know. Your. Audience.

Because the people who run things never forget that lesson.

Eric Dixon is a New York lawyer who works with private businesses and organizations on various legal, regulatory and management matters. 



Tuesday, January 5, 2016

With Relief Pitchers, Stats DO Lie

"Statistics are like bikinis," said my late, great college history professor Hans Trefousse. "What they reveal is interesting, but what they conceal, is essential!"

These days, with eggshell-skull ninnies running the asylums we call higher education and, increasingly, corporate America, a comment like Trefousse's might get him to lose tenure or fired. But he is smack on whether we are talking about government statistics or the merits of candidates for the Baseball Hall of Fame.

Particularly with relief pitchers.

The very role of relief pitcher evolved in the 1960s and 1970s. Typically, you needed a pitcher who could work his way out of a jam and keep inherited runners from scoring -- and then finish up the game!

Those were the days of the eight or nine-man pitching staff. Total. Starters and relievers. Today, some entire clubs have an eight man bullpen!

The role of the reliever was different. The relief pitcher was not a "closer." He was a "fireman" who would have a speciality of pitching and excelling in precisely high stress situations and preventing opposing runners on base from scoring.

Think Rollie Fingers, Goose Gossage, Tug McGraw and Sparky Lyle. (Each pitched in several postseasons in their 60s-70s era.)

Those firemen often were called I whenever the starter got into trouble. And that could be the fifth inning or even earlier! It was not uncommon for these firemen to have the game-is-on-the-line moment in the seventh inning. And the firemen would carry the rest of the game.

This is in wide contrast to today's relievers whose roles seem hyperspecialized based on the inning and not the situation. (This is an explicit criticism of today's by-the-book managers who are using the wrong book!) Hence, we have a sixth inning guy, a seventh inning guy, an eighth inning guy and then your closer.

To me, and maybe to you, there's a recipe for using your third best option in your most dangerous crisis.

Is that any way to run your company? Is that any way to manage a crisis? Is that any way to win a negotiation?

Conversely, your best reliever might be facing the easiest three outs in the ninth. That leads to ridiculous save totals from some relative newcomers who can chuck the ball 95 miles an hour but who cannot necessarily put out a fire.

Some of the very best relievers were the ones mentioned above -- only Gossage was a fastball pitcher -- and they did their job with guile and guts. Men like split-finger pitcher Bruce Sutter, the submarine pitcher Dan Quisenberry, sidearmer Kent Tekulve and more recently, the slider/change-up artist John Franco.

This I believe: none of the aforementioned pitchers blow three saves in five games in the World Series. Because those pitchers were the best options on their clubs and were brought in at the most crucial crises.

And not only based upon what inning of the game.

Is that any way to manage your team?

Is that any way to win?

Whether it's your lawyer or your late inning reliever, when you see fire, you need a fireman.

Because you use your talent to fulfill the role you need, the role that the crisis demands.

In baseball, as in business, misunderstanding the real role of your talent is a sure fire way to underutilize your talent and to risk being caught using less than your best.

And don't we all deserve the best?

Wednesday, December 30, 2015

The Three Tea Parties And The 2016 Republican Race

The Obama-admiring and allegedly George Soros-financed Occupy Wall Street movement seemed to be efficient, effective and highly centralized when it publicly emerged in 2011.

Occupy quickly accomplished the same effect on the Democratic Party as its perhaps-polar-opposite on the Right, the "Tea Party," is credited (or disparaged) for doing to Republicans: causing its target to lurch sharply from the center towards the political fringe.

The Tea Party movement is different. The movement is largely characterized by its adherents in elected office who advance the causes of fiscal restraint and, to a lesser degree, constitutional and lega restraint. As such it is less a reform movement than a restraint movement. Yet the Occupy comparison is apt. The Tea Party's true target is not its ideological antithesis nor its obvious political opponents, but rather the GOP establishment.

This classic view is somewhat at odds with the activist view, which supports the theory that the movement consists of three competing camps which do not often move in tandem or even in a coherent direction.

The first camp is an establishment co-option of the movement. This camp does not consist of elected officials like Senators Ted Cruz and Mike Lee, who are outsiders on Capitol Hill. It consists of the Washington political, business and media establishment insofar as they see how using the movement to both make money and divert resources (e.g., activist contributions) away from the second or third camps.

The second camp consists of the populists. These are the people who "feel" their positions. This camp is described as more psychological than ideological. They have energy but rarely a coherent strategy that they can execute. Also lacking in tactics and often the barest of campaign materials, this camp can get primary challengers and even the occasional general election challenger like Delaware's Christine O'Donnell, but they cannot win and have not yet won a race of major significance.

