Finding Legal Solutions

For dispute resolution and efficient legal procedures

Fair Tax Reform as Solution to Anti-Immigrant Racism

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The prevailing view of illegal immigration repeated voiced in the editorial pages of local newspapers would be regarded as racist hatred by many in this country. A slew of social problems is blamed on those who illegally cross this country’s southern border.

We adore legal immigrants but despise illegal immigrants. To think our sentiments about the moral value of another human being is dictated by the administrative process and rules of the I.N.S., widely regarded as inept and unaccountable, is misguided and capricious. To many, it seems arbitrary and hateful that Americans seem to welcome European immigrants but not Hispanic immigrants.

While race is a factor, I don’t think it’s the primary issue and I am writing this post to share an idea directed at alleviating solving the real and supposed racism caused by a growing Hispanic population in this county, a substantial proportion of which is undocumented.

The problem is not that illegal immigrants aren’t white or that they often don’t speak English. The problem is that illegal immigrants don’t pay income taxes. U.S. businesses can’t legally hire undocumented workers so when they are hired they are paid cash and their earnings are not reported. Some illegal immigrants use forged social security numbers and have taxes withheld, but aren’t bearing the same financial burden as citizens. The Average Joe is reasonably upset at having to follow costly rules that others don’t seem to follow. If playing by the rules cost you a job, ruined your business and prevented you from providing for your family, you would want rule-breakers punished.

Rather than build an impenetrable southern border and hunt down illegal immigrants, I think we should consider fair tax proposals which would tax sales, rather than income, as a means of generating government revenue. All workers would therefore be paid without without withholding taxes and pay taxes when buying something. If white Americans were confident that spanish-speaking workers paid taxes on an equal basis, I think the apparent racial hostility would end. Fair tax reform would also help tax unreported income earned by citizens as tips or in illegal activities. Everyone shops. The enormous amount of intellectual energy devoted to planning business transactions to avoid tax consequences could be redirected to more socially-productive productive activities. The overall tax burden would not be increased or decreased, simply collected in a manner that would eliminate a painful distinctions between legal and illegal immigrants.


Written by centerforlegalsolutions

June 3, 2010 at 1:38 am

Posted in Tax Law, Uncategorized

Book Review: The Death of Common Sense: How Law is Suffocating America

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I recently had the chance to read Philip Howard’s 1996 book The Death of Common Sense: How the Law is Suffocating America. It is a short book, only 213 pages. The writing style is very engaging: the lawyer-author uses a minimum of legalese and masterfully blends news stories, academic research and logical analysis in support of his thesis.

This book makes a compelling argument that government regulates society in an arbitrary and oppressive manner. The author argues that legal principles such as due process and individual rights have been too broadly extended into government activities such as procuring goods and services from contractors and providing public education to children. In these cases, the author argues, modern administrative laws intended to be fair and prevent fraud, actually fail to serve those goals and harm society.

This is not a book about the “litigation explosion” in America. Despite the subtitle, it is not about lawsuits so such as the regulatory process and how the government acts (or fails to act).

I know this book has been generally well received and widely read. I believe its relates significant, important truths about modern government in a compelling manner. I do, however, have two criticisms. First, the book does a poor job citing references. While it contains a bibliography, it does not include footnotes that would allow a reader to verify the author’s claims or do further reading an a particular incident or example. The lack of proper citation greatly undermines the practical utility of the book in support of the cause it suggests. Second, Howard offers few practical solutions to the problem he outlines. He advocates common sense, individual responsibility, and common law but his concluding chapter is vague.

Written by centerforlegalsolutions

May 12, 2010 at 10:22 am

Posted in Uncategorized

On-line Legal Education: Future or Folly?

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The Georgia Supreme Court recently held that a graduate of an on-line law school can’t take the bar exam. See Georgia Supreme Court Blog report. Those applying to take the bar and become attorneys in Georgia must graduate from ABA accredited law schools, or obtain a rare exemption from educational requirements. Would this applicant’s online legal education prepared her for the bar exam and legal practice? We may never know. It raises a significant question: to what extent can (or should) on-line legal education serve as a substitute (or complement) to traditional law school education?

My inclination is to associate “online law degree” with spam mail soliciting me to obtain a online degree from home, possibly in as little as five minutes. I imagine a Canadian web marketer setting up online schools from a kit and shipping diplomas from his apartment. I graduated from a top-five law school and don’t want my J.D. cheapened.

I have no idea about the quality of online courses offered by “Northwestern California University School of Law,” the online school at issue in the recent Georgia Supreme Court decision. I emailed the school for a comment, but received no reply. I have, however, had the opportunity to explore some of the course course made available from other schools and am impressed by the quantity and quality of on-line education materials available.

Already, one can find the lecture content of an entire Ivy-League undergraduate education streaming online. Schools like Stanford, MIT, and Yale make entire undergraduate courses freely available online through YouTube EDU. Obviously, watching Stanford lectures online is not the same as attending Stanford: there is far less accountability and no credit is available, but the course content is nonetheless freely accessible for public education.

