Monthly Archives: September 2012

Someone please explain to me why Sperry v. Florida would exonerate Warren anyway

I had been meaning to write a post about how Sperry v. Florida, 373 U.S. 379 (1963), does not necessarily apply to Elizabeth Warren’s bankruptcy work.  Sperry had been cited by many of Warren’s defenders to say that her work in Massachusetts is completely legitimate, even without a Massachusetts license, since she was practising federal law and federal law trumps state regulations via the Supremacy Clause.

First, Sperry is about a patent agent who was licensed before the USPTO to prosecute patent applications.  Mr. Sperry lived in Florida, was not licensed in any jurisdiction, but called himself a “patent attorney”, advised clients as to patentability, drafted patent applications, and prosecuted patents before the USPTO.  The state of Florida attempted to require Mr. Perry to cease performing any of these functions within its state, on the grounds that the federal permission to call oneself a “patent agent” and do such work only applied in Washington, D.C.

The state of Florida lost that one – the only thing it won was the right to require Mr. Sperry to call himself a “patent agent” as opposed to a “patent attorney,” the former being within the confines of the federal government to determine, the latter being a state designation.

Most of this is because patent law is entirely a federal matter.  There is no such thing as “state patent law”; a state cannot (unlike with trademarks) protect as patented any invention, make determinations of infringement on patented works, or otherwise deal with patentable subject matter.  Ergo, the state of Florida cannot prevent someone who has been licensed by the federal government from dealing with these entirely federal issues.  Supremacy Clause 101.

Elizabeth Warren’s situation is analytically and pragmatically different.

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ObamaCare Cost Update: $5k more per year than predicted, and untold numbers of jobs

Two pieces of ObamaCare news:

(1) Health insurance premiums are up approximately $3,000 per year per family; Obama had promised that he would “bend the cost curve down” and that they would be down about $2,500 per year.

(2) Small businesses rate ObamaCare as their biggest challenge, ahead of foreign competition, energy costs, and regulatory costs.   Two-thirds of small businesses and manufacturers say that ObamaCare will increase their health care costs.  Other assorted bad news is at the link. (Hat tip: Wintery Knight.)

To be entirely childish: Told you so.

All this talk about giving fifty million people more health care and spending less money?  Obvious rubbish.  Of reforming health care to save us all money on our premiums?  Absurd.  “If you like your health insurance, you can keep it”?  Not if your health insurance is an inexpensive catastrophic plan, paired with a HSA, or not if your doctor retires, or if your plan doesn’t include “free” morning after pills.

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Filed under Economics, Employer Mandate, ObamaCare

Oy vey

There aren’t many words – at least, not many that meet Thumper’s Mom’s Rule – to describe the article by Sandra Tsing Loh in The Atlantic.  She describes high-powered women who come home to their house-husbands and, not satisfied that he’s taken care of their babies all day, made marinara sauce from scratch, and done household work, starts screaming at him about a broken light bulb.

James Taranto’s response is perfect:

Well, allow us to inject a male point of view. Suppose you’re the purportedly perfect man–a guy who has the qualities of Messers. X, Y, Z and Q all rolled into one. Why would you want to spend 90 minutes, much less a lifetime, with someone who’d rather scream at you than change a light bulb herself?

As the saying goes, we are becoming the men that our mothers divorced.
(Hat tip: Instapundit.)

This blogger isn’t sure of which world these, er, ladies inhabit, but here on planet Earth, the high-earning spouse does not get to purchase the right to treat his, or her, spouse badly.  Changing the genders of the people involved does not change that basic truth.

Update: contrast with this: “Man Enough to Love a Real Woman.”  Now, perhaps never-married moi shouldn’t be running around opining about standards for a spouse, but I would rather date a Joshua Rogers clone than the male version of Sandra Tsing Loh.

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Is it still the “nanny state” if actual nannies couldn’t get away with it?

New school lunch regulations, passed by Congress in 2010 and championed by Michelle Obama, require schools to restrict the calories in school lunches.

A sedentary girl, age 14, needs about 1,800 calories per day.  Her classmate, an 18-year-old varsity swimmer, may need about 3,200 calories per day.  In order to “combat obesity” amongst the sedentary, you end up starving the active.

