Is The Supreme Court Truly Supreme?

As a lawyer, I am most intrigued by the judicial branch of government.  The Supreme Court gets most of the headlines within legal news. But as my late great mentor Rollie Rogers (Colorado’s first Public Defender) said, "There is more (in) justice to be found (in) the lower courts down to the municipal level than there will ever be at the Supreme Court."
And while I believe this may have merit, it is to the Supreme Court that I turn my focus.

With the latest Supreme Court Justice coming from Colorado, and rumors of retirements abounding, I thought I would do a bit of analysis. I have gotten close to arguing before the Supreme Court but was denied, as are the vast majority of cases. It has been said that the hot button issues post Justice Scalia’s death were delayed.  The Court’s recent announcement of cases for the 2017 term makes up for the reticence.  The Court has already announced that it will hear cases on the following:  Trump’s travel ban, gay rights v. religious freedom, gerrymandering, internet/cellphone privacy, corporate violations of human rights and worker groups to address workplace issues.  Abortion, voting rights, and health care are also expected to make the docket.

The statistical analysis to understand ideological make up of the 2016-17 Court is not yet done and may skew due to the absence of a justice.  I am using stats for 2016 with some averaging in my analysis.  Most of these statistics come from a source called the SCOTUSblog Stat Pak.

Before launching into statistics, I thought some insight into my thinking would be helpful.  To my knowledge, the US Constitution does not refer to conservative/liberal, republican/democratic thinking, The Justices of the Supreme Court, the final arbiter of matters constitutional, should be interpreting the constitution not with conservative or liberal ideology, but rather with a disciplined legal analysis that recognizes constitutional principles in the context in which the cases arise.  The Founders knew not from airplanes, automobiles, pipelines, electricity, or the Internet, nor a country of more than 300 million people. Abraham Maslow might comment, "That is a lot of lab rats in the maze."  For those modern issues the Founder’s intent is inapposite.

For the last several years, approximately 8,000 cases per year are filed with the Supreme Court.  Oral argument was granted in approximately 80 cases.  In average, an additional 100 cases were decided without plenary review. On average for the past 5 terms, 49% of the cases were unanimously decided.  8% of the cases were decided 8 to 1, 12% of the cases were decided 7 to 2 and 11% of the cases were decided 6 to 3.  So 80% of the cases were decided by significant majorities.

19% of the cases were decided by a 5 to 4 vote. Those cases covered areas including 3 criminal law cases and one gerrymandering case.

For those of us here in the 10^th Circuit,  the Court accepted 3 cases, 1 was affirmed and 2 were reversed.

I am left with the conclusion that the Supreme Court may not be as divided as Congress or the country. Would another Justice appointed by our current President make a difference? Given the breakdown just presented, I suggest not.  If the Court rules on the 7 cases I mentioned in the first paragraph, we might project only 2 of those cases will be decided by a 5 to 4 vote.  I suppose those owners whose ox had been gored will be upset, but my thinking is that those justices may have a better vision for the country than either the Congress or the President.  Those two branches of government seemed to be more concerned with a vision of government and their reelection than a vision of our country.

Caveat Emptor?

One of my recent experiences of buying something on line and trying to return it, turned into a minor nightmare, so I write this column as a form of therapy.

During my first year of law school, we studied contract law.  A part of that course was spent on the concept of CAVEAT EMPTOR.  The principle that the buyer assumes the risk of quality and condition unless the buyer protects him/herself by warranty or there has been a false representation.  CAVEAT EMPTOR was an English common law principle that replaced the old Roman principle of CAVEAT VENDITOR that actually places the responsibility for defects on the seller.  Those principles worked fine when we had face-to-face transactions on Bond Street or the Appian Way.  Now, we have the buyer’s digits facing off against the seller’s digits with the hope that the computer networks can sort it all out.  CAVEAT EMPTOR always fell away when the buyer could show a false representation.  I am not sure I know what the standards for true and false are anymore.  The digital world is compatible with our highly atomized society where communication is often electronic, whether by Facebook, email or text.  We hang out in our little cubicles with our laptops replacing windows for a look out on the world.  Long gone is that face-to-face world, as harsh as that may sound.  Want to have lunch?

In our political world, politicians now communicate by rumor, leaked information and Twitter. Gone are press conferences where the press gets to go face to face with the politicians.  This may in part be the result of the news media confusing entertainment with real news, or the need to be first with a story regardless of whether it has been fact checked.  Or it may be the distortion field on which politicians play where there is no true or false (eg “I did not have sex with that woman”; I did not mock a severely disabled reporter, etc.).  It is not wrong to question where our politicians are leading us nor is it unreasonable to ask them about conflicts of interest.  Who was it that said: “Trust but verify...” ? Independent of the political sphere, it is also fair to question where society is going and is everybody on board. 