The third and smallest camp consists of those intellectuals and professionals who understand both the ideological basis for policy reform and the mechanics of a successful campaign. They are not necessarily activists altogether they work just as hard; they may be described as working smart to make up for the lack of sheer numbers. They are most often found in or around businesses and campaigns and do not need to use the tea party label. They do, however, act as opinion leaders and, crucially, they don't just talk and scream and wave signs. These are the dependable voters who are self-motivated.

They also write checks.

So which camp is dominant? The clues lie not in what is said, but what is done. That is, it's all in the behavior.

Monday, December 21, 2015

What Is A Right?

.
There are some self-styled free-market advocates who believe that free markets and liberty require absolute open borders. This is an issue because of the recent Senate bill introduced by Senators Ted Cruz and Jeff Sessions -- to which I link, and which I strongly suggest readers carefully read, and which I further discuss here:

http://www.ericdixonlaw.com/2015/12/examining-h1b-visa-reform-bill-and-its.html

to restrict H1B visas to those workers making at least what comparable American workers made, or $110,000, whichever is greater. The goal is to prevent American companies from firing American workers and replacing them with cheaper foreigners.

Funny how the discussion divides along lines of citizenship more than ideology. There are some "Objectivists" (the Ayn Rand disciples) -- not surprisingly, they consist largely of foreigners who really, really want to come here -- who argue that foreigners have pretty much an absolute right to an H1B visa.

The "right" to come to America is is not a "right." This is a privilege. As for the H1B visa and any other visa granting the right to entry, any such visa is, legally, the equivalent of a conditional license, granted at the discretion of the grantor (here, the United States). That discretion and power is inherent in property rights and the concept of one's dominion (which dates back in human history to the Old Testament). It is inherent in the concept of the property right, the right to sovereignty, of the owner and possessor of the property; here, that means the people who are citizens of the United States. To oppose that concept is to oppose the very notion of the sovereignty of the United States, and at that point, we have a rhetorical invasion of a country that is functionally equivalent to the stated desire for a literal political revolution to overthrow and dissolve the target country.

In this sense, advocating a "right" to open borders, which requires that the host country surrender ITS right to that dominion and control -- i.e., its sovereignty -- imposes a duty, obligation and penalty on others. As such, it fails the definitional test of a true right, which is one that burdens nor affects anyone else.

The Founding Fathers enumerated three basic rights from which all others derive: the rights to life, liberty and the pursuit of happiness. These true rights burden no one else nor require the action, or approval, of anyone else. They are "natural" rights. In that light, under that definition, is the "right" to an H1B visa the same thing?


Sunday, December 20, 2015

Examining The H1B Visa Reform Bill And Its Opposition

Noted Objectivist and Ayn Rand scholar Yaron Brook has taken Republican presidential candidate senator Ted Cruz of Texas to task for his Senate bill that would amend the current H1B visa program to require employers pay visa holders the greater of what American workers (citizen or permanent resident) made two years prior to the petition, or $110,000 annually (adjusted for inflation).

The bill targets American employers seeking to exploit the nonenforcement or lax administration of the visa applicant examination process by bringing in cheap labor, using visa holders to replace higher paid Americans.

(QUICK! - WANT THE FACTS? Senator Cruz's immigration proposals are outlined on this official presidential campaign website, which you can access here. And then, you can donate to Cruz's presidential campaign using this link!)

In so doing, Dr. Brook advances a position with which many self-described conservatives -- and even a good number of liberals and "Reagan Democrats" -- would disagree. The labels actually are irrelevant, but it is those labels and the misguided fealty to them and the principles which some associate with them, which are the true barrier to a real world solution acceptable to Americans. Instead of trying to make our positions and opinions fit a preconceived (and subjective and possibly incorrect) notion of how a certain philosophy is defined, perhaps we should concentrate on looking at an issue and asking whether we agree and what we would change (that is, let's look for a solution) rather than concentrating on whether our position is something that Ronald Reagan would have done, or Ayn Rand would have written, or whatever. But I digress.

It is helpful to explain for starters the program at issue here. An H1B visa is a speciality visa available only to employees engaged in a special occupation whose employer cannot find a citizen or legal resident who can fulfill the requirements of the position. The visa is temporary, and may be obtained only by the petition of the employer, not the employee. Only after the employer is granted the petition can the employee then apply.

Here is the problem. Americans are increasingly unemployed, underemployed and overeducated. The number of Americans not in the labor force is one of only two numerical figures to routinely increase in each new monthly jobs report issued by the Department of Labor (the other being the noncustodial civilian population, that is, people of working age not in jail).

Now, what does the H1B visa program have to do with this? On the surface, at least, it appears to have an admirable and worthwhile goal of helping American business find and keep truly unique talent not available domestically.

Except the reality is different.

