General

     Yesterday, BBC (British Broadcasting Corporation) reported that a well-known Chinese human right lawyer had been "secretly tried" for the charge of "inciting subversion of state power", and could face up to 15 years in prison. (See here.) That news reminded me of the famous (or infamous) phrase in Shakespeare's Henry VI: "The first thing we do, let's kill all the lawyers." Part II, Act IV, Scene II.

     Granted, the particular scene in Henry VI has little to do with a state's abhorrence against a lawyer representing the underdogs. Actually, Shakespeare intended the phrase as a mockery & satire of lawyers' hunger for control & powers. And, it indeed has become the epitome of all lawyer mockeries.

     Let's not forget, however, that there are lawyers who would stand up for justice, liberty, and fairness. That these lawyers might stand in the way of powers. And that Shakespeare's words depict a human right lawyer's precariousness against state powers just as fittingly as a satire mocking lawyer snobbishness. The BBC story attested to it.

Henry VI, Part II, Act IV, Scene II:

Drum. Enter CADE, DICK THE BUTCHER, SMITH THE WEAVER, and a SAWYER, with infinite numbers

CADE: We John Cade, so term'd of our supposed father-

DICK: [Aside] Or rather, of stealing a cade of herrings.

CADE: For our enemies shall fall before us, inspired with the spirit of putting down
          kings and princes - command silence.

DICK: Silence!

CADE: My father was a Mortimer-

DICK: [Aside] He was an honest man and a good bricklayer.

CADE: My mother a Plantagenet-

DICK: [Aside] I knew her well; she was a midwife.

CADE: My wife descended of the Lacies-

DICK: [Aside] She was, indeed, a pedlar's daughter, and sold many laces.

SMITH: [Aside] But now of late, not able to travel with her furr'd pack, she washes
            bucks here at home.

CADE: Therefore am I of an honourable house.

DICK: [Aside] Ay, by my faith, the field is honourable, and there was he born, under
          a hedge, for his father had never a house but the cage.

CADE: Valiant I am.

SMITH: [Aside] 'A must needs; for beggary is valiant.

CADE: I am able to endure much.

DICK: [Aside] No question of that; for I have seen him whipt three market days
          together.

CADE: I fear neither sword nor fire.

SMITH: [Aside] He need not fear the sword, for his coat is of proof.

DICK: [Aside] But methinks he should stand in fear of fire, being burnt i' th' hand
          for stealing of sheep.

CADE: Be brave, then, for your captain is brave, and vows reformation. There
          shall be in England seven halfpenny loaves sold for a penny; the three-hoop'd
          pot shall have ten hoops; and I will make it felony to drink small beer. All the
          realm shall be in common, and in Cheapside shall my palfrey go to grass. And
          when I am king- as king I will be

ALL: God save your Majesty!

CADE: I thank you, good people- there shall be no money; all shall eat and drink on
          my score, and I will apparel them all in one livery, that they may agree like
          brothers and worship me their lord.

DICK: The first thing we do, let's kill all the lawyers.

CADE: Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an
          innocent lamb should be made parchment? That parchment, being scribbl'd
          o'er, should undo a man? Some say the bee stings; but I say 'tis the bee's
          wax; for I did but seal once to a thing, and I was never mine own man since.
          How now! Who's there?

     The New York Times ran an article yesterday (see here) on a loophole in the New York State election law that has (allegedly) allowed many individuals to bypass the limits on election contributions. The loophole involves Limited Liability Companies (LLC). According to the Times article, in the State of New York, a gubernatorial candidate cannot accept more than $50,100 from an individual, and $5,000 from a corporation. A LLC, however, is considered an individual when it comes to election contribution limits. That means a LLC can contribute $50,100, 10 times over that permitted for a corporation. Moreover, because setting up a LLC is not expensive, many individuals have taken advantaged  of this rule and established LLCs for the sole purpose of election contributions. As an example, the Times article reported that this loophole had allowed some individuals to make 6-figure contribution to Mr. Spitzer, the governor candidate, by using LLCs.

     Interestingly, this rule on LLC contribution is not found in the codes of the New York State Election Law. Instead, it is based on an opinion issued by the State Board of Elections in 1996. (See Opinion #1, 1996 here.) In this opinion, the Board cited a similar opinion issued by the Federal Elections Commission in 1995, which ruled that a LLC should be considered an individual for the purposes of federal election contributions. However, in 1999, the Federal Elections Commission changed the federal rule. As of 1999, a LLC is considered a partnership or corporation in determining contribution limits. (See 11 CFR 110.1(g).)

