Act I, Scene III: Milavetz, Gallop & Milavetz, P. A. v. United States

I am blessed with an artistic family. We are creative, brilliant, and socially awkward because of our unique perspective. Pondering connections between ideas or exploring issues from multiple angles is just the natural process of art making. Growing up, my sister loved drawing and naturally wanted to be a drawer (definition: noun; one who draws). I wanted to be a counter! Thanks to the Milavetz decision, every child wanting to grow up to be a debt relief agency can pursue their dream!

Sonia begins each opinion with a concise roadmap: topic area, issue presented, and decision. Normally, the game is “figure out the issue, the rule, the holding” blah blah blah. Sonia knows that I have limited time on this world. She knows that I want to use this decision for justice, if I’m able. So, she’s given me a cheat sheet. Thanks, buddy!

Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA or Act) to correct perceived abuses of the bankruptcy system. Among the reform measures the Act implemented are a number of provisions that regulate the conduct of “debt relief agenc[ies]”—i.e., professionals who provide bankruptcy assistance to consumer debtors. See 11 U. S. C. §§101(3), (12A). These consolidated cases present the threshold question whether attorneys are debt relief agencies when they provide qualifying services. Because we agree with the Court of Appeals that they are, we must also consider whether the Act’s provisions governing debt relief agencies’ advice to clients, §526(a)(4), and requiring them to make certain disclosures in their advertisements, §§528(a) and (b)(2), violate the First Amendment rights of attorneys. Concluding that the Court of Appeals construed §526(a)(4) too expansively, we reverse its judgment that the provision is unconstitutionally overbroad. Like the Court of Appeals, we uphold §528’s disclosure requirements as applied in these consolidated cases.

Pause!

Without going any further in the opinion, do you know what you’re getting into? Most opinions do not follow this approach. Why? Honestly, I blame Cardozo. Moving on!

At oral arguments, the phrase “in contemplation of bankruptcy” was badmintoned around like some sort of high class dinner party (or at least what I assume might happen at fancy dinner parties). Milavetz basically argued that attorneys were barred from giving any advice that would result in the client incurring any additional debt, even if that advice might be completely ethical in other contexts. There was also concern about having to advertise the bankruptcy firm as providing debt relief agency services (the statute gives specific language to use).

At this point you might be thinking, “are these really the sorts of issues that need to be resolved by the United States Supreme Court?!” I see your exasperation and raise you because the Supremes hear cases that a majority of the justices have chosen to hear. They wanted to decide this issue. Plenty of injustice issues existed in 2010; determining whether or not lawyers are debt relief agencies that need to use specific language in their advertisements was the crucial issue the court decided to tackle.

Later on in the arguments Justice Ginsburg says:

Why don’t we say, well, whatever it means in 707(b), it also means in 5, whatever it is.

Civil Procedure Queen, Lover of Rules, “I Find Technicalities And Have The Glasses to Prove It” Ginsburg can’t keep track of the two codes in the argument? Honestly, this sounds like I’m sitting on the court. However, at least she made an effort. Scalia was in wonderful Scalia form:

Now, it may be a stupid law, but I don’t see why it’s unconstitutional… [s]o it’s a stupid law… [a]nd that’s why it’s a stupid law… where is the prohibition of stupid laws in the Constitution?

However, then something unexpected happens: the gallery erupts in laughter. What am I missing? What’s so funny about the Supremes wasting everyone’s time and failing to protect our rights by prioritizing non-issues like this case? Definitely not hilarious.

Changing the lyrics of “Stupid Hoe” to “Stupid Law” and imagining Nicki roasting Scalia, the Federalist Society, and everyone else using the courts to further injustice? Funny. However, YouTube didn’t have that (yet). So, please enjoy Arty tearing it up with ASL instead.

 

Act I, Scene II: Wood v. Allen

Now this case, for me at least, is terribly confusing, because I thought, reading the cert petition, that the Court granted cert to deal with a legal question that has confused the lower courts, that is, what is the relationship between (d)(2) and (e)(1) of AEDPA? Justice Ginsburg

I agree, Ruth. This case is terribly confusing. First things first, what is “cert” and why does the court grant it? Technically, Justice Ginsburg is using cool, legal shorthand to try and seem hip and relevant to teens (hint: no one is relevant to teens). Cert is short for certiorari. When someone wants the Supremes to review their case, they ask the court. If at least four Supremes want to hear the case, they grant a “petition of certiorari;” even Justice Ginsburg realizes this is a bit stuffy.