Over the years, the program has become abused. The program was intended to help American companies find and keep truly unique and valuable talent which they could not find domestically (e.g., world class athletes, models, computer engineers doing something cutting-edge like blockchain technology, or certain key employees in basically the managerial or ownership classes (think the law firm partner from Hong Kong who comes to New York to build the global practice). 

The Cruz bill (co-sponsored by Sen. Jeff Sessions) sets a floor of $110,000 as an annual salary, which is appropriate for such key talent and essentially says that anyone making less is really not crucial to the enterprise, a supremely uniquely talented worker, or whatever. 

This salary floor is a great prong for the bill. Because those of us in the service economy, who hear a great deal of scuttlebutt, have been hearing about serious abuses.

The result is that junior level white collar professionals, whether they be lawyers, accountants or IT engineers, as well as department store clerks (and the author knows examples of each), are increasingly consisting of H1B visa holders all too willing to undercut Americans of equal or superior talent for a shot at American salaries, generous American government benefits, landing a citizen spouse and maybe de facto permanent American residence if the march towards full nullification of the immigration laws continues at the current ramming speed.

To be fair, the foreigners are not really to blame here. They want to come here. It is the American employers who are willing to undercut Americans' wages and are exploiting the lax or non-existent enforcement of a program that gives lip service to stated regulations. Imagine that: the opposite of the typical government impulse towards overreaching, overregulation and even overcriminalization! (Warning: Violations of regulations, which go unenforced today, can be enforced criminally tomorrow. This is a trap for the unwary.)

American citizens on the ground know the sad truth about the H1B visa operation. They were born and raised here, played by the rules, studied and worked hard, and now find themselves competing at a distinct disadvantage in an economy where skills are commoditized, fraud (including the puffery or outright forgery of credentials) is on the upswing with violators willing to play good odds of Catch Me If You Can, and employers increasingly make hiring decisions on cost instead of quality.

Employers, to whom the program is geared, have long tried -- and largely, very successfully -- to game the system to misrepresent get in supposedly exceptional and unique employees without whom the business would soon perish.

The immigration authorities are supposed to examine the veracity of these applications. These responsibilities are most often honored -- in the breach. If you think Immigration and Customs Enforcement is overburdened (or worse, told to stand down) in its mission to secure the southwest border, think the same with these work visa applications.

The H1B visa program was not meant to recruit foreigners when a suitable American citizen was "not available" at a certain price point (e.g., salary) or willing to travel most of the time domestically because they were single or otherwise without responsibilities or restrictions on their mobility. But that is what it's become: a cost-savings measure.

And the opposition to the Cruz-Sessions bill is curious and misguided. Americans have every right -- indeed, a duty and responsibility to their fellow citizens, their families and especially their children -- to ensure a level playing field economically. Allowing a de facto open borders policy for cheap foreign labor, particularly when it comes from foreign countries which almost universally do not allow Americans to come into their economies, tilts the playing field against Americans. It is inherently unfair, because foreigners who come here, and screw up, or commit crimes, or whatever, have the option to go home. Americans cannot flee abroad -- without serious consequences as well as practical and logistical barriers -- with the same readiness.

An "open borders, open markets" argument does not work, because for Americans, there are no open borders for them nor open markets for them. (This is a perspective not shared by foreigners, who, like it or not, came here from other countries exploiting American mediocrity and who may feel slightly sheepish at displacing the natives.)

A true free market involves reciprocity, a trade between equals. What we have today is a rigged system in which Americans are disfavored in their own country.

The opposition to the Cruz-Sessions bill may be grounded on a misguided and perhaps even inadvertent philosophical foundation. 

First, it tells people that Americans have a duty, except that they don't, to allow and encourage their direct competitors to come in. It is as if Americans must "prove themselves." 

But why? Are Americans uniquely required to prove their merit, in their own country? If so, this is not a reward to Americans. The imposition of a higher standard is not a compliment. It is a penalty.

In addition, no one should be required to prove their worthiness by giving their detractors or potential replacements the tools at which they may meet their own demise. This is the entire point behind the outrage by Disney workers being told to train their replacements. 

And to whom is this standard to be proven? To foreigners? To employers who, to be fair, are entitled to maximize their profit? Again, this reduces to Americans suffering a penalty...for being Americans. This strikes me not as exalting Americans, or America, but rather as exploiting, demeaning and attacking Americans. 

This may be exactly how it feels to the American losers losing their jobs to cheaper foreigners under the current H1B visa system, whether it's articulated properly or not.

Furthermore, as explained above, the playing field is not level. Foreigners who come here, exploit our system, and still lose, are rewarded for their "bite the hand that feeds them" ingratitude: They have the option to go back home.  They risk little or nothing. Their reward-risk ratio is favorable...for them. 

