Yeah, what she said (plus a little of what I have to say)

I was trying to set up a post that selectively quotes from Melanie Phillips’ articles explaining the utter insanity behind the Archbishop of Canterbury’s muddled remarks about bringing sharia law into the British legal system — but I couldn’t. Each paragraph is so information-packed and important that (a) I couldn’t pick what to quote and (b) I couldn’t bear to dilute the impact of the articles in their entirety. I therefore urge you to read the articles yourself, which you will find here and here.

I do have a few words to add, though, about parallel private legal systems. We have them here too. Religious Jews have often resolved disputes through rabbis, not civil courts, and more and more people opt for private mediation or arbitration in the hope that those methods will be cheaper than litigation. With the Jewish disputes, it goes without saying that the law applied is Jewish law. (Phillips has a good description of these tribunals in Britain, and they’re much the same here.) As for the mediations or arbitrations, people can choose their law: they can pick the law of the state in which they live, or the state most favorable to the party in the stronger bargaining position. Heck, they could even choose the law of another nation entirely, assuming all parties agree. If the ultimate outcome of the religious tribunal, arbitration or mediation pleases the participants, that’s the end of the matter, and they go away happily, without the American civil litigation system ever being the wiser.

However, if they’re not happy, they do have recourse to the American litigation system. Sometimes the judge will simply tell the disgruntled party that he agreed in advance to the arbitration, the arbitration was conducted appropriately, and that’s the end of the story. Sometimes, though, the complainant will get to have his case heard and, in that case, American law, whether it be federal or state law, applies, as it would to any other similarly situated claimant. Additionally, if someone comes in complaining that the mediation, arbitration or religious tribunal resulted in an outcome that is antithetical to American law (for example, requiring him to sell his daughter into prostitution or to place himself into slavery), the American system will bring the alternative proceedings to a screeching halt. For all that I’m no fan of judges, only those who are mentally disturbed would allow their courts to be used for those purposes.

Rowan Williams muddled proposal, however, does not contemplate a system such as the American one, in which people can circumvent Civil Courts if they so desire (opting, say, for sharia courts), but if they don’t desire, they are bound by British law in British courts. Instead, he truly states a belief that the British courts should apply sharia law. As Melanie Phillips explains:

Dr Williams for some reason abandoned nuance altogether and left no room for doubt about what he was saying. Which was, in short, that although the

sensational reporting of opinion polls

recording large numbers of British Muslims who want to live in the UK under Islamic sharia law

clouds the issue,

the adoption of sharia law in the UK seems

unavoidable

and indeed desirable, since Muslims should not have to choose between

the stark alternatives of cultural loyalty or state loyalty.

So although

nobody in their right mind would want to see in this country the kind of inhumanity that’s sometimes been associated with the practice of the law in some Islamic states,

Muslims should be able to choose to have marital disputes or financial matters dealt with in a sharia court. Such courts should therefore be

incorporated into the British legal system

as a

constructive accommodation

with Islam.

There is no parallel for this in the American system or even in the British system. Both will enforce as judgments private agreements but, as I noted above, they will not do so if the outcome is inconsistent with fundamental principles of American or British jurisprudence. Woe to England if it backs down from its near universal outrage at Williams’ proposal and allows his ideas to become reality, whether actively or by default.

So, go read Melanie Phillips’ article and then say a prayer for England, for she sorely needs it. And if you’re in a reading mood about Williams, read this one too, at American Thinker.

UPDATE: I’ve switched to a new server, so you can feel free to look around here or check out my new site, which not only has the old stuff, but also will move forward into the future with all my new material.

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The scam what am

If you want to witness the interesting spectacle of my going from a fairly mild mannered, motherly lawyer type, to a screaming, foaming-at-the-mouth harridan, mention one acronym:  MCLE.  This stands for Minimum Continuing Legal Education, which I found an inconvenience when I was a big firm attorney and that I find an economic and time burden now that I’m a solo.

Continuing legal education did not used to be a mandatory requirement for practicing law in California.  When I started out as a lawyer, legal organizations and legal publishers would put together seminars and send out fliers in the hopes that lawyers would attend.  Often lawyers did attend because the seminars involved the lawyer’s practice area, and they promised to be interesting or to give the lawyer an edge professionally.  Lawyers took the classes on a strictly as needed basis, so that a lawyer who was just plodding along in a single area, reading the cases as they came out and churning through relatively uninteresting legal cases, might attend one seminar a year.  For example, a litigator might attend an annual half day seminar on new pretrial procedures.  (Or he might just read the new legislation emanating from Sacramento every year, or check the update to his favorite legal treatise, which would spell out all of the new procedural requirements.)

