April 1st Arrived Early

In its ceaseless quest to evade the law The Pirate Bay announced plans to build drone-based airborne servers–what it called Low Orbit Server Stations (LOSS)–destruction of which the site said would be “a real act of war.” TPB is nothing if not amusing. Flying file-sharing drones is not an inherently crazy idea–well, maybe it is inherently crazy, but the Electronic Countermeasures project has created them. Not the same as what The Huffington Post describes as TPB’s “madcap, potentially tongue-in-cheek, but brilliant scheme,” but on the same continuum. It is brilliant–as marketing, not a workable plan to avoid the law.

I think LOSS really stands for Laughing Our Selves Silly.*

*Or other words that start with S.

Commerce Clause Arguments

The media is filled with articles and reports on this week’s Supreme Court arguments on the Affordable Care Act. This WSJournal article (subscription required) efficiently summarizes the arguments and justices’ questions. Definitions of the relevant economic activity reveal a key distinction between the law’s challengers and supporters–the former focus on the market for health insurance, the latter on the market for health care. The two are obviously connected but the law’s opponents argue that one can be in the market for the latter without being in the market for the former. The media consensus is that the law is in trouble–on CNN Jeffrey Toobin called the Supreme Court session “a train wreck for the Obama administration–and that Justice Kennedy is the key.

ObamaCare at the Supreme Court

Beginning today the Supreme Court is hearing three days of arguments on the constitutionality of the Affordable Care Act. The first issue is whether the Court can even consider the law’s constitutionality now–a legalistic argument that in the words of a lawyer challenging the law is “a kind of practical joke that the court is playing on the public.” The 1867 Anti-Injunction Act requires that a tax can only be challenged after it has been paid. The ACA’s penalty–or is it a tax?–for failing to obtain health insurance does not go into effect until 2014 and would not be payable until federal tax returns are filed in 2015, which could mean the challenge must wait. It’s an argument only a lawyer could love, with the twist as to whether the payment imposed for failure to obtain health insurance is a tax. As the NYTimes explains:

In the health care law, Congress called the required payment a penalty rather than a tax. But the penalty is contained in the Internal Revenue Code, and the health care law says it is to be “assessed and collected in the same manner” as a tax.

Mr. Verrilli, representing the Obama administration, walks a fine line. He has told the court that the administration wants a prompt ruling on the health care law and that the 1867 law should not stand in the way. Yet the administration does not want to damage its ability to rely on the 1867 law in other cases.

There are other complications. Mr. Verrilli’s argument that the penalty is not a tax for purposes of the 1867 law is in potential tension with one he will make on Tuesday, that the mandate was authorized not only by Congress’s power under the commerce clause but also by its power to levy taxes.

Mr. Verrilli argues that the name that Congress gave the payment required for violating the mandate in the health care law — a penalty, not a tax — matters for purposes of the 1867 law but is irrelevant in connection with the constitutional taxing power, where “it is the practical operation of the provision, not its label, that controls.” (emphasis additional)

As I said, it’s an argument only a lawyer could love.

The Right Result

As punishment for its bounty system in which defensive players received cash awards for injuring opposing players the NFL has suspended New Orleans Saints coach Sean Payton for the 2012 season without pay and indefinitely suspended the Saints former defensive coordinator Gregg Williams. I agree with this punishment, although I think Williams–who was closest to the program and admitted that he knew at the time the bounty payments were wrong–should be barred from the NFL for life.

The Bloom is Off the Law School Rose

This NYTimes headline is a grace note to yesterday’s post about being a lawyer: For 2nd Year, a Sharp Drop in Law School Entrance Tests.  The substance:

The Law School Admission Council reported that the LSAT was given 129,925 times in the 2011-12 academic year. That was well off the 155,050 of the year before and far from the peak of 171,514 in the year before that. In all, the number of test takers has fallen by nearly 25 percent in the last two years.

Is that all? As Mona Lisa Vito says in My Cousin Vinny, “No, dere’s more!”:

The decline reflects a spreading view that the legal market in the United States is in terrible shape and will have a hard time absorbing the roughly 45,000 students who are expected to graduate from law school in each of the next three years. And the problem may be deep and systemic.  Many lawyers and law professors have argued in recent years that the legal market will either stagnate or shrink as technology allows more low-end legal work to be handled overseas, and as corporations demand more cost-efficient fee arrangements from their firms.

I am not against becoming a lawyer. I am against becoming a lawyer without serious consideration of one’s prospects for a satisfying legal career.  Evidently others are concluding the same.

If You Post It, They Will Come

This Forbes article’s title sums up its content: What Employers Are Thinking When They Look at Your Facebook Page. It includes a score sheet of “Five Big Qualities” used to rank college students based on information revealed on Facebook. (I hope whoever named it Five Big Qualities does not plan a marketing career): Extroversion, Agreeableness, Conscientiousness, Neurotocism, Openness to Experience. I’m most interested in the view of privacy expressed in a quotation from someone who opposes using Facebook in this way: “In my opinion you have no more business examining my Facebook entries than you would crashing a private cocktail party.” If a simple search allows me to read your Facebook entries then an apter analogy is  ” . . . than you would watching a cocktail party held outside in Central Park in the middle of the afternoon.” People can wring their hands over the appropriateness of winnowing candidates through social media postings, but if it can be found by a simple search, it will be used.