Not so for Americans who "fail" or "lose" on a domestic playing field tilted against them. The fundamental inequality is a preference towards foreigners, and is de facto discrimination against Americans. Their reward-risk ratio is the inverse. But the Cruz-Sessions bill detractors may not care about that -- perhaps because the current system concentrates the rewards among foreign "winners" and socializes the risk and the losses among the domestic American "losers."

To advance this argument, to suggest it is philosophically sound, either argues that Americans are inherently inferior because they are Americans or that Americans must suffer the "luck of the draw" because they are situated here and, well, life is not fair.

Such arguments and motives are the domain of the Gramsci Marxists, the Angry-Left, Hate-America crowd which seek to undermine everything representing American hegemony and indeed Western civilization and capitalism. It should not be part and parcel of the argument or philosophy of those who seek to defend those institutions.



Ted Cruz's Immigration Poison Pill?

Senator Ted Cruz of Texas, a current Republican presidential nomination frontrunner, has a comprehensive immigration reform plan which opposes amnesty and also calls for an end to birthright citizenship.

Ending birthright citizenship poses some interesting, far-reaching and perhaps unforeseen problems, as I pointed out way back in 2010.

Could these problems be part of a Cruz silent-missile (get it? Cruz missile? heh heh) to attack more Washington DC federal bureaucracy? Could the "solution" be a "poison pill" type maneuver, designed really to dissuade the stated object and instead to effect other reforms as part of a negotiating tactic? What do you think?




Thursday, December 17, 2015

Neocons on ISIS, and America's Age of Atonement

Much of advocacy is knowing what values and emotional triggers underlie what is being said. This is sometimes called the unsaid message.

The same is true in what passes for politics -- or theater -- these days. (See this author on presidential puppetry; highly recommended.) 

But what happens when someone you might think (incorrectly?) is an ally, actually lobs a strong moral judgment against you?

Paul Mulshine's NJ.com column appropriately hits on the flaws in "neocon" ideology as most recently and tragically expressed by John Podhoretz. Now, in many quarters, Podhoretz is considered a conservative, a Republican, whatever. But Podhoretz attacks those who raise questions about American intervention in the Mideast, including questions about the method if not the ultimate target.  

And in so doing, Podhoretz actually raises very troubling implications about America's basic role in the universe, and Americans' basic duty, which are indistinguishable from the Marxist world view of "blame Americans first." 

As you'll see in Mulshine's article which links to Podhoretz's New York Post piece, Podhoretz calls the non-interventionists (e.g., Ted Cruz, Rand Paul, even Donald Trump) "repugnant" for simply failing to endorse full-blown war on the ground against a somewhat amorphous enemy in ISIS (also known as ISIL).

This is not merely an error in judgment. It is to use a dog whistle to chide "conservatives" while signaling to the "far left" that there is a shared disdain and moral disapproval of America in its essence, and really of its common people.

You see, Podhoretz has hidden messages. These are the messages which one might not understand, or be able to verbalize. Yet they are the messages that are felt. Physically. This is where and how psychologists and therapists make their money.

The core, unsaid message: Americans have a duty -- an obligation -- to rescue the rest of the world. That is often referred to as American exceptionalism, a term which actually has Marxist origins and is idiotically used by Republicans trying to compliment America. 

But saying Americans must sacrifice their safety, their children's lives, in a war to protect, well, exactly on whose behalf are we fighting now? -- that is not a compliment.

It is a mandate. And it has the same effect as a punishment. That is, Americans must be punished for being in a great country, for having a reasonably free economy, for having a Constitution, for the essence of what they are...you get the picture.

This is an emotional trigger that is no different from an attack, a racial epithet, indeed, directed at a target solely because of the immutable characteristics of his being (e.g., race, height, disability, etc.). Ergo, you are inherently bad because you are an American.  

Or irredeemable. Beyond redemption. What the Orthodox Jews call amalek.

When you decode the message, you see the essence of this name-calling is an absolute disdain for the basic humanity of fellow American citizens. 

It is no different from the core Marxist disdain for achievement and self-esteem, hidden of course under the cloak of human rights and rhetoric exalting the common people too uneducated -- or exhausted -- to know better.

When the neocons call for American intervention, they are calling for average Americans to sacrifice their lives. Because to them, the average American is nothing more than cannon fodder.

Might that explain the Republican Establishment refusal to engage the growing Marxist philosophies infecting and now dominating the Democratic Party, Washington DC and many opinion leaders in big business, the news media and the entertainment and legal industries? 

Because, in fact, on an emotional and hence a visceral basis, the Republican and Marxist establishments share the same core view of Americans -- the "99%"?

