Saturday, November 22, 2003

Lawyers work hard. No matter what people say about us, we put in long hours, nights, weekends, and we often die in the saddle. (That is, at the office.) Maybe this is another reason why we are so widely disliked. Grinds are seldom popular except among other grinds.

Friday, November 21, 2003

OK so I wander off into constitutional law and talk about the right to vote and what is a corporate lawyer doing here anyway? Forgetting the Fifteenth Amendment, among other things, which goes right to the right to vote. But maybe I was not so far off; what was the constitutional rule before 1870?

Friday, November 14, 2003

Beyond the stereotype. Lawyers have a reputation for being sneaky, duplicitous, aggressive, self-centered, greedy. Usually the exception is for one's own lawyer, until that relationship falls apart over a screwed-up deal, and then he or she falls into the stereotype as well.

My experience is that lawyers are this way when their clients want them to be. They are really reflections of the baser, more aggressive side of the client's position. What is interesting: who would want such a job? Millions of us , evidently, and I don't think it is just for the money. It's also because many of us like being someone's champion.

There is really only one kind of lawyer I dread. The deal-killer. They are out there. They are rarely very successful in their careers But they really do kill deals.

Sunday, November 09, 2003

This is the first but probably not the last one about limited liability companies, the entity du choix of the past ten years for private companies. They are more cumbersome and less certain than corporations but their tax attributes make them preferable by far, even over S corporations, in almost all cases.

But they continue in a strange limbo, between corporate law and tax law, and there seems to be a conspiracy to keep them that way. The typical operating agreement is loaded with references to the tax code that only some lawyers and some accountants - not all - will understand. Many of them are innocuous, show-offey provisions that just demonstrate that the thing once went through a tax department. But some can have a real deal inter-member significance, resulting in real allocation of economic consequences, and vesting, or not, substantive decisions in the hands of the manager. How many lawyers are tuned into this?

As a consequence, you now have three choices: spend a thousand bucks or so on a well-done S corp, a few thousand on a bare-bones LLC (if you can find someone to put it together that way), or $10-20,000 to have a carefully thought out LLC that has been reviewed and understood by each of the members and counsel. Actually, when you add up the fees on all sides, it's probably a lot more. And that's out here in the Midwest. What's it cost to set up a well-done private company in New York these days? Fifty grand?

Saturday, November 08, 2003

There must be a few other cranks out there who think Roe v. Wade is terrible law but also think that abortion rights - more or less along the line of the rules in Roe - make sense as a matter of policy.

I guess this kind of purist thinking is politically naive. I suppose the proponents of abortion rights don't care how they get there, they want to protect the rights, and what better protection than a Constitutional right?

I know, it's been on the books for 30-some years, it's settled, let's move on. That is OK for statutes - it made sense for private causes of action under 10b-5, for example - because if the interpretation really outlives the popular will, the legislature can fix it. Constitutions are different. We should always be able to revisit them, particularly when we create unexpressed rights out of whole cloth.

Can we ever create unexpressed rights out of whole cloth? Sure, voting. If there were ever a case for the reference to "the people" in the Tenth Amendment, it'd be with voting. Somehow back in the primordial muck of creating a society we have the people creating a constitution, and they get there through some kind of voting. We could probably reduce these things to Euclidean elements, on the basis of which we talk about everything else. Somebody probably has.

But abortion? Legislatures have always (a) defined murder and (b) regulated the practice of medicine. Why can't they do it here? I can think of no principled reason. Roe doesn't give me one.