     The change-of-mind by the FEC certainly has placed some pressure on the NY counterpart. Until the NY Board of Election actually changes the rule, however, expect a long list of campaign contributions by LLCs in Albany.

     On a side note, even though a corporation can contribute only a maximum of $5,000 in NY, a subsidiary is considered a separate entity from its parent corporation. So, if a corporation has 4 independent subsidiaries, the corporation as a whole is allowed to contribute $25,000. (5000 x 5 = 25000) This is another loophole. (See p.13 of this paper published this year by Brennan Center of NYU School of Law.) And, just like the LLC rule, this rule is also not codified, but based on an opinion issued by the Board of Election in 1977. (See Opinion #11, 1977 here.)

     I grew up in Taiwan. There, people commonly talk about 3 words when they have to judge whether someone else's behavior is appropriate. (The image shows the Chinese characters of the 3 words.) These 3 words roughly translate to "law", "reason", and "affection". They represent three standards of judging human behaviors. The order of these three standards is a big deal. In Taiwan, people like to talk about "affection / reason / law", placing affection above and over reason and law. Law, the foundation of the modern day industrial society, is placed last.

     The popular ordering of these 3 words, and the fact that these three standards are singled out and listed in parallel speak volumes about the popular perception in Taiwan of what law is. -- That "law" is antithetical to "reason" and "affection; that law is rigid and cold; inflexible and cruel; tedious and unforgiving. That law is merely a tool by which the more powerful exploit, control, and manipulate the less powerful. That law is simply a convenient tool for the powerful to insure power.

     This popular perception is understandable, considering the monstrous atrocities the government and the connected had committed on the common people in the name of law during historical Taiwan. Therefore, it was a pleasant change of discourse for me when I entered law school and met the "reasonable prudent person".

     In early 19th century of North Carolina, a farmer sued his neighbor farmer for negligently burning down his cottage. The neighbor farmer had stacked some hays on his farm. Those hays somehow caught fire and spread, burning down not only the neighbor farmer's own barn and stables but also the suing farmer's cottage. Should the neighbor farmer pay? Did he do anything wrong? What is the law? The courts in North Carolina held that it depended on what a reasonable prudent person would have done under the circumstances.

     So, after all, "law" and "reason" are not mutually exclusive. The reasonableness requirement is in fact prevalent in US laws. The 4th Amendment of the Constitution protects the citizens against unreasonable searches and seizures by the government.  The Uniform Commercial Code (which is the law in most states governing commercial transactions) provides that a seller can deliver goods to the buyer within a reasonable time, unless the parties agree otherwise. In patent law, if an inventor made an invention before another, but applied for patent later, the earlier inventor cannot get the patent unless he is reasonably diligent in submitting the application.

     Incorporating "reason" into "law" is intuitive and a great idea. One can even argue that all laws should be reasonable. Only reasonable laws foster reasonable behaviors.

     How about "law" and "affection"? "Reasonable affection" in law is good for me!

     We have just celebrated the Chinese New Year for the year of the dog a week ago. This is a good time to talk about something related to China.

     China as a nation has become a world phenomenon in the past decade, because of the surging influence it has commanded in the world economy. No doubt China has lifted itself out of the economic abyss which still mired the nation just about 30~40 years ago. In many non-economical fronts, however, such as civil & political freedom, human rights, government transparency & integrity, fair wealth distribution, environmental protection, or intellectual property protection, China has not impressed this part of the world as admirably as in the economic areas.

     Just like the majority of the world, however, I hope that China will eventually grow into a free, fair, kind, and prosperous society, both economically and non-economically. The question here is: What roll will lawyers play in this growing process in China?

     Several years ago, I did a research on the correlation between the size of legal profession and the degree of economic freedom of a country. The data I used were dated 1987, nearly 20 years ago. So, the results have lost their timeliness. However, I think they did say something about some general relationship that may still be valid today.

     What I found was that (as of 1987) it was possible to achieve high economic freedom with relatively small legal professions. (E.g., Hong Kong, Singapore, & Taiwan.) Moreover, a relatively large number of lawyers did not necessarily mean that the country would have high economic freedom. (E.g., Argentina, Ecuador, Brazil, Egypt, or Syria.)

     I did not have data of the size of China's legal profession in 1987. However, based on the research results I just described, it is possible that China can achieve a high level of economic freedom even if its legal profession is relatively small. "Small", of course, may not necessarily mean "weak". However, it is natural to think that a small legal profession means a weaker legal system. If this is true, I can make the logic jump that China can achieve high level of economic freedom even if its legal system is weak.

     The question, however, is whether China can achieve other non-economical goals, which are critical for it to become a free, fair, and kind country and to sustain its current economic prosperity, without a strong legal system. My guess is no.

     The New York City Transit strike of 2005 has come and gone. The city seemed to have weathered the 3-day saga amazingly well. I guess after 911 and the great blackout of 2003, New Yorkers can no longer be spooked easily. Still, it's not clear how the city would have responded if the strike had lasted longer. On day one of the strike, I didn't go to the office. On day two, my usual 30-minute commute stretched to 2 hours, including a 1-hour trek in the cold. And, that's only one way. I gave up on day three.

     During the strike, a state court judge ruled the strike illegal, violating the state Taylor Law. The Taylor Law was enacted in 1967, after a 12-day Transit strike, beginning on the New Year Day of 1966. (For more info, see here and here.) The law was officially named the Public Employees' Fair Employment Act. To reach the goal of "fair employment", it prohibits public employees from going on strike, and provides instead a 2-step framework to resolve any disputes between a public employer and its unions.

     Under this framework, the law established an agency (Public Employment Relations Board, PERB) to serve as the middleman. If the employer and union cannot reach an agreement, they can request PERB to intervene. PERB would then first appoint a mediator or a panel of mediators to help the two sides. If the mediators fail, PERB can next appoint a fact-finding board to gather facts and make public recommendations. These findings and recommendations will eventually be submitted to the legislature to help it take necessary actions.

     For MTA and its unions, however, the fact-finding board in this 2-step framework is replaced by binding arbitrations. (This change applies not just to MTA employees. It also applies to police officers, firefighters, troopers, and several other sectors.) So, for example, in the case of the recent Transit strike, PERB appointed mediators in the middle of the strike to help MTA and TWU. That was the first step in the 2-step framework under the Taylor Law. It appeared the mediators did help the parties reach an agreement, announced yesterday. If the mediators had failed, however, then PERB would have to appoint an arbitration panel. The arbitration panel would consist of 3 members, one designated by MTA, one by TWU, and the third by both parties. The panel's decision would be final and binding, although the courts could still review it.

     Labor unions, strikes, picket lines, collective bargaining. These images are so vivid in my recollections that they seem to have become inseparable with the nation's image. So, taking the ability to strike from the unions seems so harsh. On the other hand, we are talking about public employers here. The towns, villages, counties, cities, and other state agencies serving the public. We are not talking about private corporations that profit from their employees' labors. (The MTA, I must admit, invokes more of the image of a blood-draining corporation than that of a good-faith public servant!) Large-scale work stoppage in the public sector can indeed wreak havoc to every corner of our daily lives.

     The Taylor Law attempts to balance these opposing concerns by offering to remedy the loss of the ability to strike with the 2-step dispute resolution mechanism. Is it a fair quid pro quo? Roger Toussaint will probably say no. I don't have an answer, yet. Just glad the strike is over.

     Because of a technical mishap, I lost the previous blogs and had to re-post them from my backup copies. The contents are indentical. And, the dates match the dates when I originally posted the blogs, but the times are kind of arbitray, mostly set at 18:00.

     I am calling this blog site "Rebuttable". (The domain name, www.rebuttable.com, is also under my belt.) So, in my first post, some comments on the word and concept are duly called for.

     In simple words, "rebuttable" means "can be challenged or refuted". I asked a friend of mine what she thought about the name. Her first response was that it sounded argumentative. That is a pretty fair statement. To me, however, the word is more than just an entry in the debating glossary. It incorporates the very founding principles of our constitution: separation of power, check and balance, freedom of speech, right against unreasonable searches and seizures, due process, etc. -- In essence, the principle that all individuals in our society will be duly heard. On a more practical level, "zealous advocacy", the guiding post for lawyers, is possible only because our court systems permit the accused party to challenge the accusing party. No rebuttability, no zealous advocacy.

     Zealous advocacy has many known pitfalls. But we have stuck with it (and thus rebuttability) because the alternative would be to silence the voices of the ordinary and to give monopoly of voice to the selected. We have voted no to that proposition.

     Of course, the concept of "rebuttability" extends beyond the administration of justice. It is the backbone of a free market of ideas. "[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market". (J. Holmes, 1919) Markets fail when they are monopolized, when the exchanges are dominated by the powerful. I don't want this market of ideas to fail. Therefore, I'll have to be ready to be rebutted.