This is why the "neocon" message can be decoded and explained very simply to average Americans -- your average jury, that is. And this is where there is political opportunity and also the opportunity for tragedy.
 

Wednesday, December 16, 2015

Bridgegate Revisited: Federal Judge Slams Gibson Dunn For Not Taking Notes

The official law firm for the Office of the Governor of New Jersey was sharply criticized by a New Jersey federal judge today for not taking notes during its many interviews of witnesses in the "Bridgegate" scandal which has led to one guilty plea and two indictments thus far. 

Press coverage tonight is here from the Star-Ledger and the Record of Hackensack.  

Compare the judge's points with my own critique of the report is given in this April 2014 article

It seems the "hide the ball" strategy is consistent with some federal prosecutors' practice of refusing to tape record witness or target interviews -- because that tape would be evidence, and would prevent agents from using their subjective notes as the only evidence of what an interviewee said (allegedly) at any meeting with government agents. I addressed this danger in this May 2014 article. While the FBI is making progress in moving towards a policy of routinely recording interviews where such recording is beneficial to the interviewee, the agency's inclination to hide exculpatory evidence remains.

As such, the threats to the liberty of innocent Americans remain. 


Wednesday, December 2, 2015

Litigation Financing: A Discussion

Some interesting insights into the world, practice and potential ethical pitfalls of litigation financing from this Above The Law post from fellow Yale Law alum David Lat. 

Tuesday, December 1, 2015

How Mark Zuckerberg's 99% Giveaway Is 100% Wrong

The announcement by Mark Zuckerberg -- the founder of the social medium Facebook -- that he and his wife will give away 99% of their company shares to a charity -- has inadvertently sent several unintended and very negative messages. I can think of five.

And none of them are good.

First, he has signified to his and his wife's newborn daughter that she comes second, that at a certain point she has "enough" and that a whole bunch of strangers come ahead of her. Their daughter does not display one ounce of selfishness or materialism if later she questions this decision. Worse, should she encounter unexpected privation, she will be fully entitled to blame her parents' adulation-seeking. The bottom line is that she, and any future siblings, are her parents' primary responsibility. Not some smug strangers.

Second, and worse, he told this to the world, when it's really none of our business, but by doing so he robbed his daughter of her privacy. This point is emphasized by its brevity. This is purely, simply shocking to the conscience. 

Third, he is also signaling to Facebook shareholders that he doesn't believe very strongly in Facebook's current share price. It's hard to spin giving 99% --- or even a far less amount -- of something away as signifying your confidence in the stock. 

Fourth, Zuckerberg is showing that he cares more about chasing and receiving the moral approval of others, more than fulfilling his real duties which are to his family, and secondly to his shareholders. This giveaway is not a virtue. The giveaway is a quick play for applause, from a segment of the opinion leaders who insist on being the gatekeepers to public acclaim, and disdain any achievement which circumvents their traditional role. As for Zuckerberg, his act is selfishness. Worse, it is public. This is narcissism. Call me old-fashioned, call me an iconoclast, call me far worse, but I believe the purest motives are the ones kept hidden. Doing good and looking good are two far different objectives. 

Finally, the fifth unintended message: He is signaling, especially to his envious detractors, that he either is not confident that he has "earned" his wealth, his achievement, or that he can be bullied by his inferiors -- his lessers in every regard -- into paying the protection money racket and giving it away in exchange for avoiding vicious (if entirely unearned) criticism.

His giveaway is totally wrong.

Monday, November 30, 2015

Envy As The Enemy of Conservativism

This article explores the meaning of the adjective "conservative" as it is used to describe people.

While "conservative" is most often used as an adjective to modify a noun in a political / partisan context, it is more appropriately used as a philosophical modifier to describe one's larger values and perspective on life. 

Those values, it seems, are so much more than a mere reduction into narrow, partisan political categories.

It seems that one prime characteristic of the conservative is the principle of respect. By this, I mean a respect, in many regards, and for many other people, principles and beliefs. 

That respect often has a common denominator far from the least. It is a respect for the effort of others -- and the character which that effort demonstrates.

Effort is independent from the concepts of achievement, success or sacrifice, even though effort is often found in the same mix as these other concepts to produce ultimate achievement. One can achieve without being successful; think of the marathon runner who achieves a particular goal (a targeted time or pace) without winning. One may be successful without sacrifice, such as through the receipt of luck like the game-show contestant or lottery ticket winner. Yet it is exceedingly rare to achieve success without either sacrifice or effort, and it is even rarer still for sacrifice not to involve a degree of considerable effort (such as the effort to exercise the discipline to withstand and overcome privation or deprivation).  Hence, effort should be held preeminent as a value. 