Law schools have not made as much course freely available as colleges and universities, but some complete courses are available. For example, one could watch streaming video of every one of USC Law School Professor Tom Lyon’s course on evidence. See Evidence course playlist. The Univ of California at Berkeley Law School also has made a number of complete environmental law courses freely accessible.

In Georgia, attorneys may satisfy some of their continuing education requirements by watching approved education videos. Fellow attorneys who took a Barbri course to prepare for the Georgia Bar Exam will quickly appreciate how helpful good instructional videos can be for learning the law. Interactive, online technologies are used everyday in corporations for training and education with positive results.

It is likely that the entire content of a law school education will be freely accessible online within the next few years. The core of law school education consists of a small set of well-defined classes. The core is largely based on federal law, common law and model codes and therefore fairly uniform across the country. If top-quality freely-accessible lectures were available online and paired with interactive features to monitor student progress, test understanding of the law and grade student work, it could potentially offer superior legal education at little to no cost. The obstacle to education would then become the ability and initiative of the student (and ABA accreditation), rather than the tuition and schedule of law school.

Written by centerforlegalsolutions

March 12, 2010 at 4:41 pm

Posted in Uncategorized

Thoughts on Georgia Foreclosure Crisis

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Anyone who owns a home, is in the market to buy or sell a home, works in real estate or construction, or reads the newspaper knows that Georgia’s real estate market is in the grips of a foreclosure crisis. Foreclosures continued to occur at a record rate.

It seems to me that the Georgia Legislature has taken absolutely no action on the foreclosure crisis. Is Obama supposed to fix everything for us? State revenues aren’t tied to property taxes so I don’t think the legislature really cares, so long as it doesn’t affect its spending.

There has been likewise no response from the dispute resolution community. Other states have acted to required or encourage banks and homeowners to mediate before the bank forecloses on a home. See summary article. I am not aware of any organized effort in Georgia to resolve foreclosures. It’s a sad commentary on our judges, legal and mediation communities.

The banks are at fault for making risky loans, but they are also doing a terrible job mitigating their losses with the homes they put on the market. Check out a bank-owned home for sale. Don’t be surprised if there is garbage in the middle of the living room. It is as if they don’t take even 20 minutes to stage their homes for sale. They won’t call your agent back, even if you want to make an offer. Sure, they don’t want to be in the real estate market, but they are and should use minimal degree of care selling homes to mitigate losses.

Great time to find a bargain, but it’s a shame we’re not doing more to keep people in their homes and neighborhoods together.

Written by centerforlegalsolutions

February 12, 2010 at 4:07 pm

Posted in Uncategorized

Megatrends in the Practice of Law

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A few observations on some of the big picture changes I perceive in the practice of law as of 2010:

1. More Suburban Law Firms and Home Offices.
It’s easier than ever to work productively from home or remote offices. Working and/or living in large cities imposes serious quality of life problems on attorneys, particularly those with families. Big firms enjoy prestige, in part, from impressive downtown offices, but their corporate clients are finding new ways to organize and streamline their labor forces.

2. Self-Educated Clients.
Forms, research papers, training videos, sample court documents abound on the internet. An intelligent, motivated client can quickly learn about many of the legal issues involved in his or her case. Some will learn just enough to be dangerous, like a homeowner who knows enough to cause serious damage to the home plumbing. Other clients will learn enough to handle some aspects of the case, while seeking limited representation, which leads into the next megatrend.

3. Gigs, Not Clients.
A “gig” is a project, not a ongoing job. Limited representation can be expected to grow in popularity. Firms can be expected to rely more on independent contractors, and perhaps out-sourcing, than regular employees.

4. Electronic Case Management.
Continued technological development is a given, but what will it mean? Already, many courts are using electronic filing. Many firms are making increasing use of off-line technologies as litigation support, particularly programs to produce, manage and search documents. We should expect to see computer technologies play a greater role in managing court dockets with computer programs generating notices, calendars and interacting with parties in pre-defined functions to help courts clear dockets. Expect “the code” to take on new meaning.

5. Attorney Dissatisfaction.
It may remain the great white elephant, but the alarming level of attorney dissatisfaction is too much a driver and result of the other megatrends noted here to avoid serious attention from law schools and the legal profession. When you’re young, smart and really think about it, the increasing precarious rewards of practicing law do not justify such frustration and constant antagonism. The constant motivational speeches one hears from judges or senior attorneys about the nobility of the profession simply do not match how most attorneys really feel about their work. It’s a big problem.

6. A Generation Raised by the Courts.
Although courts do settle disputes among individuals and organizations, nearly all civil disputes are settled without trial. Most trials are for the prosecution of criminals. The bulk of appellate court work also is criminal law and procedure. With courts intervening earlier and more extensively in individuals lives via juvenile, drug and family courts, it appears that courts are not simply deciding right and wrong, but rather are filling a care-taking role for a substantial period of some individuals’ lives. Growing academic literature is devoted to the integration of traditional social, welfare services and the court system. It appears to be a sad, but necessary trend in the United States.

