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Messages - Burning Sands, Esq.

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11
Black Law Student Discussion Board / Re: Black Law Student Discussion Board
« on: February 15, 2011, 06:14:34 PM »
Good points.



Earl Cat, Burning Sands

Non URM here, but I can show the LOVE for the BLSD!

I think the problem you are seeing (not just on BLSD, but on the entire site) may relate to a sense of generalized anxiety in terms of the legal field's saturation and the economy.  You know, those tacit "Will I measure up?" type questions.

Also, there are not enough cheerleaders, like Thane Messinger, posting.  There are plenty of anal sphincters, naysayers, and general twits.  Any meaningful discussion goes two ways.  Oftentimes, when a sincere question is asked by a relative newbie (especially 0Ls), they are lambasted.

That doesn't exactly spread the love.  Just my .02

12
General Off-Topic Board / Re: Engineer looking into Law
« on: February 15, 2011, 06:07:43 PM »
Hello Law Schoool Discussion Board,

I'm a mechanical engineer in my late 20's whose lost admiration for the once proud proffession.  There are many reasons why I'm choosing to walk away from the field, the primary reason being my lacklustre compensation I've been recieiving for the past couple years.

I've been pondering Law School for the past few months and have some questions.

1) Aside from the court room, what other jobs can a lawyer score?
2) I have a background in project managment as well as business managment, can a law degree help me bolster these two career paths?
3) How competative is the education, I'm fairly confident I can get into law school, but what is a typical minimum GPA?  I'm sure I can surpass it, but I want to get an idea of how many late nights in the study hall I'm going to endure.
4) If I'm not going to work in the legal system, is a law degree transferable to other countries?

Thanks!

I can relate.  I was in your exact same shoes a few years ago.  I graduated Arch Engr., worked for an engineering firm for a while, got tired of the insulting cost-of-living increases they kept trying to pass off as "raises" and figured since I had always had a genuine interest in the law why not go to law school right?

Before you run out and register for the LSAT you should be aware of a few things:

#1. The economy SUCKS for lawyers right now.  This may change by the time you graduate if you happen to go to law school right now, but caveat emptor.

#2. Everybody will automatically tell you that you should do Patent Law because you are an engineer.  It is true that only engineers and other select degrees (Chem., Bio, Comp. Sci, etc.) actually qualify to sit for the patent bar, so from that standpoint it seems like the thing to do if you happen to have one of those backgrounds.  2 quick points on patent law:
(i) a common misconception is that you must take the patent bar in order to do "patent law."  Not exactly true.  "Patent law" comes in two flavors: Patent Litigation and Patent Prosecution.  ANY LAWYER can do Patent Litigation.  Largely b/ c litigation (drafting briefs; arguing in court) is litigation, no matter what the subject matter is.  Patent Prosecution, on the other hand, does require the Patent Bar.  Prosecution is the transactional half of Patent law where you actually take the patent and file it in the USPTO in DC.
(ii) somebody told me this when I was in your shoes but I considered them a Debbie Downer so I didn't listen to them, but as it turns out, they weren't far off the mark: patent prosecution is boooooooooooooor-ing!  And I'm an engineer saying this.  The litigation side is always exciting b/c litigation tends to keep you on your toes.  The transactional side, however, not so much.  You basically are drafting patent applications all day long which is basically like drafting C++ computer code. 

But of course, if you're interested, you should look into it for yourself.  The point of me telling you all of this is so that you don't feel that you have to take the patent bar in order to do patent law b/c you don't.

To answer your questions:

1) we've touched on this briefly, but law firms are divided into two halves, the litigation side and the transactional side.  The litigation people are the ones who go to court.  The transactional people never go to court.  Instead they do the paperwork side of business deals, mergers & acquisitions, real estate deals, etc.  Also outside of the courtroom, lawyers can become in-house corporate counsel to big companies.  Or you can take your JD and never practice law at all and instead go into business.

2) Yes.

3) How competitive is legal education?  COMPETITIVE!!! It's probably one of the most competitive academic environments out there.  Let me put it like this, everybody else in your class will be smart so being smart is not enough - you have to beat the curve.  And the curve in law school (for most schools which give grades) is a beast.  You could literally give an excellent analysis of 90% of the issues on a law school exam and still get a "B" b/c of the curve.   What also makes it so competitive is that law school is not like other schools where you can just go and graduate and be ok.  You have to actually be in the TOP of your class to secure employment after law school.  So everybody in your class will be gunning for the top 10% & law review.

4) Your legal degree will transfer with you anywhere you go just like any other degree.  I think what you may be asking about however is the bar license perhaps?  With respect to that, other countries have different legal systems and requirements so you'd have to look at each country on a case by case basis.

13
General Off-Topic Board / Re: Engineer looking into Law
« on: February 15, 2011, 05:30:20 PM »
I've read before that a BA in a science field can take the Patent bar and practice intellectual law without a JD. Have you thought about looking into that?