Now, effort is no guarantee of success. It is not even predictive of success. Yet the absence of effort is largely predictive, if not of failure, then of one's failure to fulfill one's potential -- what might be called one's potential to achieve. 

Ability is a strong driver towards achievement. Yet many disciplines are full of people with ability. But who are the ones to "make it"? Thus, while ability is most often found prior to achievement, and ability may be an almost-necessary precursor to achievement, it is just not a sufficient precursor; something else is needed. That difference-making element is effort.

I contend that when we write that we respect achievement and success, it is more accurate to write that we respect the effort that led to that achievement. After all, we do not respect one's achievement -- fortune, really -- of holding the winning lottery ticket, an event for which luck is virtually the sole contributor (save for stubborn foolishness deemed as perseverance). 

And while ability and skill contribute to the achievement, those qualities do not illustrate one's personality, one's character traits, in the manner of effort. One may be slothful yet still possess great skill (and the luck and occasional flash of discipline to use it), such that the skill does not speak to character. Yet the reverse is quite different. Mediocre skill combined with great effort can result in great achievement, so much so that one's mediocrity is often (and incorrectly) used as evidence of one's grand character, as if mediocrity itself were a credential and not a mere circumstance or relative handicap.

As such, effort illustrates the character of respecting the traits so often found to produce and foster achievement: discipline, perseverance, dedication, and so on. Therefore, we find ourselves respecting achievement because it serves as the proxy for those traits. 

It follows that conservatives admire and exalt not individual achievement, but rather the traits whose presence so often is necessary to foster the achievement. 

But what of the inverse, the opposite of those traits? How does one view the envy, jealousy and schadenfraude towards those who achieve?

The reasoning outlined here hints at a basic incompatibility. If conservatism at its personal, psychological core exalts the traits that induce and inspire effort, then conservatism must also scorn, dissuade and punish the traits which punish effort. It follows that the emotions of envy and jealousy must be targeted, because those emotions reward non-effort and those who seek to benefit from the effort expended by others. As such, envy induces the redistribution of the fruits of positive behavior away from its possessors (the good actors) and towards its detractors (the bad actors), while localizing, concentrating and restricting the costs of effort to its expenders.

But what is envy -- at its root, at its core, what is it? It is just desiring what another had -- I wish I had that too -- or must it involve the demand to take from another -- I don't only wish I had that, but I must deprive that other person of his achievement, his effort, and keep it away from him?

If envy is really the latter, it supports the inference (really, it requires it) that what another has, his property, his achievements (financial, relationships, etc.), perhaps something totally intangible like self-esteem or confidence, is really rightfully owned by another? And by so doing, envy becomes the antithesis of property rights. It becomes the emotional manifestation of the belief that one person can never claim unfettered, unquestioned possession of his work, his sacrifices or their products, that in fact everything he has is subject to the constant threat of confiscation or destruction, at the hands of another who asserts either greater power (e.g., might makes right) or a moral superiority ad infinitum over the former, lesser person.

Envy rewards those who avoid effort. On that basic level and for that basic reason, envy would appear to be the polar opposite, the mortal enemy, of the effort so often responsible for achievement and the conditions necessary for success. It follows that envy and its associated emotions are incompatible with, and inhospitable to, the positive emotions necessary for effort and therefore for success and achievement in any arena.

Eric Dixon is a New York lawyer, strategist and business advisor. 



Friday, November 27, 2015

Starting Up A Startup

Get real...or get lost. That's what investors and venture capitalists say.

I've consulted with various startups in various industries over the years. Most prospective founders -- who never end up as my clients either for legal services or management services -- are daydreamers. 

They make the mistake of thinking that others will invest their own money, and assume the risk, that the founder himself will not do.

That is the height of stupidity, of arrogance, and of disrespect.

You should have at least $10,000-$25,000 of your own money to invest in your own venture. This is a modest amount and most people can get this amount from credit card balance transfers. This amount is needed to set up the legal structure for a business entity with a separate legal existence, open up a real bank account and have some funds to start development and so on. (This is also why I ask startups for a retainer, because the "real ones" actually come to the meeting with a real check, and leave having written and endorsed a real check.)

Everyone else is either full of nonsense, has no money, or is trying to get advice for free. Someone who claims he or she cannot raise and document having it and contributing it into the business (that is, into a segregated business account) is either a fool or a faker. The investor need not decide which is which; he will simply shake your hand politely, walk away, and toss whatever materials you've given him into the nearest waste basket.

If you cannot obtain and document that you've spent this on your own startup, it is reasonable for a prospective investor, lender or landlord to assume you have no friends who think your venture has potential, you have no money of your own -- which supports the inference that you are an absolute failure, loser or fraud  -- or you're simply too smug to spend your own money first. 

