Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for 2017

Local legal cultures and consumer bankruptcy

“In Memphis, an entrenched legal culture has made bankruptcy a boon for attorneys while miring clients in a cycle of futility.” [Paul Kiel with Hannah Fresques, ProPublica/The Atlantic]

Under federal bankruptcy law, people overwhelmed by debt have a choice: They can either file under Chapter 7, which wipes out debts and, since most filers lack significant assets, allows them to keep what little they have. Or they can choose Chapter 13, which usually requires five years of payments to creditors before any debts are eliminated, but blocks foreclosures and car repossessions as long as debtors can keep up. In most of the country, Chapter 7 is the overwhelming choice. Only in the South, in a band of states stretching from North Carolina to Texas, is Chapter 13 predominant….

Upon filing, debtors are shielded from garnishments and debt collectors. But whereas under Chapter 7 those protections are generally made permanent after a few months, under Chapter 13 they last only as long as payments are made. Most Chapter 13 filers in Memphis don’t last a year, let alone five.

The two options have a different structure of legal fees. While Memphis lawyers typically charge around $1,000 for a Chapter 7, most offer a Chapter 13 for free. “Ultimately, the fees for Chapter 13 filings are higher — upwards of $3,000 — but the payments are stretched over time.” Now, the no-money-down model of Chapter 13 bankruptcy is spreading to Northern states. But there is another point of view as well: “many see Chapter 13 as the more honorable form of bankruptcy because it includes some attempt to repay debts.”

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Liability roundup

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Claire Berlinski on #MeToo

Veteran journalist Claire Berlinski has a contrarian warning regarding the #MeToo momentum on sexual harassment and assault: “Revolutions against real injustice have a tendency, however, to descend into paroxysms of vengeance that descend upon guilty and innocent alike. We’re getting too close.” [The American Interest] Related, Emily Yoffe on the workplace and the Title IX example [Politico]

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Update: Philly council approves shop Plexiglass crackdown

By a 14-3 vote, the Philadelphia city council has approved a bill one of whose objectives is to require “stop and go” convenience stores to take down Plexiglass (“bulletproof”) partitions between cashiers and customers [Max Marin, City and State PA; Nicole Darrah, Fox News] Store owners talk back on the glass ban [Adam Xu, Philadelphia Inquirer; Julie Shaw, Philadelphia Daily News (state legislator plans to file bill to protect workers); my earlier take here and at the New York Post]

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D.C.’s childcare credentialism, cont’d

From Jarrett Dieterle and Shoshana Clara Weissmann of R Street Institute in a comment on a Washington, D.C. government rulemaking (see earlier):

Even in a nation overwhelmed by well-intentioned but misguided occupational licensing laws, the District of Columbia’s childcare degree requirement has achieved particular notoriety. …

Specifically, the requirement that childcare workers obtain an associate degree in early childhood education or childhood studies (or at least an associate degree that includes 24 semester credit hours in these subjects) is problematic for three main reasons:

1. The requirement disproportionately hurts low-income childcare workers and individuals seeking to become childcare providers….

2. The requirement reduces the ability of out-of-state childcare workers to move to the District of Columbia….

3. The requirement will raise the cost of daycare in the District.

A yet more basic problem is that there are large numbers of persons who would make or are making excellent caregivers, some of whom are experienced parents themselves, whose liberty the D.C. law abridges. In addition to abridging their liberty to offer their services, the law also abridges the liberty of families who would like to engage those services.

Note that in order to engage in paid child care in the District, it wouldn’t do to have a bachelor’s degree or for that matter any number of impressive advanced degrees. There would have to be that concentration of specific coursework. The continued survival of the human race is evidence that children can be raised successfully without credentials of that sort being expected of caregivers.

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Labor and employment roundup

  • Spotted in Senate tax bill: what sounds like an excellent proposal to cut off worker-classification lawsuits [Shu-Yi Oei and Diane M. Ring (who take a very different view of the provision) via Caron/TaxProf]
  • Federalist Society convention video on future of federal workplace agencies with Alex Acosta and Nicholas Geale of DoL, Victoria Lipnic of EEOC, Philip Miscimarra of NLRB;
  • “‘Mistake’ in Pennsylvania homecare contract would have helped unions in fight over healthcare workers” [Sean Higgins, Washington Examiner; Cato podcast with David Osborne and Caleb O. Brown]
  • Automatically worth reading, Claudia Goldin on gender pay gap [New York Times]
  • Public sector unions rule in California politics, and pension-spiking is just one of the results [Steven Greenhut] “California Union Bill Looks to Ban Outsourcing Public Services” [same]
  • New report from Dana Berliner, Clark Neily al., “Occupational Licensing Run Wild” [Federalist Society Regulatory Transparency Project]

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Ted Folkman, “Some Thoughts On Consumer Arbitration”

The campaign against consumer arbitration has sought over the years to establish a number of propositions: that the process favors business over consumers, that the arbitrator is in the pocket of the corporate repeat player, that you can’t get discovery in arbitration, that arbitration is unfairly secretive, and so forth. Ted Folkman, who in addition to being a practicing commercial lawyer and longtime blogger is also an arbitrator who serves on the American Arbitration Association’s commercial and consumer panels, has some perspective to offer. [Letters Blogatory]

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Philadelphia may ban bulletproof glass in delis

Today the Philadelphia city council may vote on a bill to ban bulletproof glass at hundreds of small delis. My New York Post take: are they crazy?

“Have you ever been served food at a sit-down restaurant establishment through a solid barrier? That is not acceptable.” There’s an “indignity” to it, she adds, and it happens “only in certain neighborhoods.” Hence : “No more normalization of receiving food or drink through a prison-like solitary confinement window. What message does it send our children? What are we conditioning them for?”

Well, it sends several messages.

One is a moral that echoes down through the ages: Human beings threatened with violence have the right to protect themselves.

Another is that no matter how many of your neighbors may be personally liked and trusted, it takes only a few bad actors for you to live in a rough neighborhood. Acting as if it isn’t — or that police will always arrive in time to stop an assault — is playing pretend.

Predictably, some of the store managers say if their glass comes down they will start carrying guns to defend themselves….

Some sources: Philadelphia Inquirer coverage and editorial; Councilwoman Cindy Bass on Twitter; Joe Trinacria/Philly Mag; local WTXF and more, WPVI; draft ordinance; local commentary by Christopher Norris (sends a “damning message”: “The presence of bulletproof glass in corner stores promotes the dehumanization and distrust of the poor, while centering the privilege of its erector.”)

Note also UCLA law professor Eugene Volokh’s argument that a right of self-defense may be implicit in the U.S. Constitution as an unenumerated right, as it is explicit under many state constitutions.

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