Sunday, January 25, 2009

Don't Ask, Don't Tell, Don't Worry, Don't Rush Them

I was lucky to get to participate in the UCLA Williams Moot Court Competition as part of a team of three students from University of La Verne, College of Law this year. We just turned in our brief earlier this week and oral arguments are coming in late February.

When I first found out that our school was assigned to write a brief in support of the Navy's position, I thought I was in big trouble. On one hand, writing an argument that is opposite of your own point of view is always a useful intellectual exercise. But how on earth was I going to be able to justify a policy that is so clearly discriminatory?

With everything going on around California Proposition 8, I think this is a really important time to have this discussion. Homosexual equality is almost certainly going to be the major civil rights issue of my lifetime. So participating in an event structured around this topic is really important, but since most people that sign up to participate in this event are sensitive to the importance of equality for homosexuals, how can half of them write a brief in support of discrimination? The answer revealed two important revelations, one about the law and one about issues of equality.

The first thing I realized is that the law is sometimes blind to morality. Just because it's wrong to discriminate against a certain class of people, does NOT mean that a law doing so will be held unconstitutional. The law moves slowly and haltingly. Sometimes it is out in front of public trends and sometimes it lags far behind them, but it does so on its own terms. To assume that because something is "right" or "wrong" has any impact on the legal status of the issue is to miss a greater truth about the law itself. This is probably the biggest lesson I could possibly glean from an experience like this one. Regardless of what type of law I practice I will try to remember to separate my moral judgments from my legal conclusions.

The second thing that I realized is that the "Don't Ask, Don't Tell" policy is really on borrowed time, but not for reasons of law. The courts have shown very little desire to challenge the military on their policy. The concept of military deference has amazing power to stop a constitutional challenge (be it due process, equal protection, or free speech) in its tracks. But the reason that "Don't Ask, Don't Tell" won't survive is because it's a bad policy for the military. At a time when the military is in desperate need of recruits, the policy is discharging large numbers of perfectly capable men and women based solely on their sexual orientation in connection with some conduct or declaration based on it. Apparently the education requirements have been lowered to increase recruitment as well as lowering the standards for a relatively clean criminal record. Eventually some person high up in the chain of command is going to look at this situation and say enough is enough. Every day two forces of greater need for soldiers and greater acceptance of homosexuals is going to move the discussion towards reversing the policy from the inside. Once this happens, there will be no need to challenge it from the outside.

One final tangential thought is that President George W. Bush created a lot of this demand for soldiers by extending the "War on Terror" from Afghanistan to Iraq, which requires a much larger force. Ironic that Bush might have accomplished what Clinton was unable to do, end the ban on homosexuals in the military!

Friday, January 16, 2009

Optomism Magnetism

Yesterday in my first meeting of Appellate Advocacy all students were asked to tell the class why we are in law school and what you want to do with our legal education. I was very thankful that Andrea has been encouraging me to think through this question for other reasons, because I felt somewhat prepared.

I spoke about my background in Software Engineering and my desire to pursue ideas over details. I talked about the natural pull of patent law and my passion for new media. I kept it short, but mentioned that I would someday like to work with the Electronic Freedom Foundation (EFF). This is were I left off in class.

As I was driving home I started thinking about what else I might have said to the class. Another student mentioned her extreme liberalism regarding Constitutional law. I might have described myself as extremely liberal regarding intellectual property law. At this point I generally regard copyright law in the United States as either (a) fundamentally broken or (b) unfortunately outdated. I might have mentioned that the fear of allowing Mickey Mouse to slip into the public domain has created an enormous orphan works problem. I also might have talked about my desire to help little companies fight off big companies with more lawyers than they have employees! I could have pointed out that Appellate Advocacy will be a very important skill if I am lucky enough to practice in the way I would like to. This is because I'll constantly be on the wrong side of the "law". I'll be appealing cases and trying to persuade judges to break from precedent and make "new law". Of course this is, by design, a slow process. The law intentionally moves at a galacial pace. As I pulled onto my street I was fired up to take on the world but also pessimistic about the state of affairs.

I started working on another project, but it hit me pretty suddenly that what I had thought of on the ride home was really only half the story. One of the reasons that I'm interested in Economics is because I do think that the market works. Legally you can hold on to outdated business models and sue copyright infringers until the cows come home, and this will create a lot of friction in the system that somebody needs to stand in court and point out, but ultimately there's a practical downside to suing your own customers. Eventually the market catches up and rewards the good ideas and punishes those that are sitting around trying to get the free lunch. So eventually I see my career moving into advising companies on how to keep their noses clean, prevent the letters from the big companies from coming, and add value to the system. That's really the key to the whole thing. If you keep putting value into the system, even if somebody steals some of the benefit from you, you still have a lot more by having the ability to add value then the other guy. So I'm also a conservative, a true conservative that wants everybody to let the market run it's course.

All these ideas were swirling in my head today as I thought more about the bailout. I really wish one of the candidates had questioned why the bailout was a foregone conclusion. I wish we had a national debate about taking the big hit now to fix the broken parts of our economy (like automakers that are so incredibly topheavy from pension obligations). If Obama is as serious about alternative energy as he claims he could have let the market decide if the US automakers would fail, and their resources be bought up cheap by more economically efficient and environmentally friendly automakers, or if they'd fight their way out of the hole they dug themselves. Ultimately I would have rather given 5% of that money to Tesla and let them run with it. But I digress (more than usual I mean).

And then today I finally read a blog post from a few days ago by Doc Searls commenting on people applying the Cluetrain Manifesto's principles to real scenarios. He talked about how the book was written before distribution, podcasting, and social media were even around to support it. The internet revolution is really in infancy. That's why I want tobe a lawyer, so I can have a say in guiding that progress both in courtrooms and meeting rooms. That's where I want to add value to the system with my ideas and hard work. Now I've just gotta finish law school...