My advice to you is that if you don't have this minimum capital on hand, you (a) have no business starting a business, much less (b) asking for investments from anyone else. In fact, asking others to invest in you, when you are unwilling to invest in yourself, is a sign of disrespect and insults the intelligence of your targets. 

And when you insult the intelligence or integrity of others, you burn credibility and assume a risk of being remembered in the future for all the wrong reasons.

Eric Dixon is a New York-based lawyer and startup manager who has advised numerous young businesses on various matters.


Monday, November 23, 2015

So Lawyers Are The Most Messed-Up?

And in other breaking news, humans breathe a mixture of nitrogen and oxygen. Story at eleven.

There is a somewhat serious report out about the relatively higher prevalence of mental illness, anxiety-related disorders and the like afflicting the legal profession.  As someone with a combined quarter century of experience within the profession, let me decode for you what that means.

First, I write "somewhat serious" because although the issue is serious, the overall message for the general public -- ergo, the customers, that being, many of you as readers -- is what is really important. And that angle is totally ignored!

Second, let's understand something. Customers and clients are looking for solutions. Most often, people want a particular result. Who are we kidding? People want a certain outcome, and the smarter customers realize that they are going through a process involving an opponent, and are trying to achieve the best possible outcome in light of that opposition. It's because of those characteristics that the legal profession can be stressful. 

You see, the legal profession is all about managing an adversarial, contentious process whereby people are trying to assert, or defend, their rights, whether those rights are their civil rights, constitutional rights, privacy rights or property rights. (Most disputes involve those four. You undoubtedly will name others.)

The nature of the business of lawyers, the settlement of disputes, is not pleasant. Most people hate, and in fact cannot, handle their disputes. That's why lawyers are hired. Lawyers are the unarmored gladiators, the mercenaries for hire. 

In short, lawyers get paid to do what most people cannot or will not do for themselves. It can be unpleasant work,  grueling, tiring and exhausting -- and that's when you win. 

As for reputation and status, that is the thinking of the 1980s. It is questionable whether lawyers (or accountants) have the same professional patina they may have enjoyed a generation or two ago. There are undoubtedly those who are in the industry because of its perceived (or so they think) status, and likewise, countless others who despise lawyers for that status. All of that thinking is at least 20-30 years behind the times.

There are some red flags identified in the report. It identifies the prevalence of workplace bullies, the hegemony of white men in the "big firm" ownership structure, and so on. The bully problem is endemic in Western post-industrial society, as bad characters find increasingly fewer outlets for socially-acceptable aggression (or other traits) and therefore resort to exercising these emotions in arenas where there is less resistance.

Are there bullies and bad bosses? Absolutely. Are they more prevalent in the legal profession that in the general population? Not sure. 

Should customers care? No.  Not at all. Unless the bad behavior affects the work product and/or inflates the inefficiencies that get reflected in a higher bill -- which goes to the issue of whether a big organization, a big law firm, is the right solution provider for the customer.

Customers look for solutions, not for some sort of social reordering. Bad bosses are not the customer's problem, they are the employee's problem. But today's employee may be tomorrow's entrepreneur. 

And for every bad boss, for every bad co-worker, there is a corresponding business opportunity for a classy, competent and professional lawyer to capture business or capture that cubicle or windowed office. 

Competence and class still matter. 

What do you think? 


Wednesday, November 18, 2015

When Free Speech, Isn't Free: How Forced Political Speech Subverts Freedom

You have the right to speech and expression.  Free speech and expression.

You also have the right not to speak -- sometimes a much more powerful statement is made with silence.

But what happens when your money is used, without your consent, to fund political campaigns?

And isn't your voice -- including your expression through deliberate non-participation -- diluted or silenced when you are compelled to speak (with your money) even when you don't want to?

There's a new Seattle, WA plan to give each voter $100 in vouchers (four vouchers in $25 denominations) which can be given out to select qualifying candidates for city offices, who can then redeem the vouchers for real cash for their campaigns. The money for these vouchers comes from tax receipts. 

New York City has had a similar plan for years, whereby it gives candidates for city office up to six times the amount of qualifying contributions. The difference in New York City is that the "matching funds" go straight to the candidate. 

This raises the question of whether the public is being forced to engage in political speech, because it is forced to fund it. And a system which issues vouchers is designed to encourage people to "spend" the vouchers, meaning to underwrite candidates to whom they would very likely not give a dollar of their own money.

The movement towards compelled political speech is in line with the cries, from self-styled good-government groups over the years, to address declining voter participation rates. Those rates have declined, largely because the denominator -- the number of people registered -- has increased as it has become increasingly easy to register. (Some would argue that it is way too easy, that it is an invitation to fraud, etc.)  Yet the constant is the numerator, the top number, representing people actually interested in civic affairs and motivated to vote pretty much on their own.