Next up: that pesky acronym “AEDPA”: The Antiterrorism and Effective Death Penalty Act (yikes). Thankfully, Justice Sotomayor explains the act “contains two provisions governing federal-court review of state-court factual findings.” Great. It is clear what this case is about from the first sentence of the opinion. That has to be a record.

Under 28 U. S. C. §2254(d)(2), a federal court may not grant a state prisoner’s application for a writ of habeas corpus based on a claim already adjudicated on the merits in state court unless that adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Under §2254(e)(1), “a determination of a factual issue made by a State court shall be presumed to be correct,” and the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”

Habeas corpus is pretty nifty. It is basically the ability for someone in state detention to ask the federal courts to make sure their confinement is legal. Translation: “Can they really hold me here like this? Like for real for real?”

In this case, petitioner, a capital defendant, challenges the key factual finding made by the Alabama state court that denied his application for postconviction relief: that his attorneys’ failure to pursue and present mitigating evidence of his borderline mental retardation was a strategic decision rather than a negligent omission. Petitioner argues that the state court’s finding was unreasonable under §2254(d)(2) and that, in denying his federal habeas petition, the Court of Appeals for the Eleventh Circuit erroneously conflated this standard with that of §2254(e)(1), which petitioner contends is not applicable in cases, such as this one, not involving a separate federal habeas evidentiary hearing.

Woods is basically arguing that he is receiving the death penalty because his legal team chose not to pursue evidence that may have resulted in a lesser sentence. However, Woods also argues that (e)(1) would only apply to habeas cases that involve evidentiary hearings (this means the federal court would actually review new evidence and not just review the record). Evidentiary hearings are uncommon, and “less frequent after AEDPA” according to a 2007 Department of Justice-funded study.

Only 9.5% of the capital cases in the sample included an evidentiary hearing, compared to 19% prior to AEDPA. Although some of the unfinished cases in the sample could yet include evidentiary hearings, the number is unlikely to reach the rate reported prior to AEDPA.

During oral arguments, Justice Roberts said, “the problem is that (d)(2) refers to determination of facts and asks whether it’s unreasonable. (E)(1) talks about facts and has a whole different test, and I guess the difficulty I’ve had is reconciling the two.” That’s two Justices confused, for the record. Justice Breyer asked counsel to give “an example where you’re trying to proceed under (d)(2), and (e)(1) is somehow relevant.” General Maze gives and example and Justice Breyer is having none of it, saying, “No. You just look at them, and you look under (d)(2), and you say this is an unreasonable determination of fact, period. There’s no reason to go into (e)(1). I mean, if it is an unreasonable determination of fact, he wins. And if it isn’t, you win.”

General Maze fires back, “The reason that you go under (e)(1) is because Congress has said that you have to.”

Justice Breyer volleys, “It didn’t say that. What it says in (e)(1) is (e)(1) is talking about in a proceeding instituted by an application by a person in custody, the factual issue is presumed correct. But if you fail to develop — you know, in a proceeding, it’s presumed correct. You’re right it doesn’t say it literally. But I can’t figure out an application for it unless they’re talking about where there is a new hearing. Otherwise there is just no need for it, it is just repetitive and it gets people mixed up, and (d)(2) does all the work.”

During the recorded oral arguments for this case, three Justices clearly stated confusion. Not indecision, not moral ambiguity, pure and simple doctrinal confusion. So, do the Supremes take this opportunity to clarify how these two aspects of the law interact?

We granted certiorari to address the relationship between §§2254(d)(2) and (e)(1). We conclude, however, that the state court’s factual determination was reasonable even under petitioner’s reading of §2254(d)(2), and therefore we need not address that provision’s relationship to §2254(e)(1).

No they do not.

 

Five-Four is one of my favorite podcasts. I look forward to Peter, Rhiannon, and Michael cracking jokes and skulls (parody! parody! parody!) each week. One tiny seed they planted in my brain is about Justice Ginsberg. Maybe she is a complex human being (aka fallible), not a super-powered elder fighting injustice. Maybe Notorious R.B.G, RBG, and On the Basis of Sex have oversimplified her story. (Review: The Danger of a Single Story).

One of the hosts made an off-hand comment (what is an on-hand comment?) about how Justice Sotomayor is probably the strongest writer and most solid in terms of jurisprudence. So, I’ve started a quest. I’m going back in time to listen to oral arguments and read through the opinions authored by Justice Sotomayor in hopes that I can glean some wisdom and improve my writing.

Listen to arguments at Oyez.
Read through opinions at Justia.