Written by centerforlegalsolutions

February 1, 2010 at 7:06 pm

Posted in Uncategorized

Will the GODR Survive in FY2010?

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The 2010 Georgia Legislative Session recently began and those involved in mediation are wondering how the Georgia Office of Dispute Resolution will fare amid state budget cuts.

Georgia legislators are constitutionally required to pass a balanced budget for Fiscal Year 2010. With state tax revenues down approximately 8% from last year, balancing the budget will require legislators to pare over $1 billion dollars from the state budget.

It should be obvious that making budget cuts while relatively high unemployment and a weak economy are increasing demands for state services will require tough choices. Significant funding cuts should be expected in all areas of the state budget, including funding for courts and court-related services. While attorneys, mediators and the State Bar Association, may oppose cutting the budget for courts and the Office of Dispute Resolution, the implication is endorsing disproportionate cuts in education, health care or transportation.

It is helpful to see where state revenue comes from and where it goes. Here is a snapshot of our current state revenue forecast and the allocation of spending proposed by the Governor.

The Governor’s Office recently released its proposed budget for FY 2010. (See proposal, over 400 pages long). The Governor has proposed cutting education funding only 3%, which would require greater cuts to non-education programs. Some line-items can be expected to receive better or worse treatment than the Governor is proposing as Georgia legislatures work to fine tune the Governor’s proposal into an appropriations bills.

The Governor has proposed cutting $25,909 in general funds to the Georgia Office of Dispute Resolution from $196,638 to $170,729, a 13% reduction in funding. The Governor’s proposal reports that the GODR receives $172,890 in other funds (i.e. registration fees).

Significantly, although the GODR is the operating office of the Georgia Supreme Court’s Commission on Dispute Resolution, the Georgia Supreme Court and the GODR are funded separately in the state budget. The GODR is not under the Court’s financial umbrella, making it more vulnerable to budget cuts. Because the GODR charges neutrals registration fees, legislators apparently believe that the office can or should be self-supporting.

The mediation community can expect the GODR budget to be cut more by at least 13% for FY2010. The real question is whether legislators believe the GODR can carry out its laudable mission on severely limited funding or should be cut entirely to devote more funds to traditional, larger state programs. The mediation community is, at best, weakly organized. To my knowledge, there is no lobbyist for ADR.  The GODR’s efforts toward self-sufficiency may result in a loss of funding while less efficient state programs are perceived to need more funding.  The mediation community can expect further loss of GODR services and higher registration fees in 2010 and 2011.

Written by centerforlegalsolutions

January 20, 2010 at 4:10 am

Posted in Uncategorized

Modest Reform Would Greatly Improve Appellate Process

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Here’s an apt slogan for Georgia’s appellate courts: “Hurry up and wait.”

For the most part, litigation follows strict time deadlines. When one party files for appeal, however, outdated Georgia laws impose an unreasonably delay final resolution of the controversy. Georgia law currently requires that the clerk of the court from which an appeal is sought photocopy the entire case file to be sent to the Georgia Court of Appeals. That means that before an appeal is even docketed in the Georgia Court of Appeals, someone from an office like the Fulton County Clerk’s Office must photocopy, each and every single page of pleadings, exhibits, depositions, etc. It can take months, sometimes years, and the parties still must check and supplement the copy to correct errors and omissions.

Do you ever read an appellate court opinion reviewing a 5, 7 or even 10 year old trial and wonder why it took so long for the court to review a relatively straightforward question of law? The requirement to photocopy the record is a major factor; it adds months or years of needless delay to the appellate process.

The Georgia Bar Journal published a compelling article last year proposing a number of solutions to this problem. In this article, Jeff Swart outlined a number of approaches utilized in other states to streamline the appellate process. See complete article. Potential solutions include allowing appeals to proceed on the original (not copied) record as is the case in federal appeals, allowing attorneys to designate less-than-all the record without the peril currently required, utilizing electronic records, or some combination of these methods.

I’ve had the chance to talk about this issue with a number of attorneys, including a current judge on the Georgia Court of Appeals. Everyone agrees the current approach to docketing is problematic and most attorneys have a horror story to share.

The biggest misconception is that a solution would require an expensive and complicated expansion of electronic filing in Georgia’s diverse state trial courts. Electronic filing may play some useful role in streamlining appeals, but the appellate process can be greatly approved without spending a lot of money. Most of the suggestions outlined in Mr. Swart’s article, in fact, do not require any additional government expenditures.

The State Bar of Georgia’s Appellate Law Section has recently formed a subcommittee to look into the issue. Hopefully, that committee will produce a concrete proposal for the Georgia Legislature.

One of the obstacles in making a reform like this is that the harm is very widespread and unpredictable: justice is delayed for plaintiffs and defendants alike, husbands and wives, individuals and companies so there is no one group with a special interest in this. But this political drawback is a primary virtue of making such a reform: it would benefit everyone and does not favor one group over another. Modest reforms to our appellate docketing laws would greatly improve the appellate process and help Georgia maintain a progressive and attractive legal system.

Written by centerforlegalsolutions

January 14, 2010 at 5:51 pm

Posted in Appeals