You can never practice law without a JD (and a bar license) but I think what you are probably referring to is becoming a Patent Agent which only requires the patent bar.  As a Mechanical Engineer, the OP qualifies to take the Patent Bar right now and could work as a Patent Agent for the USPTO in DC (pays around $50-60k last I looked) or work for Patent Attorneys to help clients in the prosecution of patents.

14
News Discussion / Re: Legal Theories on the Health Care bill?
« on: February 04, 2011, 02:13:24 PM »
I agree that no case to date is on point.  Although the proposition of regulating so-called "inactivity" may not be so far fetched as it seems on the surface. 

As the district court in Michigan noted, in Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964), the SCOTUS held that the Commerce Clause allowed Congress to compel those choosing not to engage in commerce to, in fact, engage in commerce.   Of course you could attempt to distinguish that case on the grounds that the hotel owners were already engaged in the commercial activity of running a hotel.  But I suppose if we accept the Michigan court's premise that, as humans who are always in need of medical care, we are already engaged in the commerce of the health care market, then it follows that our decision to buy or not to buy health insurance does have an effect on interstate commerce and is thus subject to regulation under the commerce clause.

What complicates this health care issue is the fact that the SCOTUS has never ruled that the test for whether something can be regulated by Congress under the commerce clause is whether that something is an activity or not. (It's always been assumed that it must be an activity).  Rather, the test of whether something can be regulated by the commerce clause is simply whether it effects interstate commerce. (going back to Heart of Atlanta Motel)

Again, as far as I'm aware, there is no Supreme Court case squarely on point that could settle the issue of whether the "thing" that effects interstate commerce MUST BE an activity as opposed to an omission. 

One thing's for sure though, the SCOTUS has to grant cert here.  There's no way this can be left to the circuits.


Boils down to Lopez in my mind. The test is whether or not this is regulating an activity that substantially affects interstate commerce.

Both Liberty U. and Florida (first one said constitutional, second said not) framed the issue that way. Is not buying health insurance an "activity"? If it is, it probably can be mandated. If it isn't, then it probably can't (under Lopez, anyway).

Liberty U. said basically said that the decision not to purchase health insurance is an activity and therefore it falls under the Commerce Clause.

Florida said that it is, almost by definition, inactivity (not buying insurance) and that Congress's power didn't reach that far.

It's not really Wickard/Gonzales because those cases, while regulating purely intrastate activity, were at least regulating activity (growing and consumption of wheat and marijuana, respectively). This isn't doing that. To play with Wickard a little, it would be more like the government mandating that you grow corn on your land (ignoring any seizure arguments or w/e; let's pretend we're solely in Commerce Clause land). I'm betting on 5-4 against.


By the way, the beautiful thing about the South Dakota law is that the legislature is trying to prove that they can't mandate the purchase of a firearm when, as a state government, they probably can.

15
News Discussion / Re: Legal Theories on the Health Care bill?
« on: February 04, 2011, 01:32:55 PM »
And the SCOTUS would be bound by the district courts because....?

 ;)

Right, it would be hard for anybody to argue that the Commerce Clause can require the people to buy something, but that's not exactly the issue in front of us.  The question presented here, rather, is whether the Federal government can create a tax for people who don't have health insurance.  This is where the Tax & Spend Clause will likely come into play.

I think this is really unlikely. Of the four district courts that have looked at this, all of them say that this isn't a tax. It's a regulatory penalty.

16
News Discussion / Re: Legal Theories on the Health Care bill?
« on: February 01, 2011, 09:59:48 PM »
That is quite possibly one of the worst slippery slope arguments of all time.  The federal government CLEARLY cannot compel any religion.  (See 1st Amendment)  And the gun argument is equally as silly.

I love the question being asked that if we can be compelled to buy health insurance what else can we be compelled to buy?  Guns?  Bibles?  Certain foods?  Where does it end?

Whether it's justified under taxation or commerce, where I get concerned is the setting of precedent.  Congress is attempting to tell citizens how they must spend some of their money.  Whether the net positive benefit to society outweighs the cost (and I do believe it does), is irrelevant IMO.  The crux of the issue to me is what precedent does it set if the Supreme Court allows the government to tell citizens how to spend their money?

Now, on the other hand if this was Universal Healthcare and they just taxed the citizens to pay for it, I see no legal issues with that.

17
News Discussion / Re: Legal Theories on the Health Care bill?
« on: February 01, 2011, 09:56:20 PM »
Hate to break this news to you, but Congress has been doing that for about 200 years now.  (see your paycheck)


Congress is attempting to tell citizens how they must spend some of their money. 

18
News Discussion / Re: Legal Theories on the Health Care bill?
« on: February 01, 2011, 12:52:12 PM »
Yeah but you're placing too much focus on the administration.  It doesn't matter what the Executive branch calls it or doesn't call it.  At the end of the day, whether it will be constitutional or not depends on how the Legislative branch drafted it.