Then, in the late 1980s, the California State Bar suddenly announced that, if lawyers want to keep their licenses, they were required to take 36  hours worth of seminars over a three year period (a requirement since lowered to 25 hours over the same three years).  Not only that, but lawyers couldn’t just take classes in areas that might benefit them as practitioners.  Instead, they also were (and are) required to take several hours of classes in law practice management, legal ethics (which could theoretically help some lawyers out there), substance abuse, and identity politics — oh, sorry, that last should be “Elimination of Bias.”

I had a problem with this whole thing from the get-go, because I like the idea of self motivated self-improvement, not coercive, government mandated improvement (proving that I was a nascent conservative long before I knew it).  I also recognized immediately that the whole thing was a scam.  How?  Because it was set up so that the big firms didn’t have to dig into their pockets to fund their associates and partners for these seminars.  Instead, the big firms could create their own in-house seminars, something that often boils down to some long-winded partner bloviating for an hour about a case, while a captive audience of fellow firm attorneys sucks down caffeine in an often vain effort to stay awake.  Of course, for attorneys without big firm backing, the self-help route was (and is) unavailable.  The only option was (and is) to put your own money on the line for outside MCLE sources.

Now, there are some superb seminars out there.  One wonderful day, I attended Bryan Garner’s incredible legal writing seminar.  But you know what?  I would have been desperate to take that seminar anyway, without the necessity of government coercion.  I learned more in six hours with Bryan Garner than I had in the previous 15 years of practice — including attending other, much cheaper writing seminars.

And oh!, have I attended lots and lots of cheap seminars.  You see, if you don’t have a lot of money to play with, you don’t go to quality seminars of the type that were always offered, even before the mandatory MCLE program — seminars that could actually be useful or, at least, interesting (such as the aforementioned Garner seminar).  Instead, you hunt around for el cheapo seminars, regardless of whether the subject matter is relevant to your practice area.

There was a boom of these el cheapo seminars immediately after MCLE became mandatory, although prices only dropped with the internet.  In pre-internet days, a small firm attorney had to pay $200 to go waste some time listening to someone waffle on for a few hours about the fact that women and minorities are inevitably victims of large firm practice — unless those firms are women or minority owned.  Now, through the miracle of the internet, a lawyer can spend a mere $129 to get all required hours.  But if you think there’s any learning involved, you don’t know how to work the system.  You can read the material, of course, but it’s banal and self-evident.  So, you might be tempted to try a shortcut (not that I ever would, of course).  For example, if you have a large monitor you might, in one screen, open the essay about corporations or substance abuse or some other subject that doesn’t mesh with your practice needs.  In the other window, you could open the 4 question on-line questionnaire.  Then, using word search in the essay, you match the sentence in the essay with the question, and there’s the answer.  It’s theoretically possible to do 5 hours of MCLE in under 20 minutes.

What motivated me to blog about this scam — which has been a burr in my butt for almost two decades — is a segment in Jonah Goldberg’s Liberal Fascism: The Secret History of the American Left, From Mussolini to the Politics of Meaning, about the anti-competitive effects of government regulation of business — and about the fact that businesses, that is, big businesses, are often happily complicit in this regulation since  it benefits them so much:

Consider, for example, the largely bipartisan and entirely well-intentioned Americans with Disabilities Act, or ADA, celebrated everywhere as a triumph of “nice” government.  The law mandated that businesses take a number of measures, large and small, to accommodate customers and employees with various handicaps.  Offices had to be retrofitted to be wheelchair compliant.  Various public signs had to be written in Braille.  Devices to aid the hearing impaired had to be made available.  And so on.  [And on and on as enterprising customers, employees, students and lawyers providing an ever expanding and often quite imaginative list of what constitutes a “handicap.”  They’re rational to do so, too.  If there’s a trough, you’d be a fool not to feed at it.  –Ed.]

Now imagine that you are the CEO of Coca-Cola.  Your chief objection to this law is that it will cost you a lot of money, right?  Well, not really.  If you know that the CEO of Pepsi is going to have to make the same adjustments, there’s really no problem for you.  All you have to do is add a penny — or really a fraction of a penny — to the cost of a can of Coke.  Your customers will carry the freight, just as Pepsi’s customers will.  The increase won’t cost you market share, because your price compared with the competitor’s has stayed pretty much the same.  Your customers probably won’t even notice the price hike.

Now imagine that you own a small, regional soft drink company.  You’ve worked tirelessly toward your dream of one day going eyeball-to-eyeball with Coke or Pepsi.  Proportionally speaking, making your factories and offices handicapped-friendly will cost you vastly more money, not just in terms of infrastructure, but in terms of the bureaucratic legal compliance costs (Coke and Pepsi have enormous legal departments; you don’t).  [And I have several lawyer friends who have made a good living providing ADA advice to innocuous small businesses that suddenly discovered that they needed to make a lawyer part of their budget so as not to run afoul of the feds. -Ed.]   Plans to expand or innovate will have to be delayed because there’s no way you can pass on the costs to your customers.  Or imagine you’re the owner of an even smaller firm hoping to make a play at your regional competitors.  But you have 499 employees, and for the sake of argument, the ADA fully kicks in at 500 employees.  If you hire just one more, you will fall under the ADA.  In other words, hiring just one thirty-thousand-dollar-a-year employee will cost you millions.

The ADA surely has admirable intent and legitimate merits [and maybe MCLE does too, although I always assumed it was due to lobbying by MCLE providers.  –Ed.].   But the very nature of such do-gooding legislation empowers large firms, entwines them with political elites, and serves as a barrier to entry for smaller firms.  Indeed, the penalties and bureaucracy involved in even trying to fire someone can amount to guaranteed lifetime employment.  Smaller firms can’t take the risk of being forced to provide a salary in perpetuity, while big companies understand that they’ve in effect become “too big to fail” because they are de facto arms of the state itself.  (pp. 306-307.)

You can understand why the above language resonated so strongly with me.  I guess the last word on this subject, both vis a vis MCLE and ADA should go to an old saying:  The road to Hell is paved with good intentions.

Another Clinton appointee chisels away at the Patriot Act

I am not conversant with the details of the Patriot Act, nor am I a Constitutional lawyer. I simply find it interesting that, more often than not, when a Federal District Court judge rules something about the Patriot Act unlawful, that judge is a Clinton appointee. The most recent case in point is a decision out of Portland, Oregon, where Ann Aiken, a Clinton appointee, struck down part of the act:

Two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without a showing of probable cause, a federal judge ruled Wednesday.

U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, “now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.”

Portland attorney Brandon Mayfield sought the ruling in a lawsuit against the federal government after he was mistakenly linked by the FBI to the Madrid train bombings that killed 191 people in 2004.

The federal government apologized and settled part of the lawsuit for $2 million after admitting a fingerprint was misread. But as part of the settlement, Mayfield retained the right to challenge parts of the Patriot Act.

Mayfield claimed that secret searches of his house and office under the Foreign Intelligence Surveillance Act violated the Fourth Amendment’s guarantee against unreasonable search and seizure. Aiken agreed with Mayfield, repeatedly criticizing the government.

“For over 200 years, this Nation has adhered to the rule of law — with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised,” she wrote.

Aiken’s ruling may be absolutely correct.  I’m not quarreling with the ruling.  I’m just noticing a pattern.  (See here for another recent example in that same pattern.)

It’s a very small world (if you’re a conservative in the Bay Area)

I just read that a federal judge has temporarily canceled the Patriot Act’s wire tapping provisions. I’m very much not a Constitutional lawyer, so I can’t comment on the validity of this decision at a legal level. Immediately upon reading that story, though, I was pretty willing to bet that Judge Victor Marrero, who operates in the U.S. District Court for the Southern District of New York was a Clinton appointee. I therefore googled “Victory Marrero appointee,” which I thought was a sufficiently broad search to pull up that info.

Guess what I found with the search. Aside from the obvious fact that Marrero is indeed a Clinton appointee, I found another Marin conservative blogger! You see, when Google returned the search results, the very first item on the list was for a website called Marooned in Marin, which comments on the same thing that struck me: it’s somehow not surprising that a Clinton appointee would fairly effortlessly jettison a useful weapon in the war against international terrorism, a war increasingly being strategized without the need for physical locations because of cell phones and the internet.

At least the two of us conservatives in Marin are thinking along the same lines. I feel much less lonely now.  And I’m very flattered because, while I just found Marooned in Marin, s/he had already found and blogrolled me!  Thanks.

Using a regulatory howitzer to kill a fly — and destroying freedom in the process

Don Quixote will correct me if I’m wrong, but I think one of the core things about being a libertarian is that you don’t try to control people’s conduct, but you do step in if they break certain clearly stated rules. Indeed, you don’t need to be a libertarian to have that view. As a capitalist, I don’t want the government controlling the marketplace. I just want it to step in and stop cheats. Heck, forget capitalism. Let’s look at the Bible. I doubt many have missed the fact that, subject to a couple of exceptions (identifying the Lord as your Lord, and requiring believers to honor their parents), the Ten Commandments prohibit several categories of immoral acts, but otherwise give people the great gift of free will when it comes to navigating the moral universe.

That’s the sublime. Here comes the ridiculous. To crack down on illegal recruiting in high school athletics, California has imposed a blanket ban holding that kids who transfer from one school to another are barred for a year from participating in competitive sports:

Morgan Farrer knew she wanted to leave Marin Catholic High School last spring. She says all her friends attend Terra Linda High School and she made the decision to transfer, no matter the consequence.