It should be obvious that Washington, D.C. cannot figure out which of the 31 million students who eat school lunches need 3,200 calories per day, and which students need about half that. It should be obvious, but the Healthy Hunger-Free Kids Act of 2010 has created hungry kids who are making YouTube videos of their growling stomachs.

So what we have is a law meant to combat obesity and hunger that instead creates hungry kids and makes life as a student athlete harder. After all, who wants to try to go to school for six hours, then run five miles, on a maximum of 850 calories? I’m a vegetarian, but two ounces of meat at lunch? Do you want your gridiron to swoon on the field?

Supporters of the law say that not everyone is a hard-core athlete, but that’s an absolutely mental defence of a one-size-fits all regulation that harms athletes and active young people.  As per this posts’ title, if a nanny or a babysitter did this, the parents would fire her.  Why, then, does the federal government get to do it?

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Liz Warren’s Law License Lark

I’m going to expand on Prof. Jacobson’s excellent work by filling in a few details peculiar to law licensing in Massachusetts.

Thanks, Prof., for saving me the trouble of pointing out the absurdity of the Mass Lawyer’s Weekly article about the whole debacle.  I find it bizarre that they would argue that Liz Warren doesn’t need to be licensed here because she’s a law professor. Michael Frederickson’s argument is that people who falsely claim to be 1/32d Cherokee don’t need to be licensed to practise law in any jurisdiction, ever.  Let’s exonerate her!

The issue is not that Elizabeth Warren filed a few briefs before the Supreme Court or was teaching law here.  The issue is that she gave legal advice to companies (and, perhaps, individuals) while residing in Massachusetts and maintaining a law office here.

Massachusetts Rules Regarding In-House Counsel

An attorney who is not licensed in Massachusetts but wants to work as in-house counsel for a corporation must register with the Board of Bar OverseersMA Supreme Judicial Court Rule 4.02, Section 9 states, in pertinent part:

(a) Any attorney who is admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, and who wishes to engage in the practice of law as in-house counsel in the Commonwealth of Massachusetts shall advise the Board by (i) filing an appropriate annual registration statement that he or she will limit legal practice in Massachusetts to engaging in the practice of law as in-house counsel, and (ii) identifying the organization on whose behalf the legal services are provided. [….]

(b) As used in this section 9, “to engage in the practice of law as in-house counsel” means to provide on behalf of a single organization (including a governmental entity) or its organizational affiliates any legal services that constitute the practice of law.

So even if you argue that Elizabeth Warren was only working on federal matters (fine), had active law license(s) in Texas and/or New Jersey, and was only working as in-house counsel, she still needed to register with the Board of Bar Overseers.

Further explanatory notes are provided here:

You must register under “in-house counsel status” if you work as in-house counsel for a corporation or other organization, are not admitted in Massachusetts, and your principal office is in Massachusetts or you otherwise maintain a systematic and continuous presence in Massachusetts on behalf of the corporation.

Furthermore, attorneys who have been licensed in another jurisdiction for between five and fifty  years, but are registered in Massachusetts, must pay an annual fee of $351.

Notice that this does not talk about the location of the corporation, but of the attorney and the attorney’s office.  Going back to Prof. Jacobson’s excellent work, we see that Elizabeth Warren was here and maintained her office here while working for corporations.

Reciprocity in Massachusetts

Massachusetts gives reciprocity to almost any attorney who has been licensed and active for at least five of the last seven years.  If you have not failed the MA bar exam, have been practising or teaching law for the last five years, are licensed in at least one other jurisdiction, managed to scrape by with at least an 86 on the MPRE, and can cough up $1,015 in fees, you too can be licensed in Massachusetts.

Further, MA has no mandatory CLE requirements, and annual dues are the same as for those who are “registered” but  not licensed in the Commonwealth.

So why would Elizabeth Warren live here for decades and neither register nor apply for admission on motion?  Texas has continuing legal education requirements.  So does New Jersey.  For $1,015, Elizabeth Warren could have gotten licensed in Massachusetts, avoided ever being forced to take a CLE course, and have complied with all of Massachusetts’ requirements regarding representing people and corporations.