In our commercial world, we buy price competitive goods, probably manufactured off shore, branded by a name from the past, shipped by foreign carriers to multinational distributors and sold through outlets (brick and mortar or our laptops) by vendors who claim no responsibility for the quality of those goods.  I think delivery of health care is currently being thoroughly examined because it requires face-to-face interactions, paid for by a soulless third party, who along with everyone else, lost the ability to value that kind of service.  I think there are many health care professionals who are resisting the impulse to reduce their patient interaction for the sake of maximizing profit. The legal profession, always a paragon of virtue,  has taken the measurement of the hourly fee to dizzying heights, and now even sensible corporate clients are beginning to question the value, or at least the measuring stick, of those legal services. I have recently learned that there are approximately 894,000 sole proprietor owned businesses in Colorado. Surely that is a crowd that enjoys one off relationships. I remain a hands-on lawyer that glories in attorney/client relationship when I have that face-to-face opportunity.

Thanks for allowing me my therapy; I’d be happy if you would share your thoughts on any of my musings or ramblings.

Has the Practice of Law Changed?

Recently, I had the privilege of attending a celebration for two friends who have been practicing law for 50 years.  That is a righteous period to perform good services for people.  These two lawyers have done that.  I aspire to that goal, but it has made me explore what our profession has become and what I should be doing to accomplish my goal.

In my opinion, the legal profession has traveled the road away from professionalism and toward commercialization. The public is bombarded with ads from lawyers. Advertising is now an accepted practice, justified by the argument that more people are aware of lawyers and therefore have greater access to the justice system.  I am skeptical of that premise. There is an enormous number of people who self represent themselves, in divorce cases, landlord tenant cases, and most notably, in foreclosure actions.  It was a woman representing herself in the Federal District Court who convinced the Court that banks should have the original loan documents before they can foreclose. That brave soul caused a revolution in the mortgage and banking business. Her pro se representation was an embarrassment for the legal profession: she could find no one to represent her despite ubiquitous advertising.  Advertising does not advance access to justice; it does however commoditize good legal representation.

Today there is ample opportunity to find inexpensive do it yourself legal services from sources like Legal Zoom for individuals and businesses. On the other end of the spectrum, there are the very expensive international mega firms serving the interests of individuals and businesses involved in global pursuits. I think the public could be well served by the spectrum of those offerings.  In addition, there is a promise that technology can democratize justice by broadening availability to the masses, and reducing the costs of discovery.  Predictive software is projecting that it can replace human experience and expertise.

For me, a small cog somewhere in the middle of the legal spectrum, I thrive and I think my clients thrive on the personalized services that I offer.  Not merely the task of writing a simple will, a short contract, or splitting out a series of question for discovery,   but in the discussion, education and experience  that accompanies or precedes the task.  

If you are reading this short piece, you and I have a connection.  The connection may be by one degree of separation or perhaps three degrees of separation but the connection is there and rewardingly palpable, at least from my end and hopefully yours.  I am often asked what my specialty of law is.  I like to say that I represent people and businesses that find themselves in an ever-complex world and who need help navigating through that complexity.  It might be a life plan, estate plan, business formation or succession, capitalization methods, mergers and acquisitions, real estate matters, contracts or protection of intellectual property.

Over the years, in addition to the practices of law I have just described,  I have also been deep into charitable works, community service and on occasion Pro Bono representation.  I have done it because it makes me feel good and confirms my role in a community of like interests.  

I think my goal of a 50-year practice is real and rewarding.  It is not quixotic. I like people, I like to provide valued services, and I like being a trusted advisor.  Through these newsletters I have learned much for your feedback, I would be honored if you would continue to provide me with that feedback.

On my community service news, you might be interested to know that in the second year of the land development project I previously wrote about, the real estate developers, after hiring a professional lobbying firm finally prevailed and a wonderful open space will give way to 11 homes with a road that dissects the highline canal trail.  On the one hand, I was deeply saddened by the local political cave in, on the other it invigorated me to continue the participation in preserving community interests.  

Len Goldstein

Attorney at Law

http://lengoldsteinlaw.com/

Should corporations that break laws in a significant manner be allowed to exist?

The recent corporate scandals at Volkswagen and thePeanut Butter Corporation got me thinking about just when it was that corporations got constitutional rights. The answer is that over time, our Supreme Court has incrementally granted Corporations certain Constitutional rights, mostly in controversial political situations. Corporations are creatures of state statues, whose sole purpose is to provide for an association dedicated to making profit. Those statutes grant them certain rights such access to the courts to sue and be sued. Corporate existence is dependent on complying with law and paying fees and taxes. Corporations would not exist but for their statutory creation.

While some complain about corporations paying extraordinary taxes, they are well represented by their influence on regulatory and administrative agencies and lobbying efforts in congress. Shareholders have been told that these expenses are a necessary cost of doing business and a legitimate expense against profits. 

Two recent Supreme Court cases newly granted corporations the right of free speech (Citizens United) and religious rights (Hobby Lobby). There are 8 other cases that in one way or another grant corporations constitutional rights. How do corporations deserve our precious citizen's inalienable rights given that their very existence was granted by a state legislature? 

 

Going back to status for the moment, if corporations are statutorily created creatures subject to law, and if they violate the law in a significant way, should they be allowed to continue in existence? Corporations have not been granted a fifth amendment right against self-incrimination. Corporate Records and testimony by corporate executives should be totally available to prosecutors. In the Volkswagen Case, the facts are not yet out, but it would appear likely that the creation and installation of this software device was not an act of negligence. It was intentional. The Peanut Butter Corporation produced its a food product in plants known to be unsanitary and resulted in death and serious illness to many consumers. Corporations can's go to jail, so why should these two corporations, having committed or alleged to have committed felonious acts be allowed continued existence? Wouldn't the threat of ending a corporation's existence send a message? 

 

Your thoughts?

I look forward to hearing from you. 

 

Sincerely,

 

Len Goldstein
Attorney at Law

Is There A Way? Development Versus Impact

In one of my very first blogs, I talked about the "need to make a difference" as a strong motivator to stay engaged in the practice of law.  In the last blog, I mentioned my local governmental committee work and hinted at the battle between a developer's special interest and protecting the community assets of the Highline Canal trail and open space.  The developer has now presented to both the Parks and Trails Committee and the Planning and Zoning Committee.  One committee has recommended in favor and the other recommended against.

I have taken up the battle against a part of the development that puts a vehicular bridge carrying construction and local traffic in the way of a trail over which 100,000 people per year hike.  There are alternatives but other neighbors object to increased traffic, or the developer objects to the increased costs. I am deeply involved and will continue the good fight.

That being said, it is interesting to compare our local neighborhood fight to what is going on in Washington.  Polarization seems to prevail over compromise. So in our local case, you are either in favor of the development or against it.  One of my neighbors said it well when she said, while she would prefer the open space, she understands the rights of a landowner to develop a piece of land in a way that does not harm others. 

Is there a centrist or compromise position that allows development but minimizes harm?  I tend to be a centrist.  The Centrist position seems to repel many on the hard left or right but I think common sense should prevail over ideological positions.  I tend to think the commonwealth should prevail over special interest.  So... I will continue the good fight that will hopefully result in a solution that benefits all.  What are your thoughts on this topic? I truly am soliciting your feedback on this one so email me and let me know where you stand. 

  

I look forward to hearing from you. 

Sincerely,

Len Goldstein
Attorney at Law

Is incarcertaion the answer to immigration?

I did some follow up research on the immigrant kid issue I discussed in a previous blog.  The Office of Refugee Resettlement recently reported that for fiscal year 2014 68, 541 kids unlawfully entered the US.  It is expected that for fiscal year 2015 74,000 kids will enter.  Kids from Mexico are taken right back across the border.  The highest percentages of kids come from Honduras followed by Guatemala. Most kids ride a train through Mexico called La Bestia.  Neither the Mexican government nor the railroads do anything about it.  When the kids are caught at the border, the average time in a shelter is 45 days.  All kids are scheduled for a deportation hearing; there were no statistics on the average time for a hearing or the percentage of kids that are allowed to stay. There is neither legislation nor administrative action to address this situation.

The pattern of the US Justice Department in collecting fines without admissions of guilt continues.  There are currently several pending settlements over foreclosure and interest rate collusion pending, involving billions in fines.  The DOJ practice on collecting fines without admissions of wrong doing is not a deterrent. I did some research on the problem and the following statistics come from the Pew Center.   In 1980 the prison population in the US was approximately 500,000.  Currently, the population is 2,300,000.  We currently have more inmates than the combined 35 European nations.  The average cost per inmate in $40,000/year.  We now have over 70,000,000 people with criminal records.  There are now 3 pieces of legislation in Congress that looks at this problem, more importantly questions are being addressed that look at the relationship between higher incarceration rates and crime reduction and the relationship between wrongdoing and overregulation.

So getting back to the  question about jail time for breaches of regulatory matters:  I would lean against incarceration except for the most aggravated of economic crimes and in favor of individual civil and criminal liability and corporate and individual loss of license.

On a more personal level, and in the vein of making a difference, I am currently serving on the Greenwood Village Parks and Trails commission.  I had thought it would not be very contentious and I might contribute something that made a difference.  Oh how wrong I was.  Quickly into my term I ran smack into the dilemma of growth versus open space preservation: regulation versus free market.  Stay tuned for results in the next newsletter. Sign up for the latest updates if desired.

Where Has All of the Money Gone?

In the last two months it has been reported that the US Department of Justice, the Colorado Attorney General and the Wyoming Attorney General have settled with banks, foreclosure lawyers, and investment counselors in the amounts of $24B for the US justice Department, $3.4M for the Colorado Attorney General, and $4 million for the Wyoming Attorney General. Where does this money go?

I picked the Justice Department settlements to research because of the staggering sum.  I learned that in all three cases the sums were retained by the Justice department or the state’s attorneys’ generals   The Justice Department’s budget for fiscal year 2014 was $27B.  The Department collected $24B and with a $3B shortfall US Attorney Holder declared victory that the justice department was almost self-sustaining, not that justice was done or that a precedent was established that would deter future bad acts.

Another curiosity is that none of the paying parties, whether they were banks, lawyers or brokers admitted any wrong doing, or that any of them have had their various licenses revoked. They all have the option of staying in the business that had them violate the law.   So all of these fines have now become a “cost of doing business."  That cost of doing business is undoubtedly passed on to the consumer, and a cause to ask the question:  is it really a deterrent?  From a different perspective, is there any justice being done or is it like the photo radar vans yet another revenue generator?  Why have a justice department?  Why not assign the task to the SEC or another regulatory body and let them enforce the law, collect the fines and reduce the 9,000 lawyers currently employed by Justice. 

This ties into my rant on immigration as well.  The allocation of where this collected money goes is entirely within the discretion of the Justice Department.  Within the Justice Department lie our immigration machinery, and our penal system.  How much of that money is being used to enforce our existing immigration laws or improving the immigration process?

In Colorado what has the Attorney General done with the $3.4m collected from the 3 law firms whose abuse of the foreclosure system gave rise to these fines?  More importantly why are these lawyers still practicing law? I suspect photo radar vans are here to stay and fine collecting attorneys general will continue to balance their budgets having lost sight of doing some form of justice.

What are your thoughts?

Should You Serve on a Board of Directors?

I am often asked about serving on Boards of Directors for publicly traded corporations, privately held corporations and non profits.  A board of directors is a body of elected or appointed members who jointly oversee the activities of an organization. Typical duties of a board of directors includes:

1. governing the organization by establishing broad policies and objectives;
2. selecting, appointing, supporting and reviewing the performance of the chief executive;
3. ensuring the availability of adequate financial resources;
4. approving annual budgets;
5. accounting to the stakeholders for the organization’s performance

Participation in a board can be an incredibly rewarding experience, but should never be taken lightly. Understanding the expectations of serving on a board is critical for a mutually beneficial relationship. Below is a list of questions which may help in making that decision.

For Nonprofits (NFP):

1. Do I have a passion for this nonprofit’s cause?
2. Do I understand what is expected of me, especially the fund raising expectations? What is the length of the term? Can I resign midterm?
3. What is an accurate picture of the overall financial and operational health of the NFP?
4. Is there any litigation pending or expected?
5. Is the NFP is good standing with both State and Federal authorities?
6. Does the NFP have satisfactory amounts of D&O insurance, does it advance costs and expenses of litigation and does it fully indemnify its board members?

For either privately held or publicly traded corporations:

1. What are the expectations of the each Board member, and what is the term?
2. For publicly traded corporations on what committees will I serve?
3. Have you examined past tax returns?
4. For publicly traded corporations have you examined past public filings including proxy statements?
5. Have you asked about the relationship between the Board and management?
6. Is there litigation pending or expected?
7. What is the compensation and expense reimbursement policy?
8. Does the Corporation have satisfactory D&O insurance, does it advance costs and expenses of litigation, and does it fully indemnify its board members?

While this list of questions is not all inclusive and each situation demands its own analysis, this is a great starting point to determine if serving on a board is right for you.  Do you have any other questions to recommend?


Len Goldstein, Denver Business Attorney at Law
lengoldsteinlaw.com