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Steven, "tweaked" is my word. The word Gruber used was "tortured." Specifically, the Washington Post noted that Gruber's model was "the coin of the realm" because it could predict what the CBO would have to declare: "The model, the Gruber Microsimulation Model, is the coin of the realm, in large part because it is similar to the model used by the Congressional Budget Office. That means administration policy-makers could predict with reasonable certainty how CBO would score legislation. Given that legislation in Washington often falls or rises depending on the CBO score, that made this model a very powerful tool for administration officials." Gruber himself then said that the text of the Act was tortured to accomplish that CBO result: "This bill was written in a tortured way to make sure CBO did not score the mandate as taxes. If CBO scored the mandate as taxes, the bill dies. Okay, so it’s written to do that." As for "substantive realities," Gruber himself explained, as recounted in this CNN article on the 6th Gruber video to surface (emphasis added): "'It turns out politically it's really hard to get rid of,' Gruber said. 'And the only way we could get rid of it was first by **mislabeling** it, calling it a tax on insurance plans rather than a tax on people when we all know it's a tax on people who hold those insurance plans.'" "(The White House press secretary said at a press briefing in 2010: "I would disagree with your notion that it is a tax on an individual since the proposal is written as a tax on an insurance company that offers a plan.")" "The second way was have the tax kick in "late, starting in 2018. But by starting it late, we were able to tie the cap for Cadillac Tax to CPI, not medical inflation," Gruber said. CPI is the consumer price index, which is lower than medical inflation." "Gruber explains that by drafting the bill this way, they were able to pass something that would initially only impact some employer plans though it would eventually hit almost every employer plan. And by that time, those who object to the tax will be obligated to figure out how to come up with the money that repealing the tax will take from the treasury, or risk significantly adding to the national debt." "'What that means is the tax that starts out hitting only 8% of the insurance plans essentially amounts over the next 20 years essentially getting rid of the exclusion for employer sponsored plans,' Gruber said. 'This was the only political way we were ever going to take on one of the worst public policies in America.'" "Unions and employers who object in 2018, he noted, 'at that point if they want to get rid of it they're going to have to fill a trillion dollar hole in the deficit...It's on the books now.'" [end of CNN text] So for me the question still stands quite clearly: should we be pragmatically ok with "mislabeling" and with "torturing" to provoke a CBO score?
George, if they're using that system, or any system other than random, they need to be absolutely clear about it. Otherwise, there's bound to some loss of public trust.
Thanks, everyone, for the comments. I understood the WSJ article to be focusing on a decline in MBE scores, which would seem to follow naturally from declines in LSAT scores. I'm not sure, Milan, why a shift from doctrinal courses would lead to lower scores on multiple choice tests and I wonder if the LSAT score drops are all that's needed to explain MBE drops.
Richard, has there been any change in views from the George court to this one?
Thanks, Steve and Rick, for that cite and those insights. Fwiw, here's a portion of the Wiki entry for Bronston, discussing United States v. DeZarn, 157 F.3d 1042 (6th Cir. 1998) and United States v. Robbins, 997 F.2d 390, 395 (8th Cir 1993). But I like Steve's description better and I will look up Rick's article. Conflicting appellate cases As with other Supreme Court cases, those who have disagreed with Bronston have looked for test cases that might give another set of Supreme Court justices a chance to revisit the original ruling and, if not overrule it, at least limit its scope. Two such cases that reached the federal appeals courts gave rise to such hopes (or fears) with regard to Bronston, but neither made it past that level. United States v. Robbins Like Bronston, this 1988 case arose from a bankruptcy proceeding. Robbins was testifying about a company he had formed called MacArthur and 11th Properties. His questioner mistakenly asked about "11th and Meridian". He answered that that name was unfamiliar to him but he knew of an "11th and MacArthur". Both those answers were true but as a result the line of questioning about the real company was dropped. The Eighth Circuit upheld his conviction five years later on the grounds that "[a]bsent fundamental ambiguity or impreciseness in the questioning, the meaning and truthfulness of the declarant's answer is for the jury."[22] The Supreme Court declined to hear the case.[23] Legal commentator Barry Tarlow distinguishes the case from Bronston, however, by noting that in this case the defendant had more actively misled the questioner, by volunteering a different yet equally erroneous version of the company name.