Act I, Scene I: Mohawk Industries, Inc. v. Carpenter

Our first stop involves the world’s largest flooring manufacturer, allegations of employing undocumented immigrants, and the disclosure of information protected by attorney-client privilege.

The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.

Listening to oral arguments, I am reminded that improvisation is an essential skill during appeals.

Reading through the opinion, I found a gift. Order from the chaos, structure among the murkiness of Scalia, Alito, or Uncle Umpire himself. This case was unanimous (9-0) and so clearly skipped on the podcast. It is an interesting question: can the world’s largest flooring manufacturer immediately appeal the district court’s decision to compel them to provide Carpenter with information from his meeting with their counsel about his allegations the company was employing undocumented immigrants? In a word: no.

Permitting piecemeal, prejudgment appeals, we have recognized, undermines “efficient judicial administration” and encroaches upon the prerogatives of district court judges, who play a “special role” in managing ongoing litigation. Firestone Tire & Rubber Co. v. Risjord

Ah yes, my old nemesis: judicial efficiency. While deciding the other way may have been disruptive to the judicial system, I think the pandemic offers great insight: the system will not change without major disruptive events.

MI trial courts have made a pretty incredible transition in the last four months. Probably more than in the last two decades. Michigan Chief Justice Bridget Mary McCormack on Legal Talk Network

P.s. What about the alleged employment of undocumented immigrants to lower wages? In 2012, Mohawk settled a class-action suit for $18 million.

This summer, I participated in Passport to Practice. The focus was on competencies outside of legal know-how needed for success in the legal profession. It was great! I felt vindicated (I am selfish, I am wrong). But one major take-away? So. Much. Jargon.

For instance: valuation. What does that even mean? According to Oxford Dictionary, valuation is “an estimation of something’s worth, especially one carried out by a professional appraiser.” Since I’m not a professional appraiser, I’m going to think about valuation as: what do I value and why?

Step 1: Choose Your Big 8. Which values from chart below resonate to you when it comes to your career? Initially, I found myself making arguments for adopting as many of the poor, defenseless values as I could. (Note: not a helpful exercise). My Big 8 are:

  • Accountability;
  • Adventure;
  • Compassion;
  • Diversity;
  • Enjoyment/Fun;
  • Flexibility;
  • Generosity; and
  • Learning.
Advancement Competency Enjoyment/Fun Efficiency Security
Adventure Individuality Loyalty Dignity Influence
Aesthetics Equality Credibility Collaboration Learning
Affiliation Integrity Honesty Stewardship Compassion
Artistic Creativity Service Innovativeness Empathy Friendliness
Diversity Responsibility Teamwork Accomplishment Discipline/Order
Autonomy Accuracy Excellence Courage Generosity
Meaningful
Work
Respect Accountability Wisdom Persistence
Moral
Fulfillment
Dedication Empowerment Security Optimism
Physical
Challenge
Improvement Quality Dependability Flexibility

Step 2: Apply Those Critical Thinking Skills, Work Edition. Why do you work? What defines worthwhile work? How does it related to the individual, others, and society? What does money have to do with work? What do experience, growth, and fulfillment have to do with work?

These questions are basic… and tricky. Why I work? Capitalism means I need resources to obtain Maslow’s staples: food, water, and shelter. I have to work to survive. Oddly, survival is not one of my Big 8. I like to work, too, especially when I get to help someone figure something out. Like when a student and I talked through a math problem. The student needed a different perspective, a translation of the instructions, and someone they felt safe asking for help. Or when I helped someone complete the gauntlet of obtaining their food handling certification (5 hours and $47 dollars later). I work because vulnerable people are being taken advantage of everywhere. It’s just not right and I have the opportunity to try and do something about it.

Step 3: Apply Those Critical Thinking Skills, Life Edition. What is the purpose of life? What is the relationship between individual and others? Where do family, country, and the rest of the world fit in? What is the role of joy, sorrow, justice, injustice, love, peace, and strife in your life?

Step 4: Find the Rub. Where do your views on work and life complement one another? Where do they clash? Does one drive the other (and if so, how)?

I honestly was not expecting such a deep dive. Why aren’t these conversations happening as part of law school? Why is thinking about my life, how my values impact my work, not part of law school?

If you ask Googs, it says a primer is “an elementary textbook that serves as an introduction to a subject of study or is used for teaching children to read.” An introduction. A place to start. Training. It’s easy to feel overwhelmed when there is a lot happening – pandemic, protest, violence, political incompetence. Sometimes it has been a relief to divert my attention to automated document assembly and sometimes it has been just as overwhelming.