Yes - but the judge, and others, have rightfully called bull$h*t on labeling this as a "tax."  At first the administration said it was not a tax, but then when they learned they needed it to be a tax, they called it one.

Right, it would be hard for anybody to argue that the Commerce Clause can require the people to buy something, but that's not exactly the issue in front of us.  The question presented here, rather, is whether the Federal government can create a tax for people who don't have health insurance.  This is where the Tax & Spend Clause will likely come into play. 

19
News Discussion / Re: Legal Theories on the Health Care bill?
« on: February 01, 2011, 12:46:55 PM »
For a 0L, you're doing a good job at asking the right questions.  When is the government overstepping?  Where is the line drawn?  Those are the right questsions to ask and, coincidentally, the questions that the Supreme Court was created to answer.

As far as regulating inaction, there's actually some support for this proposition if we go back to the Commerce Clause. See the landmark Supreme Court case Wickard v. Filburn.  It basically says that even if you're not literally engaging in interstate commerce, if your inaction, in the aggregate, has an effect on interstate commerce then the government is still within its right to regulate your "inactivity" because you are still effecting interstate commerce.

Here, the argument is that the inaction of millions of Americans in the aggregate is having an a effect on interstate commerce b/c it's driving up health insurance coverage. 

That being said, the Commerce Clause may not be the best way to argue this thing b/c Wickard did not go as far as taxing the farmer in that case for literally taking no action whatsoever.   They taxed him, rather, because his intra-state action was causing an effect on interstate commerce. Thus, the Tax & Spend clause is likely where the Health Care law will find its most support because whether we call it a "punishment" or not, the government still has the undisputed power to Tax.


Fair enough, so we'll go with a different analogy then.  If this is a Tax levied only when a citizen chooses NOT to do something, lets extend that logic out.

What if the government were then to decide that they could tax anyone that doesn't exercise regularly?  Or that by choosing NOT to buy a car, I would be fined/taxed a fee to help subsidize those that do?  Where does the ability to control your life end if they can tax inaction?

My argument would be that taxes can only be levied on money/goods/actions, not on inaction.  How can taxing for NOT taking an action be anything other than a punishment?

But perhaps a 0L is overstepping his own enumerated powers in attempting legal analysis on such a divisive topic.   ;)

Right, it would be hard for anybody to argue that the Commerce Clause can require the people to buy something, but that's not exactly the issue in front of us.  The question presented here, rather, is whether the Federal government can create a tax for people who don't have health insurance.  This is where the Tax & Spend Clause will likely come into play. 

Whether or not you actually buy the health insurance is up to you, but just like Medicare, Social Security, and FICA, the Federal government has the undisputed authority to Tax the people, regardless of whether you personally benefit from the proceeds of a particular Tax initiative or not. 

In other words, the Health Care "mandate" is not truly a "mandate" in the sense that the Draft was a mandate.  It's not literally forcing you to do anything.  If you don't buy health insurance, nothing happens to you, nobody comes to arrest you, nobody finds you in contempt of court, etc.  Now, of course, you can argue that the tax "punishes" those who freely choose not to buy health insurance, but it is difficult to see how characterizing an enumerated constitutional power of the federal government (ie. the power to  Tax) as a "punishment" will win the day in court.  I'm not saying it's impossible to make that argument, but it is a long shot.

Bottom line, even if the so-called "mandate" were to be found unconstitutional, then the most that would happen is that the mandate provision within the Health Care Act would be wiped off the books.  The Health Care Act itself would still remain.  So I think a lot of this talk about repealing the law is more fiction than fact.

Agreed, but the argument that needs to stop being made by all the politicians/pundits out there (including some lawyers) is the analogy between Car Insurance and Health Insurance.

Although you could force some sort of absurd logic saying that the uninsured cost people in the end, so it's a charge up front instead of getting hit on the back end, you still cant argue that car insurance (intended to cover the OTHER person's costs in an accident) and health insurance (intended to cover YOUR costs) are the same kind of thing.  If this logic has been worked out, I'd love to hear it, but otherwise the analogy is done.  Furthermore, even if the analogy was valid or you dont care to consider the intent, auto insurance is a state requirement, not a federal requirement. 

On the primary topic though, consider the precedent if this is allowed to go on.  50 years from now, the government might mandate that everyone buy an american made car, require every family to own a laptop for every child or otherwise force you to purchase a good or service you dont personally desire to spend money on.  Then you sue the federal government for overreaching, but precedent says that they can force you to purchase anything they can justify as necessary for the greater welfare.

Simply put, the Constitution does not grant under the CC the right to force people to buy things.




20
News Discussion / Re: Legal Theories on the Health Care bill?
« on: February 01, 2011, 12:23:38 PM »
Agreed.  The Auto Insurance/health insurance is a bad analogy for the reasons you stated.

The auto insurance/health insurance is a bad analogy.  The requirement for auto insurance comes from the STATE as a provision to owning a car, getting it licensed by the state, and driving it in the state.  Its not a federal mandate for everyone, regardless of whether they choose to own a car and drive it.


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