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Filed under Law, Miscellanea

Does denying a pregnant woman an epidural count as a “war on women”?

And if so, can we finally admit that socialised medicine might not be the best thing for the distaff half of the population?

In order to save money, Britain’s National Health Service now recommends that women avoid pain relief and Caesareans during delivery.  (Hat tip: Glenn Reynolds.)

We’re often told that the government should run health care because it’s not evil and isn’t out to profit on our sickness.  Nevertheless, governments have budgets, and they also have trillions of dollars of debt.  (Know any insurance companies that are $16 trillion in debt?)  A government is under larger, not smaller, budgetary pressures than your average insurance company.

What really makes me wonder is how much “advanced” medicine, when delivered by a government, seems to resemble something out of the Stone Age.

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“Hey Girl, It’s Mark Steyn”

In a follow-up to yesterday’s post, I offer you this from the Canadian who now inhabits the Live Free or Die state:

On the latter point, after a week and a half of peddling an utterly false narrative of what happened in Libya, the United States government is apparently beginning to discern that there are limits to what even Barack Obama, Hillary Clinton, and Susan Rice can say with a straight face. The official line — that the slaughter of American officials was some sort of improvised movie review that got a little out of hand — is now in the process of modification to something bearing a less patently absurd relationship to what actually happened. That should not make any more forgivable the grotesque damage that the administration has done to the bedrock principle of civilized society: freedom of speech.

Even if this were about a movie, it would not justify the denigration of the First Amendment.  That insane, irrational people may react with violence does not mean that one lacks either the moral or the legal right to speak.  The Brandenburg/Hess test for incitement to violence, i.e. directed towards or likely to incite imminent lawless action, cannot logically be applied to the actions of crazy people; otherwise, we would have a “whoever gets irrational first, wins” legal system, wherein you can shut down speech with which you disagree by threatening violence.  Likewise, it can’t even apply to this situation, wherein people used a movie released months ago to justify a “spontaneous” “‘protest”. That you are morally obligated to kowtow to the frenzy of a mob, rather than tell the  mob to grow up, is madness.  That our government thinks otherwise is ridiculous and dangerous.

Since this is a health care law and policy blog, I’ll wrap it up with this thought: do you really to put these clowns in charge of your health care?

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Filed under: things I could have told you ten days ago

New York Times: Attack on Consulate in Libya was Terrorism,  U.S. says.

Jennifer Rubin: Obama’s embassy cover story dissolves.

Michael Graham: If my teenage son said that, I would have sent him to his room.

I’m going to digress back to my early training as a chemical engineer.  In college, we learned mass balances and energy balances: mass in = mass out, energy in = energy out, and in an adiabatic system, entropy will increase.  You learn to drill down into the component parts and do the math, but you also work back up and make sure that the whole thing makes sense at the end.

Applying that to the attacks in the Middle East:

Input: a film made over the summer and seen by a few hundred people, tops.

Output: two almost simultaneous “protests” on U.S. embassies on 9/11, an ambassador dragged to his death, and insurgents who were armed with rocket-propelled grenades and the like.

You know what is less ridiculous than expecting us to believe that?  “I put some lead and waste water into this factory, and gold, chocolate cakes, and dancing unicorns pop out the other side.”

The only thing that has been accomplished by blaming the film for multiple coordinated acts of terror is that we’ve been treated to ten days of “discussion” over whether or not the First Amendment should continue to exist in its current form.

This is not dissimilar to the nonsense we’ve seen with ObamaCare.  The absurd claim was that we could give health care to another 50 million people by spending less money, and that there wouldn’t be a doctor shortage even though we have a doctor shortage that is only projected to get worse.   Obviously, those claims are now known to be wrong, but they are known to be wrong two years after ObamaCare was passed.

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Wow, I felt that from here

Sean Bielat, Republican nominee for Congress in the MA-4 district, sent the following letter to 31-year-old Joe Kennedy III, who is Sean’s opponent in the general election:

Joe,

Let me start by congratulating you on your recent primary win. You and I have met on a few occasions, and you seem like a good guy, so I want to be clear that this is not intended as a personal attack.