Welcome to the world of…

A very poor rendition of a very famous logo.
Tweets flying through majestic digital skies, Quip scales keeping the beast organized, GitHub cat/octopus and Docassemble cat crowding out the forest of Slack chatter.

I may, or may not, have spent an inappropriate amount of time creating a parody logo… out of logos. Why? Because over the past few months, I have been inundated with tools. They are a cluttered mess, just like the abomination above. There has been a distinct absence of primer. Below, I’ve drafted an overview of what the heck each of these things are, how I’ve used them, and what I still don’t understand. Because it’s a lot.

  • Zoom
    • How I’ve Zoomed: video calls, live chat, hand raising, polling, white boards, screen sharing, break-out rooms. It is almost ready to form a committee to solve homelessness.
    • Zoom Success: First Generation Support Group sessions! We’ve been able to continue meeting regularly despite pandemic, relocation, and summer employment. I look forward to seeing everyone each month. We all have no idea what we’re doing and we keep showing up and struggling along. They keep me going!
    • Zooming Questions:
      • Do I currently have end-to-end encryption or not? “We plan to begin early beta of the E2EE feature in July 2020.” So, not yet? Read more on Zoom blog.
      • How do I setup a meeting so that people can add it to their calendars?
      • If private chat messages aren’t viewable to the host, why do my classmates think they are?
      • How did Skype, Hangouts, and all the other virtual conference/webinar platforms whiff so mightily? What happened?
      • Virtual Meeting Etiquette? The Googs returned over 4 million results (versus only 1.4 million for “uranium contaminated groundwater”). People! Prioritize!
Raise the white flag of defeat when it comes to staring at a screen all day.
Zoom Fatigue. Look for it in the DSM-VI.

 

  • Slack
    • How I’ve Slacked: team and group communication, email alternative, access to archive of prior communication, access to network outside of organization roster, managing multiple “workspaces” feels awkward at the user level.
    • Slack Success: I really like having access to the prior communication. Want to catch up on a project? Just read through what Jenny posted last year. Gives helpful context to framing questions, especially when just starting out.
    • Slacking Questions:
      • Why would I ever want to enable notifications? Yuck.
      • Is this an efficient way to communicate or just a different way?
      • Can I have a slimmed down version? Ideally, one feature. A tutorial mode to unlock other features. Otherwise, it’s very much deep end of the pool.
      • How are these communications stored/archived/logged? How are the data used by the company? When am I going to receive targeted adds for Champlain College online?
Beaver drinking Fizze, eating flavored corn chips, and playing a video game console. It is marvelous.
Note: this is not the official branding for the tool. I think they really lost an opportunity. Plus, now I know this beaver also enjoys flavored corn chips.

At this point, I’ve only briefly highlighted two of them. I’m exhausted. I also wrote down Quip, GitHub, Documate, Docassemble, A2J, and Twitter, but this is starting to get cumbersome. I don’t think a blog is the right place for a primer.

Welcome to the Alaska Court System Self-Help Service’s web page. With just one click, anyone can travel back to the internet as it was in the 1990’s (if only it had an animated GIF).

Alaska Court System Self Help Services Webpage

The thing is, they know it isn’t great and they want to change it. But that’s not my project.

Back in 2016, Alaska developed their Justice for All project. It aims to create justice for all Alaskans by building an ecosystem of justice services. My project focuses on automating the debt collection forms, so when I read the report, I paid special attention to those sections.

Close to 99% of the cases involved lawyer representation1.

Great. Why is this a problem?

Almost all the lawyers represented those trying to collect the debts: 92% of the cases had only the debt collectors represented2.

Okay. But, this isn’t necessarily problematic.

Our efforts to positively address the consequences of debt will involve building out the network of resources available to debtors; debtors may be more likely to engage in services in a preventative fashion before the issues result in a debt collection matter, or respond to a debt collection action in court, reducing the likelihood of a default judgment and additional amounts added to the judgment3.

What? Who are these lawyers even collecting debts for?

Most civil cases today are brought by businesses against individuals for money owed. The most recent national data available show that, as the overall volume of cases has declined, business-to-consumer suits, particularly debt collections, mortgage foreclosure, and landlord-tenant disputes, have come to account for more than half of civil dockets4.

Professionals are bringing suit against people without representation on behalf of debt buying companies. The amount of money grows from what is set out in the complaint and may not even actually apply to the person, but default judgment forgoes the need to figure this out. 

Debt collection is out of control. And this isn’t new. If I was swanky enough to afford an HBO subscription, John Oliver could’ve gotten me riled up about this over four years ago:

Hello, Alaska. Welcome to The Now!

Summer Reading: