Sunday, February 24, 2013

My Sunday Feeling

Part of rendering competent legal advice is to give the client an unvarnished opinion of the merits of the case. Now, if the case has no merit, based on the facts or the law, the lawyer ought to advise the client of this and refuse to take the case.  However, let's say that the case is a little shaky, but of some technical merit.  The lawyer should so advise and educate that client on the pitfalls of litigation.  Let's go on to say that the client is high-pissed at his potential adversary or that he wants to sue as a matter of principal.  This does happen from time-to-time.  Then the lawyer would say "Fine.  My fee is x per hour and I require x as a retainer."

At this point the client has skin in the game.  He can decide if he wants to fight all the way through to the Papal Courts, compromise or dismiss.  As I used to tell folks all the time, "It's not my case.  It's your case.  I am happy to tell you what I think about your case.  But it IS your case."  A person can be as angry and/or as principled as his or her wallet can stand. Because under these facts, the client has skin in the game.  It's his case.

Hence, my thumbnail definition of "unscrupulous" (which I suppose is as good a handy antonym to the word "principled") is to knowingly embark on conduct that is legally dubious and for which you expect others to pay for its defense.

By that working definition, the Republican majority in the Arkansas State Legislature is unscrupulous.  They are also wastrels.

It passed two bills regarding abortion.  One bill restricts abortion after 20 weeks.  The other after 12.  Now, regardless of your personal opinion or religious persuasion, the fact of the matter is that the 12 week bill is patently and utterly unconstitutional under years of case law. The 20 week bill at least has at least one lower court case to recommend it but is otherwise suspect.  The sponsors of these bills have been so advised.  Further, the weight of the medical testimony was that these issues were more complicated than the legislation comprehends and that these decisions are best left to a woman and her doctor.

No matter.  These men, and they are mostly men, took no heed of such sensible advice and passed the legislation evidently hoping,  despite the weight of the case law against their position, to thread the needle somewhere and to find a court to rule in their favor.  Or even better, in the ultimate fantasy, revisit Roe vs. Wade.

And they will defend it to the hilt, dear taxpayer, on our nickle.  They have no skin in the game.  They are unscrupulous.  Even if we assume that their constituents approve of these bills, as well they may, how many of these folks approve of the wholesale waste of taxpayer money in the defense of draconian and legally indefensible legislation?  And even if their constituents approve shouldn't cooler heads prevail?  Are there no other issues than this?

Well, of course there are.  One bill got introduced that would prohibit the Feds from enforcing gun laws in the State of Arkansas on account of the notion that it would violate the 2nd Amendment rights of Arkansans.  First of all there is no Court anywhere that has said that the 2nd Amendment prohibits the regulation of guns.  Zero.  Zip.  But this aspect of the legislation is not unconstitutional.  It is merely stupid.  What makes it unconstitutional is that it violates the Supremacy Clause of the Constitution.

The gentleman that introduced this foolishness somehow passed the Bar exam.  When confronted with legitimate worries about the expenditure of tax dollars defending such patently frivolous legislation he manned up and offered to defend the State on a pro bono basis.  Two problems with this offer.  One, he ain't the Attorney General of Arkansas and Two, who would testify on behalf of his bill if he was the lawyer?

I sometimes think that the folks that come up with this nutbar stuff are not so much complete fools although some of them surely are.  I think some of them don't believe any of this.  But when-not if-their laws are struck down, then they can tell their constituents that at least they tried to uphold "family values" only to be thwarted by an "activist judge."  And the folks back home will believe it.

The old saying is that "men go mad in packs."

And that's a lot easier to do when you don't have skin in the game.

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