You have said on numerous occasions that you’re not running on your name. There are a number of signs though which indicate that you are in fact running on your name. Most tellingly, you have held almost no events open to the public, done almost no televised interviews, and appeared on no radio shows. I was hoping that you might use debates as a way to introduce yourself to the public for the first time.

I was very disappointed to see your press release today. Apparently, you have deemed that three debates are sufficient. You have insisted that none of the three be a live television or radio debate. You have also insisted that those debates include a third party candidate who qualified for the ballot but has since suspended his campaign. I don’t know how else to read these facts other than to conclude that you are attempting to expose yourself to as little risk as possible and to reduce the amount of time you will have to speak in the debates. All this is extremely disappointing.

I have accepted 16 debate offers to date. While I don’t expect anyone to want that many debates, we wanted to provide maximum flexibility. In 2010, Rep. Barney Frank and I debated or did joint ed-boards 8-10 times. Congressman Frank wasn’t afraid to defend his record, air his views or let voters decide who they agreed with more.

Every election should be about giving voters a choice between two candidates and their respective messages. If you aren’t in fact running on your name, I would hope that you too would want to give voters a chance to compare us and our views, and then make their decisions.

I understand your strategy: build a huge war chest, mobilize Democratic activists, spend a lot on TV and direct mail, and keep your head down and hope that your name is enough to carry you through. That strategy may have a very good chance to succeed, but don’t you think voters deserve a little bit more? If you are a strong candidate and are more than your family name, why not agree to a few TV debates so that you can prove it?

I hope we’ll see more of you publicly soon (and I don’t mean in paid ads).

Thanks,

Sean Bielat

Now, I don’t have anything against 31-year-old red-headed attorneys, for semi-obvious reasons, but do firmly believe that it’s rather ridiculous for an attorney to refuse a live debate.  Sean is a businessman, with experience at iRobot, McKinsey, and start-ups; his opponent is a lawyer with some time in the prosecutor’s office.

A debate, all other things being equal, favours lawyers: our entire training is to think on our feet, defend our positions, poke holes in the other side’s arguments.  We’re trained to be exquisitely well-prepared for any question we may be asked.

When your only qualification for Congress is being an attorney, your only experience as an attorney is in a courtroom, and you refuse live debates, you’ve just admitted that you’re pathetic.  It’s like an actuary refusing to do math.

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The issue isn’t whether or not breastfeeding is “natural” or if college students shouldn’t be shocked by nudity

The issue is whether or not it’s appropriate for a classroom. American University Professor Adrienne Pine, a single mother, said that her daughter was too ill to take to day care, so Prof. Pine took her daughter to the classroom.  Once in class, the daughter began to fuss, so the professor breast-fed while carrying on her lecture.  When controversy erupted, Pine responded that she “didn’t realize the degree to which people are afraid of breasts in this country and in particular, in the workplace.”

Right – the only reason that her students, at least half of whom are female, would object to having a professor interrupt class for breastfeeding is that they are afraid of her tits.  (Alternatively, they are unenlightened souls who fail to understand how natural breastfeeding is.)

Can my eyes roll any more?

That something is “natural” does not mean that you perform it whenever and wherever you would like.  That something is socially acceptable outside of the office (such as men baring their chests at the beach) does not mean that such is acceptable in the office or while teaching.  Moreover, her forty students were paying $50,000 a year to be in that class, and for fifty grand a year, you can expect your professor to give you her attention (and keep her boobs under wraps) for the whole three hours a week that she’s teaching your class.

As Allison Gilbert said, “In reality, working parents always need to have reliable, go-to options when a child gets sick — a friend, a neighbor, a relative — and if you can’t come up with even one alternative, you may want to consider if you’re honoring your end of the bargain when accepting a job.”  Query whether a male professor would come to class dandling a baby in his arms and would start bottle-feeding her during class.  (As many men are the primary caregivers, and many male college professors are married to women with high-powered careers, this is a feasible scenario.)  If the response is “Hell, no, that’s unprofessional,” then women shouldn’t throw a fit when held to the same standards.

(For the record, the whole thing sounds entirely contrived; “Oh, my baby ran a slight fever and no one could have possibly taken her and she had to eat right that very minute and there wasn’t an expressed breast milk anywhere.”  Yeah, right, lady – you were out to shock your students the first day of class.)

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