[24] United States v. DeZarn Later in the 1990s came the DeZarn case. It began with an investigation into possible Hatch Act violations by officers of the Kentucky National Guard. Key to the case was a 1990 Preakness Day party attended by Robert DeZarn, later made adjutant general by Brereton Jones after the latter was elected governor. DeZarn was being questioned about that party by Col. Robert Tripp of the Army Inspector General's office, under oath, when he was mistakenly asked about a 1991 party, which was not at issue. He testified truthfully about it. As a result the investigators issued a report that the allegations were unsubstantiated. After the report, another Guard officer came to Tripp and his colleagues with new information which did substantiate some of the allegations, and revealed to them DeZarn's role in the 1990 party. He was indicted on a perjury charge in 1996. His attorneys unsuccessfully sought to have the indictment dismissed on the grounds that his answers were literally truthful. The district court refused to do so since other witnesses had answered questions about the 1991 party with reference to the 1990 one, and that DeZarn's other answers had shown he knew which party was at issue. He repeated this defense at trial, while prosecutors introduced Louisville Courier-Journal articles showing that he knew very well which party investigators were concerned about. In September he was convicted, and sentenced to 15 months in prison. After his motion for a directed verdict failed, he filed an appeal. In 1998, a Sixth Circuit panel upheld the conviction (as well as his sentence, which he had argued was improperly enhanced). Gerald Rosen, Chief Judge for the United States District Court for the Eastern District of Michigan, sitting by designation, distinguished DeZarn's answer from the one at issue in Bronston', by noting that DeZarn was not only aware of the party at issue, but unlike Bronston, DeZarn's answer was "unequivocal and directly and fully responsive".[25] Rosen also pointed to subsequent answers which only made sense if DeZarn was referring to the 1991 party. DeZarn had also attempted to argue Robbins wasn't relevant, since in that case the defendant had introduced the mistake, but Judge Rosen noted that fact played no role in the verdict there. The case was never appealed beyond the Sixth Circuit. Commentators have either hailed Dezarn as "nudg[ing] federal criminal law closer to everyday morality"[13] or decrying it as requiring witnesses to guess what a questioner really means. "The DeZarn decision appears to place the witness at risk — if he or she subjectively misinterprets the state of mind of the interrogator and gives a literally true answer", wrote Barry Tarlow. "This expansion of the traditional definition of perjury is both unwise and unnecessary."[24]
Thanks, Monroe. Subsequent to Bronston, there was a perjury case decided at the COA level where a clever and non-responsive answer was held to be perjury. As I recall, the case had something to do with a party at the Kentucky Derby. Does anyone remember that one?
David, that's an interesting thought. Suppose a corporation had a crack staff of lawyers. Could it become a revenue center if, for example, it did legal work for start-ups that couldn't afford an internal legal staff but did need legal help.
Toggle Commented Sep 19, 2014 on In-sourcing continues apace at Legal Ethics Forum
Dirks has done a do-over. Here's his corrective letter. Nicholas Dirks Chancellor Sep 12 (3 days ago) to Faculty; Every fall for the last many years, we have issued statements concerning the virtue of civility on campus. This principle is one of several that Berkeley staff, students, faculty, and alumni themselves developed and today regard as “fundamental to our mission of teaching, research and public service.” To quote further from our “principles of community”: “We are committed to ensuring freedom of expression and dialogue that elicits the full spectrum of views held by our varied communities. We respect the differences as well as the commonalities that bring us together and call for civility and respect in our personal interactions.” For a full list of these stated principles, please see http://berkeley.edu/about/principles.shtml. In this year’s email, I extended this notion of civility to another crucial element of Berkeley’s identity, namely our unflinching commitment to free speech — a principle this campus will spend much of this fall celebrating in commemoration of the 50th anniversary of the Free Speech Movement. My message was intended to re-affirm values that have for years been understood as foundational to this campus community. As I also noted in my message, these values can exist in tension with each other, and there are continuing and serious debates about fundamental issues related to them. In invoking my hope that commitments to civility and to freedom of speech can complement each other, I did not mean to suggest any constraint on freedom of speech, nor did I mean to compromise in any way our commitment to academic freedom, as defined both by this campus and the American Association of University Professors. (For the AAUP’s Statement of Principles on Academic Freedom and Tenure, please see http://www.aaup.org/issues/academic-freedom.) I did, however, express my conviction that in the ongoing debates on campus about these and other issues we might collectively see the value of real engagement on divisive issues across different perspectives and opinions. By “real engagement” I mean openness to, and respect for, the different viewpoints that make up our campus community. I remain hopeful that our debates will be both productive and robust not only to further mutual understanding but also for the sake of our overriding intellectual mission. Sincerely, Nicholas B. Dirks Chancellor If you are a manager who supervises Cal employees without email access, please circulate this information to all.
Toggle Commented Sep 15, 2014 on Free speech at Berkeley? at Legal Ethics Forum
Thanks, Richard. I'm now getting two a day.
Just a technical question. I know that some states have slightly different variations on what counts as a confidence, but once you've represented a criminal defendant and he has not publicly admitted guilt, isn't your conclusion that he was guilty almost necessarily based upon client confidences? It has to be based upon information related to the representation, right? And isn't it a breach of the duty of loyalty to publicly declare your former client guilty? I don't have a partisan dog in the fight here. From a legal ethics perspective, I was just disappointed in what she said and in the almost irreverent tone she took in the interview. (I recall my Dad saying about one of his criminal defendant clients (against whom the evidence was rather strong), "my client has always asserted his actual innocence" and leaving it at that.)
Michele, your last sentence reminded me of an exam question I drafted many years ago, but which seems fresh given the GM situation: 2.4: In-House Corporate Lawyer (Prior Exam Question) You are General Counsel at The Parts Supply, an automotive and trucking parts company. You often meet with Mike Morris, the Midwest Regional Vice President, who in addition to running legal issues by you, chats with you about everything from the weather, the local schools, and Hoosier basketball. In June 2002, Morris walked into your office, slumped down in a chair and nervously lit up a cigarette—a habit you’d thought he’d kicked. He asked if taking a government purchaser out on hunting trips would be considered commercial bribery. You said that anything of value can be a bribe. He asked about the jail time a briber might serve. You told him that bribery can result in five years in prison. He asked if it mattered that he began his hunting trips with the purchaser when they were in high school together. You told Morris you couldn’t give good advice if he dripped out the facts one by one. You asked Morris to trust you with the whole story. Here’s what he said. “Jason Spencer, my old high school buddy, works for the City and County of St. Louis purchasing car and truck parts for the various municipal fleets. I took Spencer on several hunting trips over the past year. My treat. Spencer never paid. Sometimes we just drove out to the country, but sometimes we’d stay at upscale hunting or fishing lodges. “Back in May, Spencer signed a policy allowing the County to purchase parts that aren’t certified by the National Automotive Parts Laboratory. NAPL is a national testing agency, and most everyone requires NAPL certified parts. Spencer also signed a technical specification permitting County trucks to be outfitted with smaller, less powerful brake assemblies. I had lobbied Spencer for both changes, because The Parts Supply carries the non-certified, smaller brake assemblies. They are cheaper for the County, and we are glad to sell them. Spencer and I briefly discussed the changes during one of our hunting trips." “In late May, the County published a Request For Bids on a large contract for a variety of parts, including quite a few brake assemblies. Because prices on the other parts are largely uniform, The Parts Supply used its price advantage with the non-certified parts to make a great bid. We won the Request. We already shipped some parts, and will make additional deliveries over the next two years." “Just before the final bids were submitted, the manufacturer of the brake assemblies called about some safety concerns. Ten brake failures have been reported nationwide. He said that no recall was currently contemplated because it seemed that the assemblies had failed only when they were installed on trucks that were too large for the parts. He wanted me to report any potential problems." “Well, bad things are happening. A County truck plowed through a storefront last week. We don’t yet know what caused the accident, but I think his truck had the small brake assembly. I just heard one hour ago that another County truck crashed at the bottom of a downgrade. I don’t want to call Spencer or the manufacturer and highlight the problem." “Yesterday, I saw one of my competitors at a hunting goods store. He asked me, ‘Hey, Morris, are you buying more goodies for your pal, Spencer?’ That’s why I’m talking to you. Look, Spencer’s cost-saving policies are perfectly justified. But if people find out about what’s happened, everyone will think the worst and I’m going to jail for five years—or worse--if people are killed.” You told Morris that you need to begin a thorough investigation and that you need to talk to others at the company. Morris screamed at you. He said that you can’t tell anyone about the facts. He said that you are his attorney, and that he is trusting you. *** How does the law governing lawyers affect your behavior in this situation? ***
Monroe, I will continue my speculations by suggesting that if we there is a conflict of the type you suggest, an informed client like GM could choose K&S nonetheless and K&S could choose to do the assignment.
Liz, I assume that the contents are relatively safe, but I was told by a criminal defense specialist that the government scans the face of all hard mail. Can anyone confirm that?
Patrick, there is an ABA rule that is often referred to as a "superior orders" rule. You can find it here: http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_2_responsibilities_of_a_subordinate_lawyer.html
Monroe & Patrick, my attempt to get an accurate description isn't a normative endorsement of overcharging, which I condemn. Btw, a white collar defendant is trying to release to the public the PowerPoint slides the DOJ used when coercing him to settle. Supposedly the slides will starkly illustrate how over-charging works. If the slides are released, I will try to post them here. http://abovethelaw.com/2014/01/unsealing-the-trial-penalty/
Ben, I have the same skepticism as you, but to interpret the court's action most charitably, they might have felt that the employee lawyer was standing in the shoes of the disciplining court and hence the sarcastic tweets impugned the court's legitimacy.
Just as an aside to Doug's statement of the general rule, out here in California, the fee agreement itself can be privileged. Our Business & Professions code provides, "6149. A written fee contract shall be deemed to be a confidential communication within the meaning of subdivision (e) of Section 6068 and of Section 952 of the Evidence Code." Section 952 is our attorney client privilege law. I don't know why California took that approach. Does anyone out there know?
Laurel, do you mind if I elevate your query to a post?
Patrick, I think I'll add one more thought. PR is one of the very few courses that's mandatory at every law school. Yet I've seen lots of lists like Posner's that don't include PR at all. I get the feeling that in certain quarters PR doesn't count as a real course. That's the reason I made this post.
That's a powerful argument against requiring 3Ls to take that sixth semester of law school. (And against the fifth semester, for that matter.)