Some good-government groups are run by people who make a decent living creating and then publicizing the problem of "low voter participation" as a way to raise funds for their pet non-profits. (Hey! Who said there wasn't money in politics?!) But that should not be confused with the existence of a real problem, or the absence of one.

Some candidates will complain. But these will be the voices of unearned and frustrated ambition, complaining because government won't clear the path for them to realize -- with as little opposition as possible -- the outcome (i.e., winning) to which they believe they are entitled.

To them, I argue: You have the right to run for office, but not the right to take our money to do so, nor do you have the right to rig the system so you can do the second in order to achieve the first.

And the gentle inducements, meant to play on the guilt which is becoming so common in Western society today, and its associated, manufactured need to receive the approval of others (in turn inducing a mania of efforts to seek and "earn" it), all point to forced speech, forced expression, amounting to squeezing money out of us like toothpaste from the tube, to further the desired outcomes for a few self-promoters. 

When you are compelled to speak because you are paying for it, and the government is trying to induce you (the gentle form, feeling like persuasion when it is really a gentle-feeling form of coercion) to participate by making you feel that your own tax dollars will be wasted - because waste is a bad thing, didn't you know -- if you don't "speak" and use those special-purpose vouchers, is that free speech?

If you're a Seattle taxpayer, aren't you being forced to speak? Aren't you being forced -- er, persuaded -- to give money to some candidate? And worse, it's probably a candidate who cannot or will not work hard enough to raise funds on his own -- that is, the candidate is probably someone with little to no support from neighbors, friends, and thus really has no business running for an elected public office?

And a graver question is this: Isn't your voice diluted when we increase the number of participating voters, and candidates, through this soft form of compulsion?

It's bad enough to drown out the voices and votes of the concerned, self-motivated voters with the voices of the unconcerned, the irresponsible and, in some cases, the outright corrupt who will buy and sell their vouchers. 

That's voter dilution. And that is the antithesis of the First Amendment protections against government encroachment on what the Supreme Court itself has often called a "core constitutional right."

Saturday, November 14, 2015

Injustice: When Sleeping Jurors Cost You Your Liberty

Trials are always a risk. Somewhat with a judge without a jury, in what is called a "bench trial." But much more with our "peers" -- that is, juries.

Juries make decisions as to guilt or innocence, and in some civil trials they determine not only whether someone is liable for a damage, but also the amount of liability and the defendant's share of liability (what in negligence cases is called "contributory negligence.")

There is, however, little to no quality control on jurors.

There is the jury selection process and a certain number of challenges you can use to strike (remove) potential jurors in the jury pool.  

But once selected, you're at the mercy of the selected jurors and you can only hope that juror misconduct is noticed, brought before the judge's attention and acted upon by that judge. 

This high-profile New York City corruption case has drawn reporters who are noticing some jurors sleeping and doodling.

Now, many of these cases are in fact boring from minute to minute. I sat in on part of one riveting criminal case for a time, and while there were brief and very interesting revelations, there were other parts that were excruciatingly boring.  Judges who are bright recognize this, and rarely hold a jury in the courtroom for longer than an hour at a time. (Another reason: bathroom breaks.)

I remember that particular trial, because there were enough interesting exchanges that the attentive reporter sitting next to me and I conferred and said to each other, essentially, "there's no way this guy gets convicted."  (Postscript: You know where this is going. The defendants got convicted and sentenced to eleven and five years, respectively. The reporter friend and I still wonder, years later, what trial the jury was watching.)

Now, there is one "check" on juror misconduct. A judge can always nullify (or put aside) a jury verdict of guilty (but note, not the reverse; if twelve Sleeping Beauties find you not guilty, then you're not guilty, no matter if you have two blood-stained hands, a smoking gun and a videotaped confession). 

As for the Sheldon Silver trial, once you put aside the salacious corruption details and the class envy which is being exploited, there are many other factors that would worry someone who is in fact innocent, or his lawyer. (Author's note: The Silver trial involves very serious allegations and what seems to be very formidable evidence. Nothing here should be read or implied to be defending Silver or criticizing the decision to prosecute him, and is based merely on press reports.)

The nature of any defendant today -- you're a business owner, you're a rich guy, you're a lawyer or, never mind the trial, just throw away the key, you're an elected public official -- means jurors who survive the voir dire (juror weeding out selection process) are often quite judgmental starting the trial, or fairly ignorant and ill-informed people. 

And those judgments can often mean an entirely innocent person enters the courtroom guilty on arrival.

The best advice? Stay out of trouble. Anything else becomes a crapshoot with increasingly difficult odds, and the odds are against you.

Eric Dixon is a New York investigative lawyer.