This summer, Farrer learned what it cost her: no interscholastic athletics for one full school year.

“I wanted to play (softball) there,” Farrer said of Terra Linda. “All my friends are on the team, and they want me to play with them, too.”

Farrer, a junior, is among the casualties of tough new regulations for athletic eligibility of transfer students. The new rules, instituted for every high school in the state by the California Interscholastic Federation, make it harder for high school transfer students to retain varsity eligibility at their new schools.

The federation is attempting to curb transfers in which students move to new schools purely for athletic purposes or because of illegal recruitment from coaches. The federation has jurisdiction only over athletics and no other extracurricular activities – which is why a student would not be punished for transferring to a better art department or theater program, but they would lose a year of athletic eligibility even if the transfer is not athletics-related.

The changes come on the heels of a number of violations by members of the Marin County Athletic League. In May, the Redwood High boys lacrosse team was stripped of its league championship and forced to forfeit all its wins for using two ineligible transfer students. Earlier in the spring, the Tam High boys tennis team forfeited the individual matches of an ineligible player who transferred in.

This is the same insanity that plays out in the zero tolerance world that most recently saw a boy suspended from school for drawing what was either a science fiction style weapon or a wacky house.

These kinds of legislative activities, especially when they concern children, could not be better examples of the dangers of government micro management, the type of management that, in the laziest way possible, eases policing duties for government employees. After all, it’s easier just to bar everyone from an activity than to pay attention to whether the activity is being carried out honestly. Worse, this bureaucratic management approach assumes that all employees are too stupid to make judgment calls, and that all students (and employees) are potential cheats.

This post gives me the opportunity to flog a book written more than a decade ago, but one that is as clearly relevant today as it was when written. It’s called The Death of Common Sense : How Law is Suffocating America and its author, Philip K. Howard, fills its pages with examples of rules, regulations and legislation that regularly aim punitive, mind-numbing sanctions at ordinary citizens, and that stifle innovation. Buy it or get it from the library. You’ll find it opens your eyes tro the world around you.

The post also gives me the opportunity to answer publicly a question that DQ asked me privately: How could I tolerate or find even slightly believable the Dolores Umbridge character in Harry Potter and the Order of the Phoenix? My reply was three tiered, with the last tier tying into this post’s subject. First, I’ve actually known people like Umbridge, who are sugary sweet in their presentation and utterly evil and amoral in their acts. Second, I think Umbridge is the extreme representation of girls generally, since girls are often quite mean but cover it with pinky sweetness.

Third — and here’s the tie-in to this post — I think Umbridge is not merely meant to be a character. I think she is a symbol of the type of overreaching bureaucracy that, by paying lip service to the public good, stifles initiative, imagination, free speech, ordinary morality, and individual judgment. And if you think I’m finding symbolism where there is none, keep in mind that J.K. Rowling is a citizen of Europe, where the “beneficent” EU keeps legislating freedom away, one petty regulation after another.

I’ve created a monster

My son’s Nintendo DS crashed and, as it turned out, he hadn’t saved for quite a while.  He lost several special moves and weapons that he’d gathered since the last save.  I suggested (sympathetically) that he might want to save more often.  His response:  “I’m going to sue Nintendo.”  I may be a lawyer, but I really don’t think he got it from me.  I’m defense to the bone, and hate the idea of suing!

Legalize drugs?

DQ here.  I’ll be dropping in while Bookworm is on vacation.  Danny L. picked up on one of my earlier comments and suggested I make a topic out of my belief that we should legalize drugs.  Good idea.  I’d also legalize gambling, prostitution, and other “victimless” crimes.  I take this stand on principle — what I do in the privacy of my own home, what I put in my body, what two consenting adults do in private (and whether money changes hands), whether I gamble my money away, etc., is none of the government’s (or anybody else’s) business. 

But there are many practical advantages as well.  The prison population would be cut in half, making prisons much more manageable.  A whole drug underculture would be eliminated, since the profits would be drastically reduced and drugs would be available through legitimate sources.  Police resources could be redirected to stopping real crimes.  The government could tax drugs as it does cigarettes, and tax gambling in a way that would make the lottery revenues look like chump change.  Addicts could seek treatment freely, without fear of arrest.  

Best of all, people would be forced to take responsibility for their own actions.  Rather than relying on the government telling them what they can and can’t do, people would have to make their own decisions.  Many will make the wrong decisions, and they will learn from those mistakes.  But all of us will grow up stronger from having to make our own decisions.

So, what do the Bookwormroom readers think?  What would you legalize and why?  What would you continue to prohibit people from doing and why?  How far should government go in regulating our behavior?  Why are conservatives not all libertarians on all social issues?  I look forward to